Chapter XXXV: Front Matter (35)

Mr. S. said he had heard it said for months past, by gentlemen of different opinions, that the aggressions of France against this country were lawful cause of war, and all have admitted that it has become a single question of expediency whether we shall declare war, or not. It was said no consideration but that of interest, would prevent its being done, and he did not believe there was any such. We have, said he, for a long time suffered all the mischiefs that can be inflicted upon us in a state of war, and, therefore, the single question is now, whether we will avail ourselves of the advantages which might be derived from declaring war; for, however trifling gentlemen may deem the distinction which he made between a state of hostility and war, he looked upon that distinction as real and material. In case of an invasion taking place before a declaration of war has been made, certain limited authorities are placed in the PRESIDENT, and in the Executives of the several States, with respect to the armed force; but, if a declaration of war has previously taken place, the direction of that force is placed wholly in the hands of the PRESIDENT OF THE UNITED STATES. If this declaration should be made, he should still deem it a war of defence on our part. Mr. S. said he rose to declare his opinion on this point, and to say he was in favor of the motion of the gentleman from Connecticut.

Mr. NICHOLAS supposed there could have been no doubt as to the intentions of the gentleman from Connecticut in bringing forward this resolution, though he expected it would have been found necessary to have made it more explicit. If the object was, as he had no doubt it was, to procure a proposition for a declaration of war, he hoped the resolution would be so amended as to embrace that object. At present, it was quite an unmeaning thing.

Mr. GALLATIN said, if he understood the resolution, it proposed the appointment of a committee, to declare what is the state of things between this country and France. He could not see with what propriety Congress could declare a statement of facts by a legislative act. It would be a little curious to pass a law to declare Mr. Gerry has no authority to treat with the French Government; or to declare that this room is sixty feet long, or any other fact. If the committee were to report what was necessary to be done, he could see the use of such a report.

Mr. LYON observed, that though this resolution was not so explicit as gentlemen might wish, yet such as it was, he was desirous it should pass. He wished to know the state of the country. Some say we are at war; others that we are in a state of hostility; others at peace. He wished to see a report on the subject. He had considered the country as in war for some time; if he was mistaken, he was desirous his mistake should be rectified. If we are at war, it would be well to request the PRESIDENT to get us peace as soon as he can.

The question on the resolution was put and negatived, without a division.

On motion of Mr. OTIS, the House went into a Committee of the Whole on the state of the Union, to take into consideration the bill from the Senate declaring our treaties with France void and of no effect. The committee being formed, and the bill having been read,

Mr. LIVINGSTON called for the reading of the treaties.

Mr. GALLATIN thought it would be sufficient to have certain parts of the treaties, which he mentioned, read. Mr. LIVINGSTON consented; but Mr. LYON persisted in the motion for reading the whole. On the question being taken, he only rose in favor of it. The parts of the treaties called for by Mr. G. were read.

Mr. SEWALL said, some doubts might be entertained, perhaps, as to the propriety of this measure. It is certainly a novel doctrine to pass a law declaring a treaty void; but the necessity arose from the peculiar situation of this country. In most countries, it is in the power of the Chief Magistrate to suspend a treaty whenever he thinks proper; here Congress only has that power. We have, said he, during this session, in a variety of cases, suspended the treaties in question, by authorizing measures of hostility against France, contrary to the stipulations contained therein. He believed it would be proper, therefore, to set aside these treaties by legal authority. But he confessed to do this, in the manner proposed by the Senate, would, at least, be inconvenient. He could not conceive that the Senate meant to go so far as this bill goes. We ought not to say the treaties are void and of no effect. They must have effect as historical facts; they must have effect, in our appeal to the world, on the ground of their having been violated, and in our claim upon France on account of those violations. There are also other articles which must have effect in case of war. He alluded to the articles which respect the situation of French citizens in this country, or American citizens in France, after war shall have been declared by either power. Mr. S., therefore, proposed a new form of a bill, more simple and with a much shorter preface, viz: "that, whereas the treaties have been in numerous instances violated, they are no longer to be considered as law within the United States," &c. It also proposed that any claim or restraint, stipulated by the said treaties, shall be abrogated and annulled.

The CHAIRMAN said this motion was not in order, and could not be received.

Mr. NICHOLAS saw no difference between the substitute proposed and the original bill. The gentleman from Massachusetts wished to retain the provision relative to the residence of the citizens of either country, after the declaration of war shall have taken place; but could that gentleman for a moment suppose that he could annul one part of a treaty and preserve other parts? The idea appeared to him a very extraordinary one.

Mr. RUTLEDGE hoped the committee would rise, and that the bill would be referred to a select committee. He believed it would be better to declare a part of the treaties void than the whole, which he thought might with propriety be done.

Mr. NICHOLAS had no objection to the committee's rising; but he could not believe we could take such parts of a treaty as we liked, and declare the rest void.

Mr. DANA believed that the gentleman from Virginia did not rightly apprehend what had been said by the gentleman from Massachusetts. Mr. D. admitted the impropriety of declaring void and of no effect a legal instrument which was originally valid. In his opinion, this impropriety might be avoided, and the object of the bill attained, by a different phraseology. He believed a proper mode of acting upon this business would be, to declare the stipulations of the French treaties no longer obligatory on the United States. This we may justly do, in consequence of their being disregarded by France.

As to the effect of such a declaration, he acknowledged that it must be regarded as abrogating all those articles of the treaties which are executory, such as stipulate for the future conduct of the parties. Agreeing thus far with the gentleman from Virginia, he would consent most cheerfully that all such articles should be set aside, as they respect both countries. But the declaration would not have any effect on articles which are executed, such as contain cessions or renunciations of territorial claims, and where a corresponding possession has taken place. The operation of these articles is completed, and cannot be reversed by the declaration now proposed.

Mr. D. then moved to amend the enacting clause, by expunging all the words after "That," and substituting "the United States are, of right, freed and exonerated from the stipulations of the treaties heretofore concluded between the United States and France, and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States."

Mr. OTIS approved of this motion, and, after a few observations by him in favor of it, the question was put and carried upon it without a division.

Mr. O. then moved to strike out the whole of this preamble; which motion being carried,

Mr. DANA proposed that the reasons for passing this bill should be condensed in the preamble, to read as follows: "Whereas, the treaties concluded between the United States and France have been repeatedly violated on the part of the French Government, and the just claims of the United States for reparation of the injuries so committed have been refused; and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity; and whereas, under the authority of the French Government, there is yet pursued against the United States a system of predatory violence infracting the said treaties, and hostile to the rights of a free and independent nation, therefore," &c.

The question on the preamble was put and carried--41 to 38.

The committee then rose, and the House took up the amendments. On the question being put on agreeing to the new preamble,

Mr. BAYARD said he thought it more in detail than was necessary. He thought it more like a State paper than the preamble of a law. He thought the preamble ought to go no further than to state sufficient ground for the act, which was about to be done; and he took it for granted that whenever a nation violates an essential article of a treaty, it is competent for the other party to declare the treaty no longer binding upon them. He, therefore, moved to strike out all the preamble after saying the treaties have been frequently violated. As to the French having committed depredations upon our commerce, and refused to negotiate with our Commissioners, though these circumstances may be a just cause of war, he did not know whether they were sufficient ground upon which to declare a treaty void.

Mr. KITTERA was against striking out. He could not agree that there could be causes for a declaration of war, which are not also causes for setting aside a treaty. The reverse of this position appeared to him to be true, viz: that there might be causes for declaring a treaty void, which would not be causes of war.

Mr. CRAIK was in favor of the preamble as it stood.

Mr. GORDON hoped the amendment would not prevail. It ought to be considered that if this bill passed into a law, it would be considered as a novel thing. It will be tantamount to a State declaration to annul a treaty, and there ought to be the grounds annexed to it which had led to the measure; and though the gentleman from Delaware is desirous of stating a sufficient cause, he did not think his motion went far enough. The practice of nations is, that when injuries are done, reparation is demanded; and it was necessary, in his opinion, to state that this demand had been made in vain, and that the injuries complained of are still continued.

Mr. S. SMITH hoped the amendment would be adopted. He disliked preambles very much. The reasons given by the gentleman from Delaware in favor of his motion he thought well founded. It would be much better to give one good reason for declaring the treaties no longer binding, than several doubtful ones. In his opinion there were some of this description as the preamble stands at present. He did not know that a reparation for injuries had been refused by France. He had seen nothing like an absolute demand made upon the French Government. The Envoys were empowered to make the demand; but, from their not having been duly received, the demand was never made. If it were made, it is clear it has not been complied with; but we have no evidence of its having been refused to be complied with. On the contrary, we see that on the 3d of April, Talleyrand had fixed a day on which he proposed to treat with Mr. Gerry on the subject of the disputes between the two countries. We have not heard the result of the conference; but it may have happened that Mr. Talleyrand has offered to make complete reparation for the injuries committed on our commerce, and this intelligence may arrive here a fortnight hence, and then a declaration of this sort would not have a good appearance. He thought, therefore, it would be better to strike these words out than to retain them.

Mr. S. presumed it was not yet _sedition_ for him to say that he believed proposals to treat would be made to our Commissioners, independent of any tribute, and such as this country might with honor accept. He hoped, therefore, no difficulty would be placed in the way, by passing the preamble as it now stands.

Mr. DANA was not generally in favor of fixing preambles to laws. Whenever the subject is such that it is obviously competent for the Legislature to act upon it; whenever the act proposed is, from its nature, completely within the usual Legislative powers, and, without any explanation, appears perfectly consistent with national honor and propriety, a preamble is unnecessary. But ought this to be said of the subject under consideration? Whence is it that the United States may abrogate the treaties with France? Is it because the Legislature may, at pleasure, set aside a treaty? If it is proper to do this, without any external cause, a preamble is needless in the present instance. According to his view of the subject, the act was founded on a different principle. France has violated the faith pledged by her treaties with America: this, by the law of nations, puts it within the option of the Legislature to decide, as a question of expediency, whether the United States shall any longer continue to observe their stipulations. It is owing to the perfidy of the French Government that the abrogation of our treaties with that nation has become justifiable and necessary. As an American, he hoped the United States would always regard the faith due to treaties, and that all their acts would, on the face of them, appear consistent with it. In this respect, he wished the conduct of the American Government to exhibit a marked contrast to French perfidy. It is of importance to the fairness of our national character. Therefore it is that the facts should be stated which have led to this measure.

The gentleman from Delaware, in support of the amendment which he has moved, supposes it sufficient to state one cause for setting aside the treaties. He is understood to admit that a sufficient cause should be stated. In this principle, said Mr. D., we are agreed. But the question arises, whether a violation of the treaties on the part of France is, of itself, sufficient for setting them aside? The idea of Mr. D. was, that it would not be sufficient, according to the liberal principles which should be cherished in the United States. A treaty might be violated by the imprudence of some person in authority, or by persons acting without authority; and yet the foreign Government, on proper representations, might be willing to redress the injury. In such case, it would ill become the Government of the injured party immediately to dissolve friendly connections. Why is it now deemed requisite to abrogate the treaties by which this country has been connected with France? It is because France has not only violated them, but has also refused that attention which was due to our representations on the subject, and persists in the violation. On this account, and in order to show that the United States were completely justifiable in taking the measure, he was against the amendment of the gentleman from Delaware, and in favor of retaining the several clauses of the preamble.

A gentleman from Maryland (Mr. SMITH) has declared himself in favor of this amendment, because, in his view, there is no proof that our claim for the injuries committed on our rights, as a neutral nation, have been refused to be adjusted by France. The reason assigned for this opinion is so extraordinary that it may astonish every man acquainted with subjects of this nature. It is, that the French would not receive the Envoys charged with this business, or permit their speaking to them, although they waited for months at the palace-gate of Directorial Arrogance supplicating in vain for an audience. Were the gentleman from Maryland to go himself, or send one of his clerks, to present a demand for a sum justly due to him, if his debtor, instead of discharging or attending to the account, would not consent even to hear him on the subject, but should kick him from the door, or order a servant to do it, would not the gentleman consider such conduct as a refusal to satisfy the demand. He who knows that claims of justice merit the respect of Governments, as well as of individuals, and ought never to be neglected without reasonable cause, must know that evasions, intentional procrastination, and affected delays, are equivalent to a refusal of satisfaction. This is the doctrine of reason, of common sense, of municipal law, and of the law of nations. The facts stated in the preamble, therefore, are strictly true; they are established by the very statement which the gentleman has made to disprove them. And since he has made a question on the subject, it is of additional importance for the Legislature to declare its conviction of their truth.

Mr. CRAIK believed with the gentleman from Connecticut, last up, that from the declaration of his colleague this question was of consequence. He believed gentlemen were now called upon to testify to the truth of this statement, since it had been doubted. The people ought not to be left in doubt on this subject.

Mr. OTIS said, exactly the same effect which had been produced upon the mind of the gentleman last up, was also produced upon his. Before he had heard the arguments of the gentleman from Maryland in its favor, he intended to vote for the motion of the gentleman from Delaware, as being more concise, and as he thought stating sufficient ground for the act about to be passed; but when that gentleman says we have no evidence of reparation for the injuries committed upon our commerce being refused to be made, the abhorrence he felt at the idea of being ranked among members of this opinion would lead him to vote against it. He believed the facts stated in the preamble unquestionably true, and he did not think there could have been a man in the United States who had a doubt on the subject. He believed there could be no doubt that when a sum of money is neglected to be paid, when due, though the debtor may refuse to see any person authorized to make the demand, that it is legally refused to be paid.

If the documents on the table were examined, Mr. O. said it would be found, that so far from Mr. Talleyrand having listened to the claims of our Commissioners, he had expressed his surprise that they should have been made, alleging that the priority of claim was on the part of the French Government. Mr. O. made several other observations, when he concluded by saying, that if any offers of pacification were made by men of the description of those at present in power in the French Directory, he should have no confidence in them: he should think them insidious, and that they originated in their fears, and were intended to effect our ruin.

Mr. HARPER said he would say only a few words in justification of his vote in favor of the present motion. He disliked preambles altogether. He voted against the one from the Senate, and he should be in favor of reducing this; for, if we must have a preamble, he thought the less the better. It is the business of the Legislature, Mr. H. said, to pass laws; if a manifesto is proper to be published on this occasion, it would more probably fall under the Executive Department. It is his business to issue State papers, and he could do it much better than it could be done in this House. He was sorry it should be thought necessary to have any preface at all to the law, as it was departing from a good old rule laid down by Congress.

Mr. S. SMITH was not convinced, by any thing that had been said against this motion, that what he had before stated was ill-founded. It had been asked whether, if he sent three persons to demand a debt, and the debtor ordered them away without seeing them, he should not consider the act as a refusal to pay. He answered, he should. But he would put a case, which he thought more in point. Were he to send three persons to settle an account with a debtor, and he were to send two of them home again, but keep one, and promise to adjust the business with him, he should naturally expect he would do so, and should not think of proceeding to any rigorous measures with him, until he heard the result.

The gentleman from Massachusetts has said that he can never consent to accept of any terms from the present Executive Directory, as he shall consider them insidious, and not to be relied upon. After a two years' war, perhaps, he may be of a different opinion. Mr. S. said he should be as unwilling as any man to accept of any terms from the French Government which would be derogatory to the United States; but if the Directory will engage that all the depredations upon our commerce shall cease, and will offer to treat with us on equitable terms, (which he did not think improbable,) he should be for acceding, most cheerfully, to the proposal.

Mr. GALLATIN said he should vote against the motion to strike out a part of the preamble agreed to in the Committee of the Whole. He was of opinion with gentlemen, that it was better to pass laws in general, without preambles; but this proceeding is altogether of a novel nature. He knew of no precedent of a Legislature repealing a treaty. It is therefore an act of a peculiar kind, and it appeared to him necessary that Congress should justify it by a declaration of their reasons. Nor could he understand the argument of the gentleman from South Carolina, when he said the Executive Department was better calculated for the publishing of a manifesto than the Legislature, or, in other words, could assign the reasons that influenced Congress better than Congress themselves. If, then, a preamble is to be adopted, it ought to contain those reasons which operated in producing the law. He thought this would be more correctly stated by leaving the preamble as it is, than by adopting the amendment.

There was also another reason for preserving the preamble as at present. The French have violated the Treaty of Commerce made with this country; but it would be rather difficult for any gentleman to show that repeated violations have taken place of our Treaty of Alliance with France. The ground of complaint is, that France has violated the Treaty of Commerce between the two countries, and the laws of nations, and not the Treaty of Alliance; and, therefore, a breach of that treaty is not the reason why it is set aside. Besides, if repeated violations of a treaty are sufficient reasons for setting it aside, it could not be forgotten that certain orders had been issued by another country, which are not conformable to our treaty with that power. So, that it is not sufficient to say, that because a treaty has been violated, we will repeal it; but we ought to show to the world that repeated attempts have been made, in vain, to obtain redress.

But the gentleman from Maryland is apprehensive that the statement of the French Government having refused to make reparation for the injuries committed upon our commerce could not be correct, from the possibility of Mr. Gerry having succeeded in making a treaty since the date of our last despatches. He acknowledged there was a bare possibility of the fact being so; but this ought to operate as a reason against passing the bill at all, and not against the preamble.

Mr. EDMOND said, he voted for rejecting the Senate's preamble. It appeared to him that no preamble was necessary. For, if it were necessary to state the reasons which induced the passing of this act, it would be proper to state all the reasons, and to do that would be a work of considerable time; and, upon the facts stated, there might probably be a considerable difference of opinion. If reasons were stated for passing this law, and, at a future day, when an adjustment of differences should take place, the negotiator on the part of the United States were to adduce other reasons for passing this act than are stated in this preamble, it might be stated by the negotiator, on the part of France, why do you muster up complaints now, which you did not think of when the law passed? He therefore thought it would be best to pass the law without a preamble at all.

No question in the laws of nations, Mr. E. said, was more clear, than that, when a treaty is violated by one nation, the other party, who has maintained good faith, may either discharge themselves from the obligations of it, or, if kindly disposed, they may set on foot a negotiation, or they may declare war, without doing either of the other two. He laid it down as a further principle, that where there are several treaties in existence between two countries, and one of them is violated, the injured party may demand satisfaction; and if it be not given, they may declare the whole of the treaties void. He therefore was of opinion that France having violated our treaty with her, we have a right, without assigning any reason for it, to set it aside; and as we have repeatedly applied to them for redress, and they have refused to grant it, we have a right to reject the whole or to declare war, without assigning any reason whatever. However, if we wish to appear fair in the eyes of the world, we may, if we please, assign a reason for our act; but, in this case, he would either give all the reasons which exist, or make them as precise as possible. He should, therefore, vote in favor of striking out the words in question.

The question to strike out was negatived; and the question being taken on the preamble, it was carried--there being 53 votes for it.

The bill was ordered for a third reading this day. It afterwards received its third reading, and was passed--yeas 47, nays 37, as follows:

YEAS.--John Allen, George Baer, jr., Bailey Bartlett, Jas
A. Bayard, David Brooks, Stephen Bullock, Christopher G.
Champlin, John Chapman, James Cochran, Joshua Coit, William
Craik, Samuel W. Dana, George Dent, William Edmond, Abiel
Foster, Dwight Foster, Jonathan Freeman, Henry Glenn,
Chauncey Goodrich, William Gordon, Roger Griswold, William
Barry Grove, Robert Goodloe Harper, Thomas Hartley, William
Hindman, Hezekiah L. Hosmer, Jas. H. Imlay, John Wilkes
Kittera, Samuel Lyman, William Matthews, Harrison G. Otis,
Isaac Parker, John Read, John Rutledge, jr., James
Schureman, Samuel Sewall, William Shepard, Thos.
Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg
Sprague, George Thatcher, Richard Thomas, Mark Thompson,
Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth.

NAYS.--Abraham Baldwin, David Bard, Thos. Blount, Dempsey
Burges, Thomas Claiborne, William Charles Cole Claiborne,
John Clopton, John Dawson, Thomas Evans, John Fowler,
Albert Gallatin, James Gillespie, Andrew Gregg, John A.
Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph
Heister, David Holmes, Walter Jones, Edward Livingston,
Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair
McClenachan, Joseph McDowell, Anthony New, John Nicholas,
Samuel Smith, William Smith, Richard Sprigg, jr., Richard
Stanford, Thomas Sumter, John Trigg, Philip Van Cortlandt,
Joseph B. Varnum, Abraham Venable, and Robert Williams.

TUESDAY, July 10.

_Punishment of Crimes._

The bill, in addition to the act for punishing crimes against the United States, and for other purposes, was read the third time; when

Mr. SITGREAVES wished the bill to be recommitted. It had been suggested to him that great inconvenience arises in the Federal Courts, from its having been conceived that they have not the power to bind to good behavior, and he was desirous of removing this defect, by adding a section to this bill for the purpose.

Mr. BAYARD thought the gentleman from Pennsylvania had better bring this subject forward by itself, than have this bill recommitted, as it was no way connected with it.

Mr. SITGREAVES consented.

The question was now on the passing of the bill.

Mr. MCDOWELL called for the yeas and nays upon it.

Mr. NICHOLAS rose, he said, to ask an explanation of the principles upon which this bill is founded. He confessed it was strongly impressed upon his mind, that it was not within the powers of the House to act upon this subject. He looked in vain amongst the enumerated powers given to Congress in the constitution, for an authority to pass a law like the present; but he found what he considered as an express prohibition against passing it. He found that, in order to quiet the alarms of the people of the United States with respect to the silence of the constitution as to the liberty of the press, not being perfectly satisfied that the powers not vested in Congress remained with the people, that one of the first acts of this Government was to propose certain amendments to the constitution, to put this matter beyond doubt, which amendments are now become a part of the constitution. It is now expressly declared by that instrument, "that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;" and, also, "that Congress shall make no law abridging the freedom of speech, or of the press."

Mr. N. asked whether this bill did not go to the abridgment of the freedom of speech and of the press? If it did not, he would be glad if gentlemen would define wherein the freedom of speech and of the press consists.

Mr. N. wished gentlemen, before they give a final vote on this bill, to consider its effects; and, if they do this, he thought they would consent to stop here. He desired them to reflect on the nature of our Government; that all its officers are elective, and that the people have no other means of examining their conduct but by means of the press, and an unrestrained investigation through them of the conduct of the Government. Indeed, the heart and life of a free Government, is a free press; take away this, and you take away its main support. You might as well say to the people, we, your Representatives, are faithful servants, you need not look into our conduct; we will keep our seats for a little longer time than that for which you have given them to us. To restrict the press, would be to destroy the elective principle, by taking away the information necessary to election, and there would be no difference between it and a total denial of the right of election, but in the degree of usurpation.

Mr. OTIS said, the professions of attachment to the constitution, made by the gentleman from Virginia, are certainly honorable to him; and he could not believe that an attachment so deeply engrafted, as he states his to be, would be shaken by this bill. The gentleman had caught an alarm on the first suggestion of a sedition bill, which had not yet subsided; and though the present bill is perfectly harmless, and contains no provision which is not practised upon under the laws of the several States in which gentlemen had been educated, and from which they had drawn most of their ideas of jurisprudence, yet the gentleman continues to be dissatisfied with it.

The objections of the gentleman from Virginia, he believed, might be reduced to two inquiries. In the first place, had the constitution given Congress cognizance over the offences described in this bill prior to the adoption of the amendments to the constitution? and, if Congress had that cognizance before that time, have those amendments taken it away? With respect to the first question, it must be allowed that every independent Government has a right to preserve and defend itself against injuries and outrages which endanger its existence; for, unless it has this power, it is unworthy the name of a free Government, and must either fall or be subordinate to some other protection. Now some of the offences delineated in this bill are of this description. Unlawful combinations to oppose the measures of Government, to intimidate its officers, and to excite insurrections, are acts which tend directly to the destruction of the constitution, and there could be no doubt that the guardians of that constitution are bound to provide against them. And if gentlemen would agree that these were acts of a criminal nature, it follows that all means calculated to produce these effects, whether by speaking, writing, or printing, were also criminal. From the nature of things, therefore, the National Government is invested with a power to protect itself against outrages of this kind, or it must be indebted to and dependent on an individual State for its protection, which is absurd. This essential right resulting from the spirit of the constitution, was still more evident in the language of that instrument. The people of the individual States brought with them as a birthright into this country the common law of England, upon which all of them have founded their statute law. If it were not for this common law, many crimes which are committed in the United States would go unpunished. No State has enacted statutes for the punishment of all crimes which may be committed; yet in every State he presumed there was a Superior Court which claimed cognizance of all offences against good morals, and which restrained misdemeanors and opposition to the constituted authorities, under the sanction merely of the common law. When the people of the United States convened for the purpose of framing a federal compact, they were all habituated to this common law, to its usages, its maxims, and its definitions. It had been more or less explicitly recognized in the constitution of every State, and in that of Maryland it was declared to be the law of the land. If, then, we find in an instrument digested by men who were all familiarized to the common law, not only that the distribution of power, and the great objects to be provided for are congenial to that law, but that the terms and definitions by which those powers are described, have an evident allusion to it, and must otherwise be quite inexplicable, or at best of a very uncertain meaning, it will be natural to conclude that, in forming the constitution, they kept in view the model of the common law, and that a safe recourse may be had to it in all cases that would otherwise be doubtful. Thus we shall find that one great end of this compact, as appears in the preamble, is the establishment of justice, and for this purpose a Judicial department is erected, whose powers are declared "to extend to all cases in law and equity, arising under the constitution, the laws of the United States," &c. Justice, if the common law ideas of it are rejected, is susceptible of various constructions, but agreeably to the principles of that law, it affords redress for every injury, and provides a punishment for every crime that threatens to disturb the lawful operations of Government. Again, what is intended by "cases at law and equity arising under the constitution," as distinguished from cases "arising under the laws of the United States?" What other law can be contemplated but common law; what sort of equity but that legal discretion which has been exercised in England from time immemorial, and is to be learnt from the books and reports of that country? If it be answered that these words comprise civil controversies only, though no reason appears for this distinction, yet what is to be done with other terms, with trial, jury, impeachment, &c., for an explanation of all which, the common law alone can furnish a standard? It has been said by the gentleman that the constitution has specified the only crimes that are cognizable under it; but other crimes had been made penal at an early period of the Government, by express statute, to which no exception had been taken. For example, stealing public records, perjury, obstructing the officers of justice, bribery in a Judge, and even a contract to give a bribe, (which last was a restraint upon the liberty of writing and speaking,) were all punishable, and why? Not because they are described in the constitution, but because they are crimes against the United States--because laws against them are necessary to carry other laws into effect; because they tend to subvert the constitution. The same reasons applied to the offences mentioned in the bill.

Mr. MACON said, the same section of the constitution which forbids any interference with the freedom of speech and of the press, extends also to religious establishments, and says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This bill ought to be considered, therefore, as the commencement of a system which might as well be extended to the establishment of a national religion, as to a "restraint of speech, and of the press." He acknowledged the bill was less exceptionable than when it came from the Senate; but it yet contained the principle which he considered as violating the constitution.

Mr. M. said, he had attended to all that had been said in support of this bill; but could find nothing like argument in it. When the words of the constitution were so express, it seems impossible they could be understood as the gentleman from Massachusetts had represented them. Several authorities, Mr. M. said, had been read to show that this bill will form a constitutional law. He believed, however, far more might be adduced to show the reverse. He believed the best way of coming at the truth of the construction of any part of the constitution, was, by examining the opinions that were held respecting it when it was under discussion in the different States.

Mr. M. then proceeded to quote the opinions of the leading members in several of the State conventions, in order to show, from the opinions of the friends of the constitution, that it was never understood that prosecutions for libels could take place under the General Government; but that they must be carried on in the State courts, as the constitution gave no power to Congress to pass laws on this subject. Not a single member in any of the conventions gave an opinion to the contrary. The following are the words of Judge Iredell, of North Carolina, on the occasion. Judge Wilson, of this State, and several others, were equally strong; but we have them not at hand, and if we had, to give extracts from the whole would occupy too much room. In the Convention of North Carolina, in reply to a member who had said that the General Government might make it treason to write against the most arbitrary proceedings, but who, it appears, afterwards corrected himself, and said he meant only misprision of treason, and only that it might be done within the ten miles square, where they were to have exclusive legislation, Judge Iredell, thus spoke:

"Where is the power given them to do this? They (Congress)
have power to define and punish piracies and felonies
committed on the high seas, and offences against the law of
nations; but they have no power to define _any other crime
whatever_. This shows how apt gentlemen are to commit
mistakes. The powers of the Government are particularly
enumerated and defined. They can claim no others but such
as are so enumerated. In my opinion, they are excluded as
much from the exercise of any other authority, as they
could be by the strongest negative clause that could be
framed."

Gentlemen, Mr. M. said, might call this a harmless bill; but however harmless it may be, it is a beginning to act upon forbidden ground, and no one can say to what extent it may hereafter be carried. He thought this subject of the liberty of the press was sacred, and ought to be left where the constitution had left it. The States have complete power on the subject, and when Congress legislates, it ought to have confidence in the States, as the States ought also to have confidence in Congress, or our Government is gone. This Government depends upon the State Legislatures for existence. They have only to refuse to elect Senators to Congress, and all is gone. He believed there was nowhere any complaint of a want of proper laws under the State Governments; and though there may not be remedies found for every grievance in the General Government, what it wants of power will be found in the State Governments, and there can be no doubt but that power will be duly exercised when necessity calls for it.

Mr. LIVINGSTON said, that notwithstanding the sarcasms which had been thrown out against those who oppose this measure; notwithstanding that kind of accommodating principle which has been set up and reiterated, that the powers of this constitution extend to every possible case--a principle which goes to the destruction of State authorities, and makes that instrument mean any thing or nothing--notwithstanding this, he should again venture to engage the attention of the House while he endeavored to show that this bill is not only contrary to the spirit, but to the direct letter of the constitution.

The constitution declares that "no law shall be passed to abridge the liberty of speech or of the press." Let us inquire, said Mr. L., what was the liberty enjoyed at the time this declaration was agreed to, and see whether citizens will enjoy the same liberty after this law passes that they then enjoyed. Will gentlemen say that the same liberty of writing and speaking did not exist then that now exists? If they will not say this, must they not allow that the constitution is positive in prohibiting any change in this respect? Gentlemen may call this liberty an evil, if they please; if it be an evil, (which he was far from believing,) it is an evil perpetrated by the constitution.

The constitution seems to have contemplated cases which might arise at a future day. It seems to have foreseen that majorities (far be it from him to believe the present majority is of the number) might be actuated by dispositions hostile to the Government; that it might wish to pass laws to suppress the only means by which its corrupt views might be made known to the people, and therefore says, _no_ law shall be passed to abridge the liberty of speech and of the press. This privilege is connected with another dear and valuable privilege--the liberty of conscience. What is liberty of conscience? Gentlemen may to-morrow establish a national religion agreeably to the opinion of a majority of this House, on the ground of a uniformity of worship being more consistent with public happiness than a diversity of worship. The doing of this is not less forbidden than the act which the House are about to do. But, it is said, will you suffer a printer to abuse his fellow-citizens with impunity, ascribing his conduct to the very worst of motives? Is no punishment to be inflicted on such a person? Yes. There is a remedy for offences of this kind in the laws of every State in the Union. Every man's character is protected by law, and every man who shall publish a libel on any part of the Government, is liable to punishment. Not, said Mr. L., by laws which we ourselves have made, but by laws passed by the several States. And is not this most proper? Suppose a libel were written against the PRESIDENT, where is it most probable that such an offence would receive an impartial trial? In a court, the judges of which are appointed by the PRESIDENT, by a jury selected by an officer holding his office at the will of the PRESIDENT? or in a court independent of any influence whatever? The States are as much interested in the preservation of the General Government as we are. We do wrong when we attempt to set up interests independent of the States. They are all desirous of preserving the constitution as it now stands; and it is, therefore, much more probable that justice will be found in a court in which neither of the parties have influence, than in one which is wholly in the power of the PRESIDENT.

The bill was then passed--yeas 44, nays 41, as follows:

YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James
A. Bayard, David Brooks, Christopher G. Champlin, John
Chapman, James Cochran, Joshua Coit, Samuel W. Dana,
William Edmond, Thomas Evans, Abiel Foster, Dwight Foster,
Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William
Gordon, Roger Griswold, William Barry Grove, Robert Goodloe
Harper, Thomas Hartley, William Hindman, Hezekiah L.
Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman,
Harrison G. Otis, Isaac Parker, John Read, John Rutledge,
jun., James Schureman, Samuel Sewall, William Shepard,
Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith,
Peleg Sprague, George Thatcher, Richard Thomas, Mark
Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg
Wadsworth.

NAYS.--Abraham Baldwin, David Bard, Lemuel Benton, Thomas
Blount, Richard Brent, Stephen Bullock, Dempsey Burges,
Thomas Claiborne, William Charles Cole Claiborne, John
Clopton, John Dawson, George Dent, John Fowler, Albert
Gallatin, James Gillespie, Andrew Gregg, John A. Hanna,
Carter B. Harrison, Jonathan N. Havens, Joseph Heister,
David Holmes, Walter Jones, Edward Livingston, Matthew
Locke, Matthew Lyon, Nathaniel Macon, William Matthews,
Blair McClenachan, Joseph McDowell, Anthony New, John
Nicholas, Samuel Smith, William Smith, Richard Sprigg,
jun., Richard Stanford, Thomas Sumter, John Trigg, Philip
Van Cortlandt, Joseph B. Varnum, Abraham Venable, and
Robert Williams.

FRIDAY, July 13.

_Capture of French armed vessels._

The House went into a Committee of the Whole on the bill for encouraging the capture of French armed vessels by armed vessels belonging to citizens of the United States; which was agreed to without debate or amendment, and ordered to be read a third time to-day. It was accordingly immediately read a third time; when

Mr. MCDOWELL said, he hoped this bill would not pass. Congress had already passed laws authorizing public and private armed vessels to attack and take French vessels; but they are now called upon to give a bounty upon the guns that are brought in, according to their size. He was not willing to allow this. It would open a door to innumerable frauds. Plans would be laid between the owners of privateers here and their friends in the West Indies, and vessels and arms would be thrown in their way for the purpose of capture, and in this manner our Treasury would be drained to an extent which no man could at present foresee. He could see no use in the provision, as it would not induce merchant vessels to go in search of French vessels; and, without some unfair play, it would never be worth the while of persons fitting out privateers for the purpose. He called the yeas and nays upon it. They were taken accordingly, and were, yeas 34, nays 36, as follows:

YEAS.--John Allen, Bailey Bartlett, James A. Bayard, David
Brooks, Christopher G. Champlin, Joshua Coit, William
Craik, Samuel W. Dana, William Edmond, Abiel Foster, Dwight
Foster, Henry Glenn, Chauncey Goodrich, William Gordon,
Roger Griswold, Robert Goodloe Harper, Thomas Hartley,
William Hindman, Hezekiah L. Hosmer, James H. Imlay, John
Wilkes Kittera, Samuel Lyman, Harrison G. Otis, Isaac
Parker, John Read, John Rutledge, jun., James Schureman,
Samuel Sewall, Thomas Sinnickson, Samuel Sitgreaves,
Nathaniel Smith, George Thatcher, Mark Thompson, and John
E. Van Allen.

NAYS.--David Bard, Thomas Blount, Richard Brent, Dempsey
Burges, Thomas Claiborne, William Charles Cole Claiborne,
John Clopton, John Dawson, George Dent, Albert Gallatin,
James Gillespie, William Barry Grove, Carter B. Harrison,
Jonathan N. Havens, Joseph Heister, David Holmes, Walter
Jones, Edward Livingston, Matthew Locke, Matthew Lyon,
Nathaniel Macon, Blair McClenachan, Joseph McDowell,
Anthony New, John Nicholas, Samuel Smith, William Smith,
Richard Sprigg, jr., Richard Stanford, Thomas Sumter,
Thomas Tillinghast, John Trigg, Philip Van Cortlandt,
Joseph B. Varnum, Abraham Venable, and Robert Williams.

And so the said bill was rejected.

SATURDAY, July 14.

The hour having arrived, at which the call of the House was to be made, the names of the members were called over, eighty-two members (including the Speaker) appeared in their seats, twenty-three absent, twenty of whom have leave, one sick, and two for whom excuses were made, and received by the House.

_Capture of French vessels._

Mr. SITGREAVES, called up for decision the resolution he laid on the table yesterday, viz:

_Resolved_, That a committee be appointed to prepare and
bring in a bill for giving a bounty on the capture of
French armed ships or vessels, by armed ships or vessels
owned by a citizen or citizens of the United States.

The question on the resolution, was then put and negatived--yeas 40, nays 41.

And so the motion was rejected.

MONDAY, July 16.

_Intercourse with France._

Another bill was received from the Senate, to amend the act for suspending the commercial intercourse between the United States and France and her dependencies.

Mr. NICHOLAS moved to postpone this bill till next session.

Mr. HARPER hoped not. This bill, he said, was very different from the one which had been negatived. That proposed to dispense with sureties altogether; this only to lower the amount of the bond. Instead of the owner giving security in a sum equal to the amount of vessel and cargo, and finding two sureties in half the sum, this bill proposes that the owner and master shall be bound in a sum equal to the amount of the value of the vessel, and a surety in from one to ten thousand dollars. To exact a bond equal to the amount of the vessel and cargo in every case, would be very inconvenient. They are sometimes very valuable. There is now, he said, a vessel in this port ready to sail, whose cargo is worth $300,000. To exact from the owner a bond to the full amount, and two sureties in half the sum, would be requiring a very heavy security from them. It would be sufficient, he thought, to require a bond equal to the profit which it is probable would be derived from any voyage.

Mr. S. SMITH said, this bill was certainly very different from that which had been rejected by this House, though it did not meet with his approbation at present. It was capable, however, of amendment. The security at present proposed was not worthy of the name. Had he a ship ready to sail such as the gentleman last up had named, he would willingly forfeit the sum proposed, to have the privilege of sending her to a French market. The difference in price between a French and a Hamburg market would make it well worth his while to do so. In many cases, such a voyage would afford 50 per cent. A regulation something like the present could only secure the fair trader; but the surety must be a much larger sum than $10,000.

The committee rose, however, and Mr. SMITH renewed his amendment in the House, when it was agreed to, after some objections to it from Mr. BAYARD--36 to 28. The bill was then ordered to be read a third time, received its third reading, and passed.

The House having received all the bills from the PRESIDENT, and the business of the two Houses being finished, the SPEAKER adjourned the House till the first Monday in December next.

FIFTH CONGRESS.--THIRD SESSION.

BEGUN AT THE CITY OF PHILADELPHIA, DECEMBER 3, 1798.

PROCEEDINGS IN THE SENATE.

MONDAY, December 3, 1798.

The third session of the fifth Congress commenced this day, conformably to the provision of the constitution, and the Senate assembled at the city of Philadelphia, in their Chamber.

PRESENT:

JOHN LANGDON and SAMUEL LIVERMORE, from New Hampshire.

THEODORE FOSTER and RAY GREENE, from Rhode Island.

WILLIAM BINGHAM, from Pennsylvania.

HUMPHREY MARSHALL, from Kentucky.

JACOB READ, from South Carolina.

JAMES GUNN, from Georgia.

DANIEL SMITH, appointed a Senator by the Executive of the State of Tennessee, in the recess of that Legislature, in place of Andrew Jackson, resigned, took his seat in the Senate.