[OCTOBER, 1803. gate to him the exercise of the powers thenselves. Is there any difference between this, and the provisions of the ordinance of 1787, which relates to territorial governments? By that ordinance, and I have never heard its constitutionality questioned, all the civil, military, and judicial powers are vested in such persons as the President may appoint.

and of consequence, no time for reflection had been allowed. Under these circumstances, it was indeed extraordinary that he should be expected to propose a plan. He confessed he was unable to offer any. To do it would doubtless require time and deliberation. It was sufficient for him that the bill infringed the constitution. By the second section it is proposed to transfer to the President of the United States all the Mr. MITCHILL expressed his wish that the powers, civil, military, and judicial, exercised at section of the bill might stand. To strike it present in that province. What are those pow-out would be to make void all the proceedings ers? No gentleman is able to inform me. It may be presumed that they are legislative; the President, therefore, is to be made the legislator of that country; that they are judicial, the President, therefore, is to be made judge; that they are executive, and so far they constitutionally devolve on the President. Hence, we are about making the President the legislator, the judge, and the executive of this territory. I do not, said Mr. G., understand that, according to the constitution, we have a right to make him legislator, judge, and executive, in any territory belonging to the United States. Though, therefore, on this occasion, I feel no jealousy of the abuse of the powers conferred on the President, yet I cannot agree to them, because I consider them repugnant to the constitution.

me.

The argument that the powers are necessary, though unconstitutional, is no argument with If gentlemen can so explain the section, as to show to the satisfaction of the committee that it is competent to this House to transfer to the President all these powers, I shall have no objection to the section; but until this is done, it is my duty to vote for striking it out. And though it is impossible for me, at this moment, to devise a plan for overcoming these difficulties, yet I trust, if time be allowed, there will be found wisdom enough in the committee to devise one. To the first section, authorizing the taking possession of the country, so far as I can understand it, I can see no objection.

Mr. NICHOLSON was opposed to striking out the second section, as he did not perceive the evils contemplated by the gentleman from Connecticut. The question is, whether we shall take immediate possession of this country, or wait till this body shall have time to form such a government as shall be hereafter likely to render the people happy, under laws according to the provisions of the constitution? I think, said Mr. N., it will be injudicious to delay taking the possession, until such a government shall be formed. The only question then that can be started is, whether the second section of this bill violates the constitution. On this point I differ entirely from the gentleman from Connecticut. I do not see in it any violation of the constitution. The gentleman supposes that by adopting the provisions of the second section we shall vest all the civil, military, and judicial powers of the existing Government of Louisiana in the President. But it clearly is not so. We vest in him the appointment of the persons who shall exercise these powers, but we do not dele

respecting the province of Louisiana, on which Congress had been engaged with so much care and diligence. We had purchased the country, and made arrangements to pay for it; and now, with the consent of France, possession is to be taken; when behold! an objection is made to that part of the intended statute which confers on the President the power to occupy and hold it peaceably for the nation.

But, let it be examined fairly what Congress are meditating to do. The third section of the fourth article of the constitution contemplates that territory and other property may belong to the United States. By a treaty with France the nation has lately acquired title to a new territory, with various kinds of public property on it or annexed to it. By the same section of the constitution, Congress is clothed with the power to dispose of such territory and property, and to make all needful rules and regulations respecting it. This is as fair an exercise of constitutional authority as that by which we assemble and hold our seats in this House. To the title thus obtained, we wish now to add the possession; and it is proposed that for this important purpose the President shall be duly empowered. There is no person in the nation to whom this can be so properly confided as to the President.

Mr. DANA said if the amendment proposed by the gentleman from Pennsylvania were inserted, it might imply that we may pass laws that were unconstitutional; it was, therefore, superfluous. It is objected to the scope of the second section, that it is unconstitutional; insert the amendment and it nullifies it. The gentleman from New York (Mr. MITOHILL) has referred to a subject with which he is well conversant. He is correct in stating that the formal style of the English acts is in the name of the King. In the formal style of the acts of Parliament, the King is legislator; but will it be inferred from this circumstance that he is the real legislator? The gentleman is too well acquainted with the constitution and laws of that country, not to know that the King, though nominally the dispenser of justice, cannot himself sit upon the bench, and that this has been the case since the act of settlement. He might, in support of this position, refer to the declaration of a celebrated Chief Justice of England, who had said that the honor of the Crown had nothing to do with the courts of justice.

The gentleman is equally unfortunate in his

OCTOBER, 1803]

The Louisiana Treaty.

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remarks on the power of Congress to make others may be necessary. There may be diffirules for the government of a Territory. It is culties of various kinds. He should name none. objected to this, that in this case you make But as they arise, it will be the duty of the no laws at all. Is it to make laws, to say Government to be prepared to meet them. a man may do as he pleases? The proposed He would, therefore, wish this act rather to government is not even provisional or circum- increase than curtail them; and that the Presiscribed. Insufficient also is any argument dedu-dent should be authorized not only to continue cible from the ordinance establishing territorial all necessary existing powers, but to institute governments. He presumed the ordinance such other powers as may be necessary for the alluded to was that of 1787. Under that ordi- well-being of the Territory. Till when? Until nance the President is authorized to appoint this House and the other branch of the Legisthe judges of the Territory; but once appointed, lature shall make the necessary laws. The they hold their offices during good behavior. powers delegated by the bill are imposed by Who, under that ordinance, make the laws? the imperious circumstances of the case. What Neither the judges nor the President. No if forcible possession shall prove necessary, and laws can be accepted but such as have received the innocent inhabitants should be slaughtered, the sanction of a representative body. What through a want of the powers necessary to preis proposed by the bill? That all powers, serve tranquillity and good order; whose will, military, civil, and judicial, exercised by the under such circumstances, will be the governing officers of the existing government, shall be one? Will not the President, in such event, vested in such persons, and shall be exercised have all the powers now given him? in such manner as the President shall direct. Mr. R. GRISWOLD.-The powers proposed to He may, under this authority, establish the be conferred by the gentleman are without whole code of Spanish laws, however contrary limits. It may be necessary for the welfare of to our own; appoint whomsoever he pleases the people, to secure their religion. The Presias judges, and remove them according to his dent may be, therefore, constituted grand inpleasure; thus uniting in himself all the pow-quisitor, he may also be made a king, and likeer, legislative, executive, and judicial. This, though a complete despotism, gentlemen may perhaps say is necessary. If so, let the military power be exercised by the President as commander-in-chief of the armies.

wise a judge, for the good of the people. I am not, said Mr. G., willing myself to give him such extensive powers. I can, however, well account for certain gentlemen urging on this occasion the old French argument of "imperious Mr. EUSTIS said it was possible the bill under necessity." But such a pretext can never jusconsideration might in its details be objectiona- tify me in giving a vote that will violate the ble, but in principle it was certainly sound. constitution. I can, in truth, see no such neThe Government of the United States has a cessity, as provision can be made for admitting constitutional right to acquire territory, and these people to the enjoyment of all the privithey have consequently a right to take posses-leges stipulated by the treaty, without involving sion of it when acquired. The taking possession of it was not only the right, but the duty of the Government. And how is this to be effected? Will any gentleman venture to propose a delay until Congress shall have passed a new code of laws? Are gentlemen, at this late day, to be informed that this would be to throw away one of the most valuable acquisitions made by our country since the adoption of the constitution, or the Declaration of Independence? As the gentleman, last speaking, rightly observes, the entire government of Spain ceases on our taking possession. Are we then to abandon the people to anarchy?

As to the extent of the power vested in the Executive, it arises from necessity. This is a new case altogether. There is no doubt that on many particular subordinate points, respecting the secure possession of this country, difficulties may present themselves. But Mr. E. presumed and expected that the same wisdom that acquired it, would preside over the councils of the nation to meet and overcome those difficulties. The second section of the bill contemplates the transfer to officers of the United States, of the same powers now exercised. It may be that the exercise of all these powers will not be necessary; while it is possible that

a violation of the constitution. Gentlemen may criminate, as they please, the motives of those who are for restraining this extension of executive power; but I trust, whatever may be the feelings of gentlemen, that the committee will not be impressed with the same opinion eutertained by them; but that if they consider this delegation of power as repugnant to the constitution, they will not agree to it, or, in other words, to the investiture of the President with absolute power over this province. If, on the other hand, they think the delegation is constitutional, they will feel no repugnance to agreeing to it; because, as I observed before, the power will be of short duration, and will not, probably, be abused.

As to the idea of some gentlemen, that this territory, not being a part of the United States, but a colony, and that therefore we may do as we please with it, it is not correct. If we acquire a colony by conquest or purchase—and I believe we may do both-it is not consistent with the constitution to delegate to the President, even over a colony thus acquired, all power, legislative, executive, and judicial; for this would make him the despot of the colony. Mr. G. concluded his remarks by observing that he had no jealousy of the abuse of this power

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The Louisiana Treaty.

[OCTOBER, 1803.

by the President; but not being, in his opinion, | was formed. If, then, there exist the right to authorized by the constitution, he could not agree to vote for it.

acquire territory, there is a consequence of the laws that pervade all civilized nations, which Mr. SMILIE said, this subject struck him dif- will show not only the constitutionality but the ferently from other gentlemen. If it appeared propriety also of this section. It is a received clear to him that the constitutional right to principle of the law of nations, that, when terdelegate the powers contemplated by the second ritory is ceded, the people who inhabit it have section did not exist, he should vote against it. a right to the laws they formerly lived under, But he entertained no doubt on this point. He embracing the whole civil and criminal code, knew that it had been doubted whether the until they are altered or amended by the constitution authorized the Government of the country to whom the cession is made. This is United States to acquire territory; but those the received principle of the law of nations, and doubts were this day abandoned. He agreed in operates wherever the right to acquire territory opinion with the gentleman from Massachusetts, is previously given. I will put a plain case, on (Mr. VARNUM,) that the Constitution of the the ground so commonly of late resorted to, that United States did not extend to this territory of acquiring territory by war. The right to any further than they were bound by the com- make war is vested by the constitution in the pact between the ceding power and the people. Government of the United States. Suppose we On this principle they had a right, viewing it had gone down the Mississippi, and favored the in the light of a colony, to give it such govern- wishes of some of our citizens. Would not ment as the Government of the United States gentlemen, in that case, have acknowledged might think proper, without thereby violating that we should have possessed the right of laythe constitution; when incorporated into the ing contributions? Should we not have had Union, the inhabitants must enjoy all the rights the right of saying to those who exercised the of citizens. He would thank gentlemen to show powers of government in that country, "Beany part of the constitution that extends either gone! We will make new arrangements; the legislative, executive, or judicial power, over powers of government shall be exercised by this territory. If none such could be shown, it such particular organs as we like. Your laws must rest with the discretion of the Govern- and your religion shall be preserved; but your ment to give it such a system as they may think officers shall be replaced by ours." Under the best for it. At the same time, Mr. S. said, he laws of nations we should have enjoyed all these would pledge himself to be among the first to powers. incorporate the territory in the Union, and to admit the people to all the rights of citizens of the United States.

Mr. RODNEY.-When a constitutional question is made, and constitutional objections urged by a respectable member of this House, they shall always receive from me a respectful attention. On this occasion I shall endeavor to answer the objections, and remove the doubts entertained by some gentlemen. I believe we shall find that, by adopting the second section of the bill under consideration, we shall not infringe the constitution in the remotest degree. No person is more opposed to the extreme of absolute and unlimited power, or to vesting in any man that authority which, by not being circumscribed within known bounds, may be easily abused. No man can be more opposed to the exercise by the President of powers exercised by the Spanish inquisition, and authorized by other Governments. But cases may occur where, for a moment, powers to which, without an absolute necessity, no one would agree, become necessary to be vested in some department of the Government; and I am in favor of this section for the reasons assigned by my friend from Virginia, to wit, that the exercise of the powers delegated will be confined to a short space, and will be of no further duration than shall be necessary to obtain the end of a secure possession of the Territory.

The United States, it is acknowledged, have a right to extend their territory beyond that which they possessed when the constitution

But, independent of this power conferred by the law of nations, I am inclined to think the provisions of the constitution apply to this case. There is a wide distinction between States and Territories, and the constitution appears clearly to indicate it. By examining the constitution accurately, it will be found that the provision relied upon by the gentleman from Connecticut will not avail to support his argument. It will appear that it is to operate in the case of States only. By the third section of the fourth article of the constitution, it is declared that "the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States or any particular State."

This provision does not limit or restrain the authority of Congress with respect to Territories, but vests them with full and complete power to exercise a sound discretion generally on the subject. Let us not be told this power, from its greatness, is liable to abuse. If arguments are drawn from the abuse against the use of power, I know no power which may not be abused, and it will follow that the saine arguments that are urged against the use of this power may be urged against the use of all power.

We may be told that, in the government of the Northwestern Territory, there are certain fixed rules established. But by a recurrence to

the ordinance for the government of that Territory, and to the laws of Congress subsequently made, it will be seen that Congress have conceived themselves to be possessed of the right, and have actually exercised the power, to alter the Territory, by adding to or taking from it as they thought proper, and by making rules variant from those under which it was originally

organized.

In the Territories of the United States, under the ordinances of Congress, the governor and the judges have a right to make laws. Could this be done in a State? I presume not. It shows that Congress have a power in the Territories, which they cannot exercise in States; and that the limitations of power, found in the constitution, are applicable to States and not to Territories.

The question was then put on striking out the second section, and lost—ayes 30. The bill was ordered to be engrossed for a third reading to-morrow.

FRIDAY, October 28.

Louisiana Treaty. The bill sent from the Senate, entitled "An act to enable the President of the United States to take possession of the territories ceded by France to the United States, by the treaty concluded at Paris on the thirtieth of April last, and for the temporary government thereof," together with the amendments agreed to yesterday, was read the second time, as follows:

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YEAS.-Willis Alston, Isaac Anderson, John Archer, David Bard, George M. Bedinger, Samuel Bishop, William Blackledge, John Boyle, Robert Brown, William Butler, George W. Campbell, John Campbell, Levi Casey, Thomas Claiborne, Joseph Clay, Matthew Clay, John Clopton, Frederick Conrad, William Dickson, John Earle, Peter Early, John W. Jacob Crowninshield, Richard Cutts, John Dawson, Eppes, William Eustis, William Findlay, John Fowler, Peterson Goodwyn, Andrew Gregg, Wade Hampton, John A. Hanna, Josiah Hasbrouck, Daniel Heister, Joseph Heister, William Hoge, James Holland, David Holmes, Benjamin Huger, Walter Jones, William Kennedy, Nehemiah Knight, Michael Leib, John B. C. Lucas, Matthew Lyon, Andrew McCord, William McCreery, David Meriwether, Samuel L. Mitchill, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, Gideon Olin, Beriah Palmer, John Patterson, Samuel D. Purviance, John Randolph, jr., Thomas M. Randolph, John Rea of Pennsylvania, John Rhea Erastus Root, Thomas Sammons, Thomas Sanford, of Tennessee, Jacob Richards, Cæsar A. Rodney, Ebenezer Seaver, John Smilie, John Smith of New York, John Smith of Virginia, Richard Stanford, Joseph Stanton, John Stewart, David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Isaac Van Horne, Joseph B. Varnum, Daniel C. Verplanck, Matthew Walton, John Whitehill, Marmaduke Williams, Richard Winn, Jos. Winston, and Thomas Wynns.

NAYS.-William Chamberlain, Martin Chittenden, Clifton Claggett, Samuel W. Dana, John Davenport, Thomas Dwight, James Elliot, Calvin Goddard, Thomas Griffin, Gaylord Griswold, Roger Griswold, Seth Hastings, Joseph Lewis, jr., Thomas Lewis, Henry W. Livingston, Nahum Mitchell, Thomas Stedman, James Stephenson, Samuel Tenney, and Plater, Joshua Sands, John Cotton Smith, William

Samuel Thatcher.

SATURDAY, October 29.
Mourning for Edmund Pendleton.

Be it enacted, by the Senate and House of Representatives of the United States of America, in Congress assembled, That the President of the United States be, and he is hereby, authorized to take possession of and occupy the territory ceded by France to the United States, by the treaty concluded at Paris on the thirtieth of April last, between the two nations; and Mr. Eustis rose and observed, that within a that he may for that purpose, and in order to maintain in the said territories the authority of the United few days past the House were called upon to States, employ any part of the Army and Navy of the take notice of an event which, perhaps, would United States, and of the force authorized by an act be more interesting to posterity than to the passed the third day of March last, entitled An act present generation; the death of one of those directing a detachment from the militia of the United illustrious patriots who, by a life devoted to his States, and for erecting certain arsenals,' which he country, had bequeathed a name and an example may deem necessary, and so much of the sum appro-to posterity which he would not attempt to depriated by the said act as may be necessary, is hereby appropriated for the purpose of carrying this act into effect; to be applied under the direction of the

President of the United States.

scribe. He had information that another of
these sages, EDMUND PENDLETON, of Virginia,
had paid the last tribute to nature.

the House the following resolution:
On this occasion he begged leave to offer to

SEC. 2. And be it further enacted, That, until the expiration of the present session of Congress, or unless provision be sooner made for the temporary governResolved, That this House, impressed with a lively ment of the said territories, all the military, civil, and sense of the important services rendered to his country judicial powers exercised by the officers of the exist- by EDMUND PENDLETON, deceased, will wear a badge ing Government of the same, shall be vested in of mourning for thirty days, as an emblem of their vensuch person and persons, and shall be exercised in eration for his illustrious character, and of their regret such manner as the President of the United States that another star has fallen from the splendid conshall direct, for maintaining and protecting the in-stellation of virtue and talents which guided the peohabitants of Louisiana in the full enjoyment of their ple of the United States in their struggle for Indepenliberty, property, and religion.

On the question, Shall the bill pass? the yeas and nays were required, and stood-yeas 89, nays 23, as follows:

dence.

The resolution was immediately taken up, and agreed to—ayes 77.