SENATE. The Louisiana Treaty. NOVEMBER, 1803. Government authorized to make treaties; and this being clear, her only right is to require that the conditions stipulated in our name be punctually and faithfully performed. I trust they will be so performed, and will cheerfully lend my hand to every act necessary for the purpose. For I consider the object as of the highest advantage to us; and the gentleman from Kentucky himself, who has displayed with so much eloquence the immense importance to this Union of the possession of the ceded country, cannot carry his ideas further on that subject than I do. With these impressions, sir, perceiving in the first objection no substantial reason requiring the postponement, and in the second no adequate argument for the rejection of this bill, I shall give my vote in its favor. 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 be- Mr. NICHOLAS.-Mr. President, so much has tween nation and nation, than for a Minister to been said upon this subject that but little remains agree to and sign articles beyond the extent of his for me to say, as I mean to confine myself to a powers. This is what your Ministers, in the very few observations, that I have not heard made by case before you, have confessedly done. It is well others. It is extraordinary that arguments to known that their powers did not authorize them to show the unconstitutionality of the treaty, should conclude this treaty; but they acted for the benefit be addressed to this Senate, to prevent its execuof their country, and this House by a large major- tion, after two-thirds of this body have advised ity has advised to the ratification of their pro- and consented to its ratification. The motive ceedings. Suppose then, not only that the Min- for this must be what was suggested by the genisters who signed, but the President and Senate tleman from South Carolina; an expectation of who ratified this compact, have exceeded their making impressions unfavorable to the treaty ; powers. Suppose that the other House of Congress, and that, after the full discussion that has been who have given their assent by passing this and had, the friends of the treaty would not deem it other bills for the fulfilment of the obligations it necessary to refute arguments so unseasonably imposes on us, have exceeded their powers. Nay, repeated. The gentlemen on the other side differ suppose even that the majority of States compe- among themselves. The two gentlemen from tent to amend the Constitution in other cases, Delaware say, that if peaceable possession is given could not amend it in this, without exceeding of Louisiana this bill ought to pass; the other gentheir powers-and this is the extremest point to tlemen who have spoken in opposition to it have which any gentleman on this floor has extended declared, that if they believed the Constitution his scruples-suppose all this, and there still re- was not violated by the treaty, they should think mains in the country a power competent to adopt themselves bound to vote for the bill. To this and sanction every part of our engagements, and Senate it cannot be necessary to answer arguto carry them entirely into execution. For, not-ments denying the power of the Government to withstanding the objections and apprehensions of make such a treaty; it has already been affirmed, many individuals, of many wise, able and excellent so far as we could affirm it, by two-thirds of this men, in various parts of the Union, yet such is the body; it is then only now necessary to show that public favor attending the transaction which com- we ought to pass the bill at this time. In addimenced by the negotiation of this treaty, and tion to the reasons which have been so ably and which I hope will terminate in our full, undis- forcibly urged by my friends, I will remark, that turbed and undisputed possession of the ceded ter- the treaty-making power of this Government is so ritory, that I firmly believe if an amendment to limited that engagements to pay money cannot be the Constitution, amply sufficient for the accom- carried into effect without the consent and coplishment of everything for which we have con- operation of Congress. This was solemnly detracted, shall be proposed, as I think it ought, it cided, after a long discussion of several weeks, by will be adopted by the Legislature of every State the House of Representatives, which made the in the Union. We can therefore fulfil our part appropriations for carrying the British Treaty into of the conventions, and this is all that France has cffect, and such I believe is the understanding of a right to require of us. France never can have nine-tenths of the American people, as to the conthe right to come and say: "I am discharged from struction of their Constitution. This decision must the obligation of this treaty, because your Presi- be also known to foreigners, and if not, they are dent and Senate, in ratifying it, exceeded their pow- bound to know the extent of the powers of the ers," for this would be interfering in the internal Government with which they treat. If this bill arrangements of our Government. It would be in- should be rejected, I ask gentlemen whether they termeddling in questions with which she has no believe, that France would or ought to execute concern, and which must be settled altogether by the treaty on her part? It is known to the French ourselves. The only question for France is, whe-Government that the President and Senate canther she has contracted with the department of our not create stock, nor provide for the payment of NOVEMBER, 1803. The Louisiana Treaty. SENATE. either principal or interest of stock; and if that stitution imposes particular and general limitaGovernment should be informed that a bill, author- tions upon the powers of the Government of the izing the issue of stock to pay for the purchase, United States. No department of the Govern"after possession shall be delivered," had been re- ment can do any of the things that are prohibited jected by the only department of our Government by the Constitution. Nor would they be justificompetent to the execution of that part of the able in not doing what is positively enjoined upon treaty, they would have strong ground to suspect them to do. I do not believe therefore that the that we did not mean to execute the treaty on our President and Senate would cede a State or any part; particularly when they are informed, that part of a State, because our common defence was the arguments most pressed in opposition to the one of the great purposes for which the Governbill were grounded upon a belief that the Government was formed, and because the Constitution ment 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, finding himself unable to combat or refute the able and ingenious exposition of the third article of the treaty given by my colleague, has attempted to lessen the force of his observations by representing him as having given a construction to the Constitution by which the treaty-making power is rendered omnipotent. This is an artifice often practised. But in this instance, as in all others, it must fail of producing the intended effect with such an assembly as this. The gentleman from Massachusetts had read and commented on the Constitution in such a manner as to make an impression, that it was declared in the sixth article, that the Constitution, the laws of the United States, and all treaties made or to be made in pursuance thereof, shall be the supreme law of the land. My colleague showed that the Constitution had not been correctly quoted, and stated that the expression of the Constitution was "all treaties made or to be made under the authority of the United States;" that the Legislative power was defined and that the treaty-making power was not defined, though not unlimited; and this is evident and palpable, for if the treaty-making power is trammeled in the manner that some gentlemen now contend it is, why declare that the laws made in pursuance of the Constitution and all treaties made or which shall be made under the authority of the United States are the supreme laws of the land? The reason is obvious, the Legislative power is limited in a manner that it was neither intended, nor was it practicable to limit the treaty-making power. The power of legislation was only meant to be given for certain and particular purposes; all other Legislative powers were reserved to the States, whereas the whole treaty-making power of the nation was vested in the President, to be exercised with the advice and consent of the Senate. To refute the arguments of my colleague, it is necessary to show, that the powers of the President and Senate, in their treaty-making capacity, are defined and limited, either by special grants of power, which exclude powers not given, or by particular reservations. Upon an examination of the Constitution it will be found that the powers are neither specified nor are there any reservations. But it must not be inferred from this, that we believe the treaty-making power is unlimited. The Con guaranties to every State in the Union a Republican form of Government, and engages to protect each of them against invasion. If the special grants of power to Congress are to be considered as limitations of the treaty-making power, the power of making treaties does not substantially exist in this Government; and if our time would permit it, I would show that a commercial treaty cannot be formed, without interfering with the power given to Congress to regulate commerce, lay and collect duties, imposts, &c., and that no other treaty can be formed that will not require an engagement for the payment of money, or, in one way or other, the exercise of one or more of the powers vested in Congress. To make ours a practicable Government, it must be understood that the treaty-making power may negotiate respecting many of the subjects upon which Congress may legislate, but that Congress are not bound to carry into execution such compacts (where an act of theirs is necessary to give them effect) unless they approve of them. And this must be fully understood by all nations with whom such compacts may be formed. Upon every other subject proper for a national compact, not inconsistent with our Constitution, and under the limitations by me stated, a treaty may be negotiated and absolutely concluded by the treatymaking power, so as to bind the nation. The gentleman from Connecticut (Mr. TRACY) must 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 either of 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 SENATE. The Louisiana Treaty. NOVEMBER, 1803. 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 leav-secures to us more than they could have conteming 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. Mr. COCKE.-Mr. President, it is with reluctance I rise, at this late hour of the day, to claim your attention on a subject that has been so ably discussed, but the deep interest the State must feel, that I have the honor in part to represent, pleads my apology, and requires that the objections made to the passage of this bill should meet my answer. Gentlemen appear to have rested their objections on two grounds; first, the constitutionality; secondly, the expediency of passing the bill at this time; these objections when we give them their full weight, cannot appear well founded or consistent with opinions formerly delivered by the gentlemen on this floor, at a time when they contemplated taking New Orleans and the Floridas by military force. Here, however, I must except the gentleman from New Jersey, (Mr. DAYTON,) and freely confess that he has been consistent, and that a manly consistency has accompanied him through the whole of this business, although I believe him to have been mistaken in point of true policy. But what must we think of gentlemen in whom this sudden change has taken place, and who now exclaim against the passage of this bill, when we recollect that last winter they were ready to storm the Spanish garrisons, and who then promised by their valor to secure us a free trade down the Mississippi, and to make New Orleans and the Floridas their own? Did the Constitution then form a barrier against them? They must excuse me, if in point of candor, I cannot compliment them, for they have not only voted against the treaty, that plated by their arms and their valor, but they have also voted against the law for carrying the objects of that treaty into effect, after the treat y has been ratified, and the exchange of ratifications taken place in due form; and now, sir, we hear those warlike spirits expressing their fears, that the Western country will soon become too powerful for the East, and that a separation must inevitably take place between us. I ask gentlemen the ground on which they build their fears. It cannot be, sir, that we have paid less respect to the laws of the Union, than any other portion of our fellow-citizens; or have we in any instance shown less regard for our Government, or its honest administration? Is it then that gentlemen had determined in their own minds to treat us with such marked indifference, or injustice, as should rouse us to just resentment? When that shall be the case, I agree with my friend from Kentucky, that there is a point, beyond which we cannot go. But let not gentlemen be alarmed at the acquisition of Louisiana, this New World as they please to call it, and which they seem at so great a loss to know what to do with. Since, sir, we have made it our own, I trust we shall find capacity sufficient to govern it. For why all those fears? Is it not the true interest of all to be united, and will not our mutual interest and love of country bind us together? It certainly will. But gentlemen appear as if they thought our late acquisition has made us too rich, and seek to know how we shall dispose of that vast country. When that shall be the question before us, there will be but little difficulty on that subject, and for myself I promise the gentleman I shall, without hesitation, say what I think will best accord with the interest, and bind in friendship, every part of the Union. It must, however, be recollected that about six or eight months past, these gentlemen had no Constitutional objections, or conscientious scruples, on this subject. Had they then taken New Orleans and the Floridas, will the gentlemen now tell us that they intended to return it again to those from whom they might have taken it? Would they then have said the Constitution limited them to certain bounds? If so, I would ask what are the Constitutional limitations? It has none, sir, in that respect; and I contend that the treaty-making powers in this country are competent to the full and free exercise of their best judgment in making treaties, without limitation of power; for, on every subject in which that power is called to act, it must act on its own responsibility. Our Government is indeed the Government of the People; the Constitution is the instrument of their choice; it is NOVEMBER, 1803. The Louisiana Treaty. SENATE. sition contained in the sixth section of the seventh The following Message was received from the that instrument that grants the power I contend for, and which says that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. This power then, sir, passes out of the hands of the people, by their consent, and is vested for the time limited by themselves, and until the period they have chosen for free exercise of their elective rights shall return. On the ground of expediency, little need to be said, and I hope gentlemen will excuse me if I again repeat a desire to know the extent of their objects, when they so loudly clamored for war. Were I as suspicious as themselves, I might readily in- By the copy now communicated of a letter from dulge a belief, from the present state of things, Captain Bainbridge, of the Philadelphia frigate, to our that they wished to check the rising growth of the Consul at Gibraltar, you will learn that an act of hosWestern people, by getting them into a war, make tility has been committed on a merchant vessel of the them a handsome bow, and leave them to fight United States, by an armed ship of the Emperor of their battles. But, happily, our treaty secures us Morocco. This conduct on the part of that Power is against all such apprehensions, and I hope we shall without cause and without explanation. It is fortupass the bill now before you, as necessary for car-nate that Captain Bainbridge fell in with and took the rying into effect the conditions of our treaty with good faith. The gentleman from Delaware (Mr. WHITE) should have stated me more correctly; he should have said that I contended, that if his favorite plan of recession took place, that the Power to whom the recession was made would entice our citizens, by every means, and by the very means that the gentleman seems to wish to put in their power, to settle west of the Mississippi; that in an event like that, we might as well pass a law to prevent the fish from swimming up the Chesapeake as to prevent our citizens from migrating to that country. And I again warn gentlemen of the dangerous tendency of such recession, and assure them that I am not among those that believe that France, Spain, or even the British Government, would govern that country more to our interest than we do; nor do I credit a doctrine so absurd as to believe the people of the Western country will abandon their interest, and prostitute their honor, to create dangers so imminent as the gentleman from Connecticut (Mr HILLHOUSE) seems to apprehend, and who is so fearful of the day in which the Western people shall give laws to the Union; but if ever it should so happen, I hope they will be at least as just and salutary as they were when that honorable gentleman and his friends formed the political majority in this House. 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, FRIDAY, November 4. Representatives of the United States: 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 neigeborhood 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. Resolved, That the Secretary of the Senate be, and he hereby is, authorized and directed to pay, out of the money appropriated to defray the contingent expenses of the Senate, the sum of two hundred dollars, each, to the Doorkeeper and Assistant Doorkeeper of the Senate, in addition to their allowance for services during the last session of Congress: It was agreed, that this motion lie for consideration. On motion to take into consideration the resolution of the House of Representatives for an amendment to the Constitution of the United States, it passed in the negative-yeas 12, nays 19, as follows: YEAS-Messrs. Adams, Anderson, Butler, Dayton, Hillhouse, Maclay, Olcott, Pickering, Plumer, Tracy, Mr. WORTHINGTON, from the committee appointed on the 21st of October last, on the petition of Joseph Harrison and others, and on the propo- | Wells, and White. NAYS-Messrs. Bailey, Baldwin, Bradley, Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Jackson, Logan, Nicholas, Potter, Israel Smith, John Smith, Stone, Taylor, Worthington, and Wright. The Senate took into consideration the motion made on the 2d instant, that a committee be appointed to confer with the Postmaster General, on the expediency of carrying the mail in covered or stage carriages; and the honorable mover having amended his motion, Resolved, That a committee be appointed to consider and report on the expediency of extending the carriage of the mail of the United States, in covered or stage wagons. And it was agreed that Messrs. JACKSON, ANDERSON, and BRADLEY, be this committee. MONDAY, November 7. The Senate took into consideration the memoríal of Robert Quillin, presented on the 25th of October last, praying for an augmentation of his pension. Ordered, That it be referred to Messrs. FRANKLIN, TRACY, and ANDERSON, to consider and report thereon to the Senate. The bill to divide the Indiana Territory into two separate governments, and giving the assent of Congress to the proposition of the Convention of the State of Ohio, contained in the sixth section of the seventh article of the constitution of that State, was read the second time, and referred to Messrs. BRADLEY, TRACY, BALDWIN, WORTHINGTON, and FRANKLIN, to consider and report thereon to the Senate. The Senate took into consideration the motion made on the 4th instant, authorizing the payment of two hundred dollars each to the Doorkeeper and Assistant Doorkeeper of the Senate; and, on the question to agree thereto, it was determined in the affirmative. Resolved, That when the Senate adjourn, they adjourn to Thursday next; and that the President of the Senate order such repairs and alterations to be made in the meantime in the Senate Chamber as will render the same safe and convenient for the members thereof. THURSDAY, November 10. The credentials of JOHN 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. Mr. BRADLEY stated in his place that the Legislature of the State of Vermont had passed a resolution that it is highly important that an alteration should take place in the second article of the Constitution of the United States, which prescribes the mode of choosing a President and Vice President, and that a copy of the said resolution should be sent to their Senators and Representatives in Congress, respectively; and the resolution being read, it was moved that the Senate do now proceed to the consideration of the report of the NOVEMBER, 1803. committee, made on the 24th of October last, on an amendment to the Constitution of the United States respecting the election of President and Vice President. The question being required, it passed in the negative-yeas 9, nays 22, as follows: YEAS-Messrs. Anderson, Butler, Dayton, Hillhouse, Olcott, Plumer, Tracy, Wells, and White. NAYS-Messrs. Adams, Bailey, Baldwin, Bradley, Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Jackson, Logan, Maclay, Nicholas, Pickering, Potter, Israel Smith, John Smith, Stone, Taylor, Worthington, and Wright. FRIDAY, November 11. Mr. WORTHINGTON stated in his place that the State of Ohio had passed a "resolution that the Senators and Representative of that State in Congress be requested and instructed to endeavor to obtain an amendment to the first section of the second article of the Constitution of the United States, which shall authorize the Electors of each State to designate on their ballots the person Voted for as President and the person voted for as Vice President of the United States;" and the resolution was read. Ordered, That it lie on file. Mr. ADAMS, from the committee to whom was referred, on the 4th instant, the bill, entitled "An act making an appropriation for carrying into effect the seventh article of the Treaty of Amity, Commerce, and Navigation, between the United States and His Britannic Majesty," reported the same without amendment. Ordered, That this bill pass to a third reading. A motion was made, that it be Resolved, by the Senate and House of Representatives, That copies of the laws passed the first session of the seventh Congress be printed, under the direction of the Secretary of the Senate and Clerk of the House of Representatives. And it was agreed that the motion lie for consideration. The PRESIDENT communicated a letter from Dewitt Clinton, late a Senator from the State of New York, stating that he had resigned his seat in the Senate. MONDAY, November 14. The PRESIDENT administered the oath required by law to Mr. CONDIT, a Senator from the State of New Jersey. On motion, the Senate resumed the consideration of the resolution proposed on the 27th of October last respecting the impeachment of John Pickering; and having agreed to an amendment thereto, Resolved, That a committee be appointed to inquire if any, and what, further proceedings at present ought to be had by the Senate respecting the impeachment of John Pickering, made at the bar of this Senate by two members of the House of Representatives on the last day of the last session of Congress; and Ordered, That Messrs. TRACY, BRADLEY, BALD |