Recollect, sir, that it has been proved that the United States may acquire territory. Territory, so acquired, becomes from the acquisition itself a portion of the territories of the United States, or may be united with their territories without being erected into a State. A union of territory is one thing; of States, another. Both are exemplified by an actual existence. The United States possess territory, comprised in the union of territory, and not in the union of States. Congress is empowered to regulate or dispose of territorial sections of the Union, and have exercised the power; but it is not empowered to regulate or dispose of State sections of the Union. The citizens of these territorial sections are citizens of the United States, and they have all the rights of citizens of the United States; but such rights do not include those political rights arising from State compacts or governments, which are dissimilar in different States. Supposing the General Government or treaty-making power have no right to add or unite States and State citizens to the Union, yet they have a power of adding or uniting to it territory and territorial citizens of the United States.
The territory is ceded by the first article of the treaty. It will no longer be denied that the United States may constitutionally acquire territory. The third article declares that “the inhabitants of the ceded territory shall be incorporated in the Union of the United States.” And these words are said to require the territory to be erected into a State. This they do not express, and the words are literally satisfied by incorporating them into the Union as a Territory, and not as a State. The constitution recognizes and the practice warrants an incorporation of a Territory and its inhabitants into the Union, without admitting either as a State. And this construction of the first member of the article is necessary to shield its two other members from a charge of surplusage, and even absurdity. For if the words “the inhabitants of the ceded territory shall be incorporated in the Union of the United States” intended that Louisiana and its inhabitants should become a State in the Union of States, there existed no reason for proceeding to stipulate that these same inhabitants should be made “citizens as soon as possible, according to the principles of the Federal Constitution.” Their admission into the Union of States would have made them citizens of the United States. Is it not then absurd to suppose that the first member of this third article intended to admit Louisiana into the Union as a State, which would instantly entitle the inhabitants to the benefit of the article of the constitution declaring, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,” and yet to have gone on to stipulate for citizenship, under the limitation “as soon as possible, according to the principles of the Federal Constitution,” after it had been bestowed without limitation? Again, the concluding member of the article is to bestow “protection in the mean time;” incorporating this stipulation, and the stipulation for citizenship, with the construction which accuses the treaty of unconstitutionality, the article altogether must be understood thus: “The inhabitants of the ceded territory shall be taken into the Union of States, which will instantly give them all the rights of citizenship, after which they shall be made citizens as soon as possible; and after they are taken into the Union of States, they shall be protected in the interim between becoming a State in the Union, and being made citizens, in their liberty, property, and religion.”
By supposing the first member of the article to require that the inhabitants and their territory shall be incorporated in the Union, in the known and recognized political character of a Territory, these inconsistencies are avoided, and the article reconciled to the constitution, as understood by the opposers of the bill; the stipulation also for citizenship “as soon as possible” according to the principles of the constitution, and the delay meditated by these words, and the subsequent words “in the mean time,” so utterly inconsistent with the instantaneous citizenship, which would follow an admission into the Union as a State, are both fully explained. Being incorporated in the Union as a Territory, and not as a State, a stipulation for citizenship became necessary; whereas it would have been unnecessary had the inhabitants been incorporated as a State, and not as a Territory. And as they were not to be invested with citizenship by becoming a State, the delay which would occur between the incorporation of the Territory into the Union and the arrival of the inhabitants to citizenship according to the principles of the constitution, under some uniform rule of naturalization, exhibited an interim which demanded the concluding stipulation, for “protection in the mean time for liberty, property, and religion.” As a State of the Union, they would not have needed a stipulation for the safety of their “liberty, property and religion;” as a Territory, this stipulation would govern and restrain the undefined power of Congress to make “rules and regulations for Territories.”
Mr.Tracy.—Mr. President: I shall vote against this bill, and will give some of the reasons which govern my vote in this case.
It is well known that this bill is introducedto carry into effect the treaty between the United States and France, which has been lately ratified. If that treaty be an unconstitutional compact, such a one as the President and Senate had no rightful authority to make, the conclusion is easy, that it creates no obligation on any branch or member of the Government to vote for this bill, or any other, which is calculated to carry into effect such unconstitutional compact.
The third and seventh articles of the treaty are, in my opinion, unconstitutional.
The third article is in the following words:
“The inhabitants of the ceded territory shall be incorporated into the Union of the United States, and admitted, as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and, in the mean time, they shall be maintained in the free enjoyment of their liberty, property, and the religion they profess.”
“The inhabitants of the ceded territory shall be incorporated into the Union of the United States, and admitted, as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and, in the mean time, they shall be maintained in the free enjoyment of their liberty, property, and the religion they profess.”
The obvious meaning of this article is, that the inhabitants of Louisiana are incorporated, by it, into the Union, upon the same footing that the Territorial Governments are, and, like them, the Territory, when the population is sufficiently numerous, must be admitted as a State, with every right of any other State.
Have the President and Senate a constitutional right to do all this?
When we advert to the constitution, we shall find that the President, by and with the advice and consent of the Senate, may make treaties. Now, say gentlemen, this power is undefined, and one gentleman says, it is unlimited.
True, there is no definition in words of the extent and nature of the treaty-making power. Two modes of ascertaining its extent have been mentioned: one is, by ascertaining the extent of the same power among the monarchs of Europe, and making that the standard of the treaty-making power here; and the other is, to limit the power of the President and Senate, in respect to treaties, by the constitution and the nature and principles of our Government.
Upon the first criterion, it is obvious that we cannot obtain any satisfactory definition of the treaty-making power, as applicable to our Government.
The paragraph in the constitution, which says that “new States may be admitted by Congress into this Union,” has been quoted to justify this treaty. To this, two answers may be given, either of which are conclusive in my favor. First, if Congress have the power collectively of admitting Louisiana, it cannot be vested in the President and Senate alone. Secondly, Congress have no power to admit new foreign States into the Union, without the consent of the old partners. The article of the constitution, if any person will take the trouble to examine it, refers to domestic States only, and not at all to foreign States; and it is unreasonable to suppose that Congress should, by a majority only, admit new foreign States, and swallow up, by it, the old partners, when two-thirds of all the members are made requisite for the least alteration in the constitution. The words of the constitution are completely satisfied by a construction which shall include only the admission of domestic States, who were all parties to the Revolutionary war, and to the compact; and the spirit of the association seems to embrace no other. But I repeat it, if the Congress collectively has this power, the President and Senate cannot, of course, have it exclusively.
I think, sir, that, from a fair construction of the constitution, and an impartial view of the nature and principles of our association, the President and Senate have not the power of thus obtruding upon us Louisiana.
The seventh article admits for twelve years the ships of France and Spain into the ceded territory, free of foreign duty. This is giving a commercial preference to those ports over the other ports of the United States; because it is well known that a duty of forty-four cents on tonnage, and ten per cent. on duties, are paid by all foreign ships or vessels in all the ports of the United States. If it be said we must repeal those laws, and then the preference will cease, the answer is, that this seventh article gives the exclusive right of entering the ports of Louisiana to the ships of France and Spain, and if our discriminating duties were repealed this day, the preference would be given to the ports of the United States against those of Louisiana, so that the preference, by any regulation of commerce or revenue, which the constitution expressly prohibits from being given to the ports of one State over those of another, would be given by this treaty, in violation of the constitution. I acknowledge, if Louisiana is not admitted into the Union, and that if there is no promise to admit her, then this part of our argument will not apply; but, in declaring these to be facts, my opponents are driven to acknowledge that the third article of this treaty is void, which answers every purpose which I wish to establish, that this treaty is unconstitutional and void, and that I have, consequently, a right to withhold my vote from any bill which shall be introduced to carry it into effect. I acknowledge, sir, that my opinion ever has been, and still is, that when a treaty is ratified by the constituted authorities, and is a constitutional treaty, every member of the community is bound by it, as a law of the land; but not so by a treaty which is unconstitutional. The terms of this treaty may be extravagant and unwise, yet, in my legislative capacity, that can form no excuse for an opposition; we may have no title, we may have given an enormous sum, we may have made a silly attempt to destroy the discriminating duties, yet, if the treaty be not unconstitutional, every member of the Government is bound to carry it into effect.
Mr.Breckenridgeobserved, that he little expected a proceeding so much out of order would have been attempted, as a re-discussion of the merits of the treaty on the passage of thisbill; but as the gentlemen in the opposition had urged it, he would, exhausted as the subject was, claim the indulgence of the Senate in replying to some of their remarks.
No gentleman, continued he, has yet ventured to deny, that it is incumbent on the United States to secure to the citizens of the western waters, the uninterrupted use of the Mississippi. Under this impression of duty, what has been the conduct of the General Government, and particularly of the gentlemen now in the opposition, for the last eight months? When the right of deposit was violated by a Spanish officer without authority from his Government, these gentlemen considered our national honor so deeply implicated, and the rights of the western people so wantonly violated, that no atonement or redress was admissible, except through the medium of the bayonet. Negotiation was scouted at. It was deemed pusillanimous, and was said to exhibit a want of fellow-feeling for the western people, and a disregard to their essential rights. Fortunately for their country, the counsel of these gentlemen was rejected, and their war measures negatived. The so much scouted process of negotiation was, however, persisted in, and instead of restoring the right of deposit, and securing more effectually for the future our right to navigate the Mississippi, the Mississippi itself was acquired, and every thing which appertained to it. I did suppose that those gentlemen, who at the last session so strongly urged war measures for the attainment of this object, upon an avowal that it was too important to trust to the tardy and less effectual process of negotiation, would have stood foremost in carrying the treaty into effect, and that the peaceful mode by which it was acquired would not lessen with them the importance of the acquisition. But it seems to me, sir, that the opinions of a certain portion of the United States with respect to this ill-fated Mississippi, have varied as often as the fashions. [Here Mr. B. made some remarks on the attempts which were made in the old Congress, and which had nearly proved successful, to cede this river to Spain for twenty-five years.] But, I trust, continued he, these opinions, schemes, and projects will for ever be silenced and crushed by the vote which we are this evening about to pass.
Permit me to examine some of the principal reasons which are deemed so powerful by gentlemen as to induce them to vote for the destruction of this treaty. Unfortunately for the gentlemen, no two of them can agree on the same set of objections; and what is still more unfortunate, I believe there are no two of them concur in any one objection. In one thing only they seem to agree, and that is to vote against the bill. An honorable gentleman from Delaware (Mr.White) considered the price to be enormous. An honorable gentleman from Connecticut, who has just sat down, (Mr.Tracy,) says he has no objection whatever to the price; it is, he supposes, not too much. An honorable gentleman from Massachusetts (Mr.Pickering) says that France acquired no title from Spain, and therefore our title is bad. The same gentleman from Connecticut (Mr.Tracy) says he has no objection to the title from France; he thinks it a good one. The gentleman from Massachusetts (Mr.Pickering) contends that the United States cannot under the constitution acquire foreign territory. The gentleman from Connecticut is of a different opinion, and has no doubt but that the United States can acquire and hold foreign territory; but that Congress alone have the power of incorporating that territory into the Union. What weight, therefore, ought all their lesser objections to be entitled to, when they are at war among themselves on the greater one?
The same gentleman has told us, that this acquisition will, from its extent, soon prove destructive to the confederacy.
This, continued Mr. B., is an old and hackneyed doctrine; that a republic ought not to be too extensive. But the gentleman has assumed two facts, and then reasoned from them. First, that the extent is too great; and secondly, that the country will be soon populated. I would ask, sir, what is his standard extent for a republic? How does he come at that standard? Our boundary is already extensive. Would his standard extent be violated by including the island of Orleans and the Floridas? I presume not, as all parties seem to think their acquisition, in part or in whole, essential. Why not then acquire territory on the west, as well as on the east side of the Mississippi? Is the Goddess of Liberty restrained by water courses? Is she governed by geographical limits? Is her dominion on this continent confined to the east side of the Mississippi? So far from believing in the doctrine that a republic ought to be confined within narrow limits, I believe, on the contrary, that the more extensive its dominion the more safe and more durable it will be. In proportion to the number of hands you intrust the precious blessings of a free government to, in the same proportion do you multiply the chances for their preservation. I entertain, therefore, no fears for the confederacy on account of its extent.
I had hoped, sir, that the gentleman from Connecticut, (Mr.Tracy,) from the trouble he was so good as to give himself yesterday in assisting to amend this bill, would have voted for it; but it seems he is constrained to vote to-day against it. He asks, if the United States have power to acquire and add new States to the Union, can they not also cede States? Can they not, for example, cede Connecticut to France? I answer they cannot; but for none of the reasons assigned by him. The Government of the United States cannot cede Connecticut, because, first, it would be annihilating part of that sovereignty of the nation which is whole and entire, and upon which the Government of the United States is dependent for its existence; and secondly, because the fourth section of the fourth article of the constitution forbids it. But howdoes it follow as a consequence, that because the United States cannot cede an existing State, they cannot acquire a new State? He admits explicitly that Congress may acquire territory and hold it as a territory, but cannot incorporate it into the Union. By this construction he admits the power to acquire territory, a modification infinitely more dangerous than the unconditional admission of a new State; for by his construction, territories and citizens are considered and held as the property of the Government of the United States, and may consequently be used as dangerous engines in the hands of the Government against the States and people.
Could we not, says the same gentleman, incorporate in the Union some foreign nation containing ten millions of inhabitants—Africa, for instance—and thereby destroy our Government? Certainly the thing would be possible if Congress would do it, and the people consent to it; but it is supposing so extreme a case and is so barely possible, that it does not merit serious refutation. It is also possible and equally probable that republicanism itself may one day or other become unfashionable, (for I believe it is not without its enemies,) and that the people of America may call for a king. From such hypotheses it is impossible to deduce any thing for or against the construction contended for. The true construction must depend on the manifest import of the instrument and the good sense of the community.
The same gentleman, in reply to the observations which fell from the gentleman from South Carolina, as to the admission of new States, observes, that although Congress may admit new States, the President and Senate, who are but a component part, cannot. Apply this doctrine to the case before us. How could Congress by any mode of legislation admit this country into the Union until it was acquired? And how can this acquisition be made except through the treaty-making power? Could the gentleman rise in his place and move for leave to bring in a bill for the purchase of Louisiana and its admission into the Union? I take it that no transaction of this or any other kind with a foreign power can take place except through the Executive Department, and that in the form of a treaty, agreement, or convention. When the acquisition is made, Congress can then make such disposition of it as may be expedient.
Mr.Adams.—It is not my intention to trespass long upon the patience of the Senate, on a subject which has already been debated almost to satiety; but, as objections on constitutional grounds have been raised against the bill under discussion, I wish to say a very few words in justification of the vote which I think it my duty to give.
The objections against the passage of the bill, as far as my recollection serves me, are two: the first, started by the honorable gentleman from Delaware who opened this debate; the second, urged by several of the other members who have spoken upon the question.
The gentleman from Delaware admits the necessity of making the provision for carrying into execution, on our part, the treaty which has been duly ratified by the Senate,providedwe can obtain complete and undoubted possession of the territory ceded us by France, in that treaty. But he observes, that the term possession is indefinite; that it may mean nothing more than the delivery of a twig, or of the knob of a door. That, from sources of the authenticity of which we have no reason to doubt, we are informed that Spain is very far from acquiescing in the cession of this territory to us; that probably the Spanish officers will not deliver peaceable possession; and that we ought not to put out of our own hands the power of withholding the payment of this money, until it shall be ascertained, beyond all question, that the territory, for which it is the consideration, is in our hands. But, sir, admitting that the word possession were of itself not sufficiently precise, I think, with the gentleman last up, that the fourth and fifth articles of the treaty, read by him, render it so in this instance. The fourth, stipulating that the French commissary shall doevery act necessaryto receive the country from the Spanish officers, and transmit it to the agent of the United States—and the fifth, providing, not only that all themilitary postsshall be delivered to us, and that the troops, whether of France or Spain, shall cease to occupy them, but that those troops shall all be embarked within three months after the ratification of the treaty. Now, when the country has been formally surrendered to us, when all the military posts are in our hands, and when all the troops, French or Spanish, have been embarked, what possible adverse possession can there be to contend against ours? Until all these conditions shall have been fulfilled on the part of France, neither the convention nor the bill before us requires the payment of money on ours; and we may safely trust the execution of the law to the discretion of the President of the United States. For, even if I could see any reason for distrusting him in the exercise of such a power, under different circumstances, which I certainly do not, still, in the present case, his own interest, and the weight of responsibility resting upon him, are ample security to us, against any undue precipitation on his part, in the payment of the money. On the other hand, I am extremely solicitous that every tittle of the engagements on our part in these conventions should be performed with the most scrupulous good faith, and I see no purpose of utility that can be answered by postponing the determination on the passage of this bill.
But it has been argued that the bill ought not to pass, because the treaty itself is unconstitutional, or, to use the words of the gentleman from Connecticut, an extra-constitutional act; because it contains engagements which the powers of the Senate were not competent to ratify, the powers of Congress not competent to confirm, and, as two of the gentlemen havecontended, not even the Legislatures of the number of States requisite to effect an amendment of the constitution are adequate to sanction. It is therefore, say they, a nullity; we cannot fulfil our part of its conditions, and on our failure in the performance of any one stipulation, France may consider herself as absolved from the obligations of the whole treaty on her. I do not conceive it necessary to enter into the merits of the treaty at this time. The proper occasion for that discussion is past. But, allowing even that this is a case for which the constitution has not provided, it does not in my mind follow, that the treaty is a nullity, or that its obligations, either on us or on France, must necessarily be cancelled. For my own part, I am free to confess, that the third article, and more especially the seventh, contain engagements placing us in a dilemma, from which I see no possible mode of extricating ourselves but by an amendment, or rather an addition to the constitution. The gentleman from Connecticut, (Mr.Tracy,) both on a former occasion, and in this day’s debate, appears to me to have shown this to demonstration. But what is this more than saying, that the President and Senate have bound the nation to engagements which require the co-operation of more extensive powers than theirs, to carry them into execution? Nothing is more common, in the negotiations between nation and nation, than for a minister to agree to and sign articles beyond the extent of his powers. This is what your ministers, in the very case before you, have confessedly done. It is well known that their powers did not authorize them to conclude this treaty; but they acted for the benefit of their country, and this House by a large majority has advised to the ratification of their proceedings. Suppose then, not only that the ministers who signed, but the President and Senate who ratified this compact, have exceeded their powers. Suppose that the other House of Congress, who have given their assent by passing this and other bills for the fulfilment of the obligations it imposes on us, have exceeded their powers. Nay, suppose even that the majority of States competent to amend the constitution in other cases, could not amend it in this, without exceeding their powers—and this is the extremest point to which any gentleman on this floor has extended his scruples—suppose all this, and there still remains in the country a power competent to adopt and sanction every part of our engagements, and to carry them entirely into execution. For, notwithstanding the objections and apprehensions of many individuals, of many wise, able and excellent men, in various parts of the Union, yet such is the public favor attending the transaction which commenced by the negotiation of this treaty, and which I hope will terminate in our full, undisturbed and undisputed possession of the ceded territory, that I firmly believe if an amendment to the constitution, amply sufficient for the accomplishment of every thing for which we have contracted, shall be proposed, as I think it ought, it will be adopted by the Legislature of every State in the Union. We can therefore fulfil our part of the conventions, and this is all that France has a right to require of us.
Mr.Nicholas.—Mr. President: The gentlemen on the other side differ among themselves. The two gentlemen from Delaware say, that if peaceable possession is given of Louisiana this bill ought to pass; the other gentlemen who have spoken in opposition to it have declared, that if they believed the constitution was not violated by the treaty, they should think themselves bound to vote for the bill. To this Senate it cannot be necessary to answer arguments denying the power of the Government to make such a treaty; it has already been affirmed, so far as we could affirm it, by two-thirds of this body; it is then only now necessary to show that we ought to pass the bill at this time. In addition to the reasons which have been so ably and forcibly urged by my friends, I will remark, that the treaty-making power of this Government is so limited, that engagements to pay money cannot be carried into effect without the consent and co-operation of Congress. This was solemnly decided, after a long discussion of several weeks, by the House of Representatives, which made the appropriations for carrying the British treaty into effect, and such I believe is the understanding of nine-tenths of the American people, as to the construction of their constitution. This decision must be also known to foreigners, and if not, they are bound to know the extent of the powers of the Government with which they treat. If this bill should be rejected, I ask gentlemen whether they believe, that France would or ought to execute the treaty on her part? It is known to the French Government that the President and Senate cannot create stock, nor provide for the payment of either principal or interest of stock; and if that Government should be informed that a bill, authorizing the issue of stock to pay for the purchase, “after possession shall be delivered,” had been rejected by the only department of our Government competent to the execution of that part of the treaty, they would have strong ground to suspect that we did not mean to execute the treaty on our part; particularly when they are informed, that the arguments most pressed in opposition to the bill were grounded upon a belief that the Government of the United States had not a constitutional power to execute the treaty. Of one thing I am confident, that if they have the distrust of us which some gentlemen have this day expressed of them, the country will not be delivered to the agents of our Government should this bill be rejected.
The gentleman from Connecticut (Mr.Tracy) muse consider the grant of power to the Legislature as a limitation of the treaty-making power, for he says, “that the power to admit new States and to make citizens is given to Congress, and not to the treaty-making power;” therefore an engagement in a treaty to do eitherof these things is unconstitutional. I cannot help expressing my surprise at that gentleman’s giving that opinion, and I think myself justifiable in saying, that if it is now his opinion, it was not always so. The contrary opinion is the only justification of that gentleman’s approbation of the British treaty, and of his vote for carrying it into effect. By that treaty a great number of persons had a right to become American citizens immediately; not only without a law, but contrary to an existing law. And by that treaty many of the powers specially given to Congress were exercised by the treaty-making power. It is for gentlemen who supported that treaty, to reconcile the construction given by them to the constitution in its application to that instrument, with their exposition of it at this time.
If the third article of the treaty is an engagement to incorporate the Territory of Louisiana into the Union of the United States, and to make it a State, it cannot be considered as an unconstitutional exercise of the treaty-making power; for it will not be asserted by any rational man that the territory is incorporated as a State by the treaty itself, when it is expressly declared that “the inhabitants shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution.” Evidently referring the question of incorporation, in whatever character it was to take place, to the competent authority; and leaving to that authority to do it, at such time, and in such manner, as they may think proper. If, as some gentlemen suppose, Congress possess this power, they are free to exercise it in the manner that they may think most conducive to the public good. If it can only be done by an amendment to the constitution, it is a matter of discretion with the States whether they will do it or not; for it cannot be done “according to the principles of the Federal Constitution,” if the Congress or the States are deprived of that discretion, which is given to the first, and secured to the last, by the constitution. In the third section of the fourth article of the constitution it is said, “New States may be admitted by the Congress into this Union.” If Congress have the power, it is derived from this source; for there are no other words in the constitution that can, by any construction that can be given to them, be considered as conveying this power. If Congress have not this power, the constitutional mode would be by an amendment to the constitution. If it should be conceded then that the admission of this territory into the Union, as a State, was in the contemplation of the contracting parties, it must be understood with a reservation of the right of this Congress or of the States to do it, or not; the words “admitted as soon as possible,” must refer to the voluntary admission in one of the two modes that I have mentioned; for in no other way can a State be admitted into this Union.
The question was then taken on the passage of the bill, and carried in the affirmative—yeas 26, nays 5, as follows:
Yeas—Messrs. Adams, Anderson, Bailey, Baldwin, Bradley, Breckenridge, Brown, Butler, Cocke, Condit, Dayton, Ellery, Franklin, Jackson, Logan, Maclay, Nicholas, Olcott, Plumer, Potter, Israel Smith, John Smith, Stone, Taylor, Worthington, and Wright.
Nays—Messrs. Hillhouse, Pickering, Tracy, Wells, and White.
The following Message was received from thePresident of the United States:
To the Senate and House of Representatives of the United States:By the copy now communicated of a letter from Captain Bainbridge, of the Philadelphia frigate, to our Consul at Gibraltar, you will learn that an act of hostility has been committed on a merchant vessel of the United States, by an armed ship of the Emperor of Morocco. This conduct on the part of that power is without cause and without explanation. It is fortunate that Captain Bainbridge fell in with and took the capturing vessel and her prize; and I have the satisfaction to inform you that about the date of this transaction, such a force would be arriving in the neighborhood of Gibraltar, both from the east and from the west, as leaves less to be feared for our commerce, from the suddenness of the aggression.On the 4th of September, the Constitution frigate, Captain Preble, with Mr. Lear on board, was within two days’ sail of Gibraltar, where the Philadelphia would then be arrived with her prize; and such explanations would probably be instituted as the state of things required, and as might perhaps arrest the progress of hostilities.In the mean while, it is for Congress to consider the provisional authorities which may be necessary to restrain the depredations of this power, should they be continued.TH. JEFFERSON.Nov. 4, 1803.
To the Senate and House of Representatives of the United States:
By the copy now communicated of a letter from Captain Bainbridge, of the Philadelphia frigate, to our Consul at Gibraltar, you will learn that an act of hostility has been committed on a merchant vessel of the United States, by an armed ship of the Emperor of Morocco. This conduct on the part of that power is without cause and without explanation. It is fortunate that Captain Bainbridge fell in with and took the capturing vessel and her prize; and I have the satisfaction to inform you that about the date of this transaction, such a force would be arriving in the neighborhood of Gibraltar, both from the east and from the west, as leaves less to be feared for our commerce, from the suddenness of the aggression.
On the 4th of September, the Constitution frigate, Captain Preble, with Mr. Lear on board, was within two days’ sail of Gibraltar, where the Philadelphia would then be arrived with her prize; and such explanations would probably be instituted as the state of things required, and as might perhaps arrest the progress of hostilities.
In the mean while, it is for Congress to consider the provisional authorities which may be necessary to restrain the depredations of this power, should they be continued.
TH. JEFFERSON.
Nov. 4, 1803.
The Message and papers therein referred to were read and ordered to lie for consideration.
The credentials ofJohn Condit, appointed a Senator by the Legislature of the State of New Jersey, for the time limited in the Constitution of the United States, were presented and read.
Ordered, That they lie on file.
ThePresidentcommunicated a letter from De Witt Clinton, late a Senator from the State of New York, stating that he had resigned his seat in the Senate.
ThePresidentadministered the oath required by law to Mr.Condit, a Senator from the State of New Jersey.
Mr.Worthingtonpresented the petition of a number of the inhabitants of the Indiana Territory,praying to be set off into a separate district, for reasons therein stated.
Ordered, That it be referred to Mr.Bradleyand others, the committee to whom were referred on the 7th instant, petitions on the same subject, to consider and report thereon to the Senate.
The Senate resumed the consideration of the report of the committee to whom was referred the motion for an amendment to the constitution in the mode of electing the President and the Vice President of the United States; whereupon, the Presidentpro tem.(Mr.Brown) submitted to the consideration of the Senate the following question of order:
“When an amendment to be proposed to the constitution is under consideration, shall the concurrence of two-thirds of the members present be requisite to decide any question for amendments, or extending to the merits, being short of the final question?”
“When an amendment to be proposed to the constitution is under consideration, shall the concurrence of two-thirds of the members present be requisite to decide any question for amendments, or extending to the merits, being short of the final question?”
[A debate took place on this proposition, tedious, intricate, and desultory, which it was very difficult to follow, and often to comprehend.]
The proposition offered by the President was then called up for decision, whether two-thirds were necessary—ayes 13, noes 18.
Mr.Butlerdesired to know from the President if the question now decided did not require a majority of two-thirds?
ThePresidentsaid, according to the rule of the House, the question required only a principal majority to decide.
Mr.Dayton’s motion for striking out what related to the Vice President was called for, and the question taken on striking out—ayes 12, noes 19.
The report of the committee at large being then under consideration,
Mr.Nicholasmoved to strike out all following the seventh line of the report, to the end, for the purpose of inserting the following:
“In all future elections of President and Vice President, the Electors shall name in their ballots the person voted for as President, and, in distinct ballots, the person voted for as Vice President, of whom one at least shall not be an inhabitant of the same State with themselves. The person voted for as President, having a majority of the votes of all the Electors appointed, shall be the President; and if no person have such majority, then from the three highest on the list of those voted for as President, the House of Representatives shall choose the President in the manner directed by the constitution. The person having the greatest number of votes as Vice President, shall be the Vice President; and in case of an equal number of votes for two or more persons for Vice President, they being the highest on the list, the Senate shall choose the Vice President from those having such equal number, in the manner directed by the constitution; but no person constitutionally ineligible to the office of President, shall be eligible to that of Vice President of the United States.”
“In all future elections of President and Vice President, the Electors shall name in their ballots the person voted for as President, and, in distinct ballots, the person voted for as Vice President, of whom one at least shall not be an inhabitant of the same State with themselves. The person voted for as President, having a majority of the votes of all the Electors appointed, shall be the President; and if no person have such majority, then from the three highest on the list of those voted for as President, the House of Representatives shall choose the President in the manner directed by the constitution. The person having the greatest number of votes as Vice President, shall be the Vice President; and in case of an equal number of votes for two or more persons for Vice President, they being the highest on the list, the Senate shall choose the Vice President from those having such equal number, in the manner directed by the constitution; but no person constitutionally ineligible to the office of President, shall be eligible to that of Vice President of the United States.”
Mr.Adamsobjected to the number “three” instead of five, and wished five to be restored, as the House of Representatives had already agreed to it. He asked for a division of the question; which was not agreed to.
Upon the question for striking out being put, it was carried without a dissenting voice, and the amendment of Mr.Nicholasadopted in the report, leaving the number blank.
Mr.Daytonmoved to fill up the blank with the number five; upon the question being put, it was lost—only eleven rose in the affirmative.
Mr.Andersonmoved to strike out the word “two” in the nineteenth line—ayes 6. Lost.
Mr.S. Smiththen moved to fill the blank with the word “three;” which was carried—ayes 18, noes 13.
Mr.Adamssuggested an objection to the amendment as it stood, which appeared to arise out of the treaty of cession of Louisiana. His original idea was adverse to the limitation to natural-born citizens, as superfluous; but, as it stood, the terms upon which Louisiana was acquired had rendered a change necessary, for it appeared to him that there was no alternative, but to admit those born in Louisiana as well as those born in the United States to the right of being chosen for President and Vice President.
Mr.Butlersaid that, if there was a numerous portion of those who were already citizens of the United States who can never aspire to, nor be eligible for, those situations under the constitution, he did not see how this supposed alternative could be upheld. The people of Louisiana, under the treaty and under the constitution, will clearly come under the description of naturalized citizens. While he was up, he would take the opportunity of speaking to the question at large, and to examine the motives which produced this amendment; the principal cause of solicitude, on this subject, he understood to be the base intrigues which were said to have been carried on at the Presidential election.
Mr.Wrightcalled to order; and a short altercation on the point of order took place.
Mr.Butlerproceeded. He had on a former day asked if he might, in this stage of the discussion, take a view of the whole subject; the House had decided in the affirmative. When the proposition was first laid before the House, he had felt a disposition in favor of it; his mind had been shocked by those base intrigues, which had taken place at the late Presidential election, and he was hurried by indignation into a temper which a little cool reflection and some observation on a particular mode of action in that House, had checked and corrected, and finally convinced him that much caution was required in a proceeding of that nature, and that, in all human probability, such a scene of intrigue may never occur again; that it became questionable whether any steps whatever were necessary. Upon a careful review of the subject, it appeared to him that an alteration might make matters worse; for though at present there has beenafforded, by a course of accidents and oversights, room for intrigue, it would be preferable to leave it to the care and discretion of the States at large to prevent the recurrence of the danger, than put into the hands of four of the large States the perpetual choice of President, to the exclusion of the other thirteen States. It was a reasonable principle that every State should, in turn, have the choice of the Chief Magistrate made from among its citizens. The jealousy of the small States was natural; and he would not tire the House by bringing to their ears arguments from the history of Greece, because the subject must be familiar to every member of that House, and, indeed, to every school-boy. He would not weary them with the painful history of the conflicts of Athens and Sparta, for the supremacy of Greece, and the fatal effects of their quarrels and ambition on the smaller States of that inveterate confederacy of Republics. Their history is that of all nations in similar circumstances; for man is man in every clime, and passion mingles in all his actions. If the smaller States were to agree to this amendment, it would fix for ever the combination of the larger States, and they would not only choose the President but the Vice President also in spite of the smaller States. It would ill become him who had been a member of that convention which had the honor of forming the present constitution to let a measure such as the present pass without the most deliberate investigation of its effects. Before the present constitution was adopted all the States held an equal vote on all national questions; by the constitution their sovereignty was guarantied, and the instrument of guarantee and right, he had subscribed his name to as a Representative from South Carolina, and had used all the zeal and influence of which he was possessed to promote its adoption. To give his assent to any violation of it, or any unnecessary innovation on its principles, would be a deviation from morality.
The question was immediately taken on the report and carried—yeas 20, nays 11.
Mr.Adamssaid, that though he had voted for the amendment, he disapproved of the alteration from five to three. He felt, however, though a representative of a large State, a deep interest in this question. Was there no champion of the small States to stand up in that House and vindicate their rights?
Mr.Daytonwas not here as champion of the small States; but, as the representative of one of them, he was ready to enter his protest against being delivered over bound hand and foot to four or five of the large States. The gentleman from South Carolina had offered arguments on the subject irrefutable. The little portion of influence left us he has demonstrated to be now about to be taken away, and the gentleman from Massachusetts, (Mr.Adams,) after aiding the effort with his vote, has taken mercy upon us, and after he has helped to knock us down, asks us why we do not stand up for ourselves.
Mr.S. Smithwas not surprised to find those who were members of the old Congress, in which the subject of large and small States was frequently agitated, familiar with the subject of those days. Under the present constitution he had been ten years in Congress and had never heard the subject agitated, nor the least ground given for any apprehension on this subject; he had seen the small States possess all the advantages secured to them without even a moment’s jealousy. The State he represented was once considered a large State; the increase of others in population, however, had rendered it properly belonging to neither class; it was an intermediate State; but from the natural progression of the Union it must be ranked among the small States. In this view then he could speak dispassionately, and the small States could not with reason be apprehensive that a State, which must speedily take rank among them, could be indifferent to their rights if there were the least cause for apprehension.
He had moved for the insertion of three instead of five, with this precise and special intention, that the people themselves should have the power of electing the President and Vice President; and that intrigues should be thereby for ever frustrated. The intention of the convention was that the election of the chief officers of the Government should come as immediately from the people as was practicable, and that the Legislature should possess the power only in such an exigency as accident might give birth to, but which they had considered as likely to occur. Had it not been for these considerations, the large States never would have given up the advantages which they held in point of numbers. If the number five were to be continued, and the House of Representatives made the last resort, he would undertake to say, that four times out of five the choice would devolve upon them.
Mr.Hillhouse.—In avoiding rocks he feared we were steering for quicksands. The evils that are past we know; those that may arrive we know not. The object proposed is to provide against a storm, a phenomenon not rare or unfrequent in republics. You are called upon to act upon a calculation that all the States in the Union will vote for the same persons, or that each of two parties opposed in politics will have an individual candidate. Suppose the two candidates who had the highest votes on the late election had been the champions of two opposite parties, and that neither would recede, what then would be the consequence; according to the gentleman from Maryland, a civil war! When men are bent on a favorite pursuit, they are too apt to shut out all consequences which do not bear out their object. Thus gentlemen can very well discover the danger they have escaped, but they do not perceive that the opposition of two powerful candidates gives, besides the hazard of civil war, the hazard of placing one of them on a permanent throne. The First Magistracy of this nationis an object capable of exciting ambition; and no doubt it would one day or other be sought after by dangerous and enterprising men. It was to place a check upon this ambition that the constitution provided a competitor for the Chief Magistrate, and declared that both should not be chosen from the same State. Here also was a guard against State pride, and this guard you wish to take away; and what will be the consequence? Instead of two or three or five, you will have as many candidates as there are States in the Union. By voting for two persons without designation, the States stood a double chance of a majority, besides the chance of a majority of all the States in the House of Representatives. For once or twice there may be such an organization of party as will secure for a conspicuous character the majority of votes. But that character cannot live always. The evil of the last election will recur, and be greater, because the whole field will be to range in.
He hoped this amendment would not be hastily adopted. The subsisting mode was the result of much deliberation and solemn compromise, after having long agitated the convention. It is now attacked by party, whatever gentlemen may say to the contrary; the gentleman from South Carolina has confessed it. If gentlemen will suffer themselves to look forward without passion, great good may come from the present mode; men of each of the parties may hold the two principal offices of the Government; they will be checks upon each other; our Government is composed of checks; and let us preserve it from party spirit, which has been tyrannical in all ages. These checks take off the fiery edge of persecution. Would not one of a different party placed in that chair tend to check and preserve in temper the overheated zeal of party? he would conduct himself with firmness because of the minor party; he would take care that the majority should have justice, but he would also guard the minority from oppression. If we cannot destroy party we ought to place every check upon it. If the present amendment pass, nine out of ten times the election will go to the other House, and then the only difference will be that you had a comedy the last time, and you’ll have a tragedy the next. Though it was impossible to prevent party altogether, much more when population and luxury increase, and corruption and vice with them, it was prudent to preserve as many checks against it as was practicable. He had been long in Congress and saw the conflicting interests of large and small States operate; the time may not be remote when party will adopt new designations; federal and republican parties have had their day, their designations will not last long, and the ground of difference between parties will not be the same that it has been; new names and new views will be taken; it has been the course in all nations. There has not yet been a rotation of offices in which the small States could look for their share, but the time may, it will come when the small will wrestle with the large States for their rights. Each State has felt that though its limits were not so extensive as others, its rights were not disregarded. Suffer this confidence to be done away, and you may bid adieu to it; three or four large States will take upon them in rotation to nominate the Executive, and the second officer also. This will be felt. A fanciful difference in politics is the bugbear of party now, because no other, no real cause of difference has subsisted. But remedy will create a real disease. States like individuals may say we will be of no party, and whenever this shall happen blood will follow.
Mr.Bradleymoved an adjournment. The motion was agreed to.
The consideration of the report on the amendment to the constitution being taken up, the amendment as directed to be printed on the preceding day, was taken up, and read, as follows: