Mr. BLAND.--It seems to be agreed on all hands, that there does exist a

power of removal; the contrary doctrine would be a solecism in

Government. If an officer embezzles the public money, or neglects or

refuses to do the duties of his appointment, can it be supposed there is

no way of getting rid of such a person? He was certain it was

essentially necessary such a power should be lodged somewhere, or it

would be impossible to carry the Government into execution. Their

inquiries were therefore reduced to this point: Does it reside,

agreeably to the constitution, in the President, or in the President and

the Senate? The constitution declares, that the President and the Senate

shall appoint, and it naturally follows, that the power which appoints

shall remove also. What would be the consequence of the removal by the

President alone, he had already mentioned, and need not repeat. A new

President might, by turning out the great officers, bring about a change

of the ministry, and throw the affairs of the Union into disorder: would

not this, in fact, make the President a monarch, and give him absolute

power over all the great departments of Government? It signifies nothing

that the Senate have a check over the appointment, because he can

remove, and tire out the good disposition of the Senate.

Mr. CLYMER said, the power of removal was an executive power, and as

such belonged to the President alone, by the express words of the

constitution: "the executive power shall be vested in a President of the

United States of America." The Senate were not an executive body; they

were a legislative one. It was true, in some instances, they held a

qualified check over the executive power, but that was in consequence of

an express declaration in the constitution; without such declaration,

they would not have been called upon for advice and consent in the case

of appointment. Why, then, shall we extend their power to control the

removal which is naturally in the Executive, unless it is likewise

expressly declared in the constitution?

The question on adding the words "by and with the advice and consent of

the Senate," as moved by Mr. BLAND, was put and lost.

The question was now taken, and carried by a considerable majority, in

favor of declaring the power of removal to be in the President.

WEDNESDAY, May 20.

_Treasury Department._

The House again resolved itself into a Committee of the Whole on the

state of the Union, Mr. TRUMBULL in the chair. The resolution for

establishing the Treasury Department being under consideration:

Mr. GERRY.--We are now called upon, Mr. Speaker, to deliberate, whether

we shall place this all-important department in the hands of a single

individual, or in a Board of Commissioners. I presume the gentleman, who

has brought forward this string of propositions, means, that this

officer shall have power to examine into the state of the public debt

and expenses, to receive and disburse the revenue, to devise plans for

its improvement and expansion, and, in short, to superintend and direct

the receipts and expenditure, and govern the finances of the United

States; having under him officers to do the subordinate business of

registering and recording his transactions, and a Comptroller to control

his operations with respect to the accounts and vouchers.

Before this committee proceed one step farther in this business, they

ought seriously to consider the situation of this country, and what will

be the consequence of appointing such an officer; consider how it will

affect the public in general, the revenue, and even the Government

itself. He is declared, in the list of duties assigned him in the paper

read yesterday by the gentleman from New York, (Mr. BENSON,) to have the

power to form and digest the accounts, and to control all the officers

of the department. It is evident, that we put his integrity to the

trial, by such an arrangement. If he is disposed to embezzle the public

money, it will be out of the power of the Executive itself to check or

control him in his nefarious practices. The extension of his business to

the collectors of at least fifty seaports, (over whom the naval officer

can have no control, with respect to the money received,) will furnish

abundant opportunities for peculation. In addition to the moneys arising

from the impost, he may have to do with large sums derived from other

quarters, from the sale of the vacant lands, the money of defaulters now

due to the United States, and the revenue arising from taxes and

excises. Admit these innumerable opportunities for defrauding the

revenue, without check or control, and it is next to impossible he

should remain unsullied in his reputation, or innoxious with respect to

misapplying his trust.

Other great opportunities may arise in case of an anticipation of the

public revenue; or, if it is necessary to prevent the injury which a

rapid depreciation of the securities would occasion to public credit, he

may be employed in purchasing them, in order to advance the credit of

the Union. But what is to prevent the greatest imposition in this

business? Charging them to the public at their nominal value, it is not

in the power of the Government to check this species of speculation;

what then is the situation of your officer? He must subject himself to

suspicion: indeed, it is as much as his reputation is worth to come into

a place of this kind; he can hardly preserve his integrity. His honor,

credit, and character, must inevitably be injured. He cannot prove

himself innocent of the suspicion, because it is the negative side of

the question. He can offer nothing more in his defence than a mere

denial of the crime.

There is another point which ought to be well considered: This officer

is to digest and form the accounts. He can consequently give the

business such complexity, as to render it impossible to detect his

impositions; and as the inferior officers, who might discover the fraud,

are to be appointed by the principal, will they not consequently be men

after his own heart?

Taking these circumstances together, it must be very disagreeable to the

person appointed, provided he is an honest, upright man; it will be

disagreeable also to the people of the Union, who will always have

reason to suspect, that a partiality is shown to the collectors, and

other officers of the State to which he belonged. This has absolutely

been the case, and was productive of very great dissatisfaction. I would

be glad to know of the gentlemen, who are for vesting these powers in a

single person, where they will find the man who is capable of performing

the duties of a financier? For it is not the mere calling him a

financier, and giving him a large salary, that will enable him to

perform his functions in such a manner as to give satisfaction. We had

once a gentleman who filled such a department, and I believe the only

one in the United States who had knowledge and abilities by any means

competent to the business; but that gentleman is now employed in another

branch of the Government, and cannot be called to this trust. During the

late war, Congress thinking it necessary to employ a financier, were led

to inquire for a proper character to fill such an office; but not being

able to discover such a one in this country, in whose abilities they had

sufficient confidence, they wrote to Doctor Price a letter, to induce

him to come to America, and accept of an appointment under them, for the

superintendence of their finances. He wrote, in answer, that he felt

with gratitude the honor which they had done him by their application,

and signified, that he was desirous of rendering every service in his

power to aid the glorious cause in which America was embarked; but, from

his advanced situation in life, and infirmities of body, he was under

the necessity of declining. This circumstance serves to show how

difficult it is to get a proper person for so arduous an undertaking.

But it appears to me, that if we could fix upon a person equal to the

office, involving him in forming accounts, and such trifling business,

would divert his attention from the more important duties he is called

upon to perform. The proper business of finance, I take it, ought to be

to consider of the means to improve the revenue, and introducing economy

into the expenditures; to recommend general systems of finance, without

having any thing to do with the actual administration of them, because,

if he engages in the executive business, we shall be deprived of his

talents in more important concerns. If it should be granted that there

is a person of abilities to be found, adequate to the duties of the

office, I want to know where the advantage arises of appointing him

alone in preference to a Board? If you have commissioners, you have an

opportunity of taking one from each grand division of the United States,

namely, the Eastern, the Middle, and Southern Districts. If this person

is a member of the Board, is it not evident you will have every

advantage from his abilities in such a situation, as you would if he

were placed in office without control? If he was possessed of such

genius, he could employ it more usefully as a Commissioner of the Board

of Treasury, than when left to perform all the drudgery of the executive

part; because while his fine imagination was busied in reducing a chaos

to a beautiful system, his colleagues might perform those parts which

required less elevation of thought; by dividing the burthen, the

business would be done with more regularity and facility. Surely no

advantage to the public would arise from giving him the sole management

of the business, but much inconvenience might; besides, it must

unavoidably, as I said before, subject him to suspicions unfavorable to

his reputation. This has absolutely been realized; it is not a mere

chimera, a matter of speculation. We have had a Board of Treasury, and

we have had a Financier. Have not express charges, as well as vague

rumors, been brought against him at the bar of the public? They may be

unfounded, it is true; but it shows that a man cannot serve in such a

station without exciting popular clamor. It is very well known, I dare

say, to many gentlemen in this House, that the noise and commotion were

such as obliged Congress once more to alter their Treasury Department,

and place it under the management of a Board of Commissioners. We have

seen speculations excited from this quarter against the Government

itself, and painful insinuations of design by his appointment to the

Senate. I mention these circumstances to exhibit to your view the

inconveniencies to which an officer is subjected by constituting an

office of this nature. If the gentleman I have alluded to had been a

member of the Board of Treasury, he would not have been subjected to the

charges which were brought against him. In such a situation, he could

have rendered the services his great abilities enabled him to do,

without exposing his character to be torn to pieces by malevolence or

detraction.

I am desirous of supporting the President; but the Senate requires to be

supported also in their constitutional rights. To this body belongs the

confidence of the States; while the President rests his support upon

them he will be secure. They, with this House, can give him proper

information of what is for the public interest, and, by pursuing their

advice, he will continue to himself that good opinion which is justly

entertained of him. If we are to establish a number of such grand

officers as these, the consequences appear to me pretty plain. These

officers, bearing the titles of minister at war, minister of state,

minister for the finances, minister of foreign affairs, and how many

more ministers I cannot say, will be made necessary to the President. If

by this establishment we make them more respectable than the other

branches of the Government, the President will be induced to place more

confidence in them than in the Senate; the people will also be led to

consider them as more consequential persons. But all high officers of

this kind must have confidence placed in them; they will in fact be the

chancellors, the ministers of the nation. It will lead to the

establishment of a system of favoritism, and the principal magistrate

will be governed by these men. An oligarchy will be confirmed upon the

ruin of the democracy; a Government most hateful will descend to our

posterity, and all our exertions in the glorious cause of freedom will

be frustrated: we shall go on till we reduce the powers of the President

and Senate to nothing but a name. This surely, sir, does not comport

with the conduct of the House. We have been very tenacious of giving a

title to the President, lest it should be implied we desired to increase

his power. We would call him by no other appellation than merely

President of the United States. I confess I was not such a stickler

about titles as all this, because I did not consider that the liberties

of the people could be hurt by such means; but I am not clear that the

constitution authorizes us to bestow titles; it is not among the

enumerated powers of Congress. But if the constitution did authorize

it--[A call to order was made by some of the members, and Mr. GERRY was

desired to confine himself to the point; the subject of titles was not

before the House.][25] Mr. GERRY proceeded, and said the Senate were

constitutionally the highest officers of Government, except the

President and Vice President; that the House was about to supersede

them, and place over their heads a set of ministers who were to hold the

reins of Government, and all this to answer no good purpose whatever;

because the same services could be obtained from subordinate officers.

In short, a Board of Treasury would conduct the business of finance with

greater security and satisfaction than a single officer. He had a very

good opinion of the gentleman who formerly administered the finances of

the United States, and doubted if another of equal qualities could be

found; but it was impossible for any person to give satisfaction in such

a station. Jealousy would unavoidably be entertained; besides, no

inconvenience resulted from the present arrangement of that department;

therefore, there could be no good reason to induce a change. If the

House was truly republican and consistent, they would not admit

officers, with or without titles, to possess such amazing powers as

would eventually end in the ruin of the Government. Under these

impressions, he moved to amend the resolution so as to read, "there

shall be established a Treasury Department, at the head of which there

shall be three commissioners, to be denominated the Board of Treasury."

Mr. WADSWORTH.--My official duty has led me often to attend at the

treasury of the United States, and, from my experience, I venture to

pronounce that a Board of Treasury is the worst of all institutions.

They have doubled our national debt. (I do not mean by this observation

to censure any man who has been in that office: I presume they were

honest men, and did as well as could be done under such a system.) But I

do not remember a single instance, in any one board, that I found them

to have a system that would give even tolerable satisfaction; there

appeared a want of confidence in the members of them all: they seemed to

have no fixed principles to guide them, nor responsibility for their

conduct.

I have had also transactions at the treasury whilst it was managed by a

Superintendent of Finance. As to what fell from the gentleman last up,

(though without intention, I dare say, to affect or prejudice the

character of that officer, it may possibly have such an effect,) I think

it necessary to state my sentiments, which are formed from my own

experience as well as from report. I had great transactions with him,

and must say that there did appear to be system in his management, and

responsibility in his negotiations. I dare risk my fortune and character

with him, because there was unity in the officer, and somebody in whom I

could confide. The nature of the office is better calculated to give

satisfaction than the other. I will not pretend to enumerate the savings

he made, by introducing economy throughout the whole departments under

Congress, because I do not know them all; but they were very

considerable. The administration of the finances was clear to the

meanest capacity. Receipts and expenditures were stated simply; they

were published to the world. The heads of the Treasury Department, the

Board of Commissioners, I do not believe have closed their accounts to

this very day. I do not say it is for want of ability, will, or honesty,

that this event has not taken place. I conceive it to be owing to their

want of system in conducting their business. I wish the committee had

before them the transactions of the board for one single month; they

would find what I have remarked to be too well founded. Instead of

system and responsibility, they would find nothing but confusion and

disorder, without a possibility of checking their accounts. I know I am

heard by one gentleman who is acquainted with these truths by

experience.[26]

I beg leave to repeat once more, that under boards of treasury, there

never was a possibility of the public knowing their situation; there is

no possibility of getting on with the public accounts and closing them;

there have not been the transactions of more than one of the great

departments completely settled, owing to a radical defect in their

constitution; they cannot proceed with that unity and decision necessary

to insure justice. As to what the gentleman said, with respect to the

difficulty of getting a proper officer to fill the department, I will

just observe, that I do not believe it impossible, and am therefore

prepared to attempt it.

Mr. BENSON stated, that in the year 1781, from the very great

derangement of public affairs, Congress were induced to place the

Treasury Department under the superintendence of an individual. It is

true, after the conclusion of the war, in the latter end of 1783, or

beginning of 1784, Congress again changed their system, and placed the

department in the hands of three commissioners, to be taken, as the

gentleman has said, one from the Eastern, one from the Middle, and one

from the Southern district; which regulation I think induced above

twenty applications. Some gentlemen on this floor will doubtless

recollect an observation that was made at that time, that if this trust

had been to be reposed in one responsible individual, not perhaps more

than three of the candidates would have had confidence to come forward

as applicants for the office.

For his part, he conceived, that it required the same abilities in every

individual of the commissioners, as was necessary if a single person was

placed at the head of the department. If men competent to the

undertaking are so difficult to be found, you will increase the

embarrassment of the President threefold by making the arrangement the

gentleman contends for. The principle upon which the gentleman advocates

the appointment of a Board of Treasury, would apply in favor of a change

in the constitution, and we ought to have three Presidents of the United

States instead of one, because their business might be done with more

regularity and facility; but he did not think the argument to be well

founded.

Mr. BALDWIN thought that there were very few gentlemen who had much to

do with public business, but had turned their attention to this

question. He had employed his reflection upon the subject for some time,

and his sentiments were against the establishment of a Board of

Treasury. He was persuaded there was not so much responsibility in

boards as there was in individuals, nor is there such good ground for

the exercise of the talents of a financier in that way. Boards were

generally more destitute of energy than was an individual placed at the

head of a department. The observations of the gentleman from

Massachusetts were of great weight, so far as they inferred the

necessity of proper checks in the department having care of the public

money; if they had system, energy, and responsibility, he should be in

favor of them; but his experience had convinced him of the contrary. He

was not an advocate for an unlimited authority in this officer. He hoped

to see proper checks provided; a Comptroller, Auditors, Register, and

Treasurer. He would not suffer the Secretary to touch a farthing of the

public money beyond his salary. The settling of the accounts should be

in the Auditors and Comptroller; the registering them to be in another

officer, and the cash in the hands of one unconnected with either. He

was satisfied that in this way the treasury might be safe, and great

improvements made in the business of revenue.

Mr. MADISON had intended to have given his sentiments on this subject;

but he was anticipated in some things by the gentleman last up. He

wished, in all cases of an executive nature, that the committee should

consider the powers that were to be exercised, and where that power was

too great to be trusted to an individual, proper care should be taken so

to regulate and check the exercise, as would give indubitable security

for the perfect preservation of the public interest, and to prevent that

suspicion which men of integrity were ever desirous of avoiding. This

was his intention in the present case. If the committee agreed to his

proposition, he intended to introduce principles of caution, which he

supposed would give satisfaction on that point. As far as was

practicable, he would have the various business of this important branch

of the Government divided and modified, so as to lull at least the

jealousy expressed by the gentleman from Massachusetts; indeed, he

supposed, with the assistance of the committee, it might be formed so as

to give satisfaction. He had no doubt but that the offices might be so

constituted as to restrain and check each other; and unless an unbounded

combination took place, which he could by no means suppose was likely to

be the case, that the public would be safe and secure under the

administration. He would favor the arrangement mentioned by the worthy

gentleman from South Carolina, (Mr. BALDWIN,) and after that was

separated from the Secretary's duties, he believed the officer would

find sufficient business to employ his time and talents in rendering

essential services to his country. This arrangement he considered would

answer most of the objections which had been urged.

If a board is established, the independent officers of Comptroller and

Auditor are unknown; you then give the aggregate of these powers to the

board, the members of which are equal; therefore you give more power to

each individual than is proposed to be trusted in the Secretary; and if

apprehensions are to be entertained of a combination, they apply as

forcibly in the case of two or three commissioners combining, as they do

in the case of the Secretary, Comptroller, and other officers. If

gentlemen permit these sentiments to have their full weight, and

consider the advantages arising from energy, system, and responsibility,

which were all in favor of his motion, he had no doubt of their

according with him on this question.

Mr. BOUDINOT considered the question to be, whether the department

should be under the direction of one or more officers. He was against

boards, because he was convinced by experience that they are liable to

all the objections which gentlemen had stated. He wished the committee

had it in their power to turn to the transactions of this department

since the revolution, to examine the expenditures under former boards of

treasury, and under the Superintendent of Finance; it would so confound

them, that he was sure no gentleman would offer another argument in

favor of boards. He was not acquainted with the management under the

present board. He had not been in the habit of doing business with them.

But between the administration of the former and the Superintendent of

Finance, there was an intolerable comparison. He was far from being

astonished at the jealousy and suspicion entertained of that valuable

officer; he rather wondered that the clamor was not more loud and

tremendous. He could not repeat all the causes there were for accusation

against him, but surely they were not inconsiderable. He remembered one

hundred and forty-six supernumerary officers were brushed off in one

day, who had long been sucking the vital blood and spirit of the nation.

Was it to be wondered at, if this swarm should raise a buzz about him?

The reform which daily took place made him no inconsiderable number of

enemies. The expenditures under the Board of Treasury had been enormous.

They were curtailed in the quartermasters, commissaries of provision and

military stores, in the hospital, and every great department established

by Congress; so that, besides those who were offended by a removal,

every one who was affected by this economy, or parsimony, if they will

call it so, were incensed against him. It was impossible to gain friends

among those people by a practice of this kind. He would state a

circumstance which might give the committee some small idea of what the

savings under the Superintendent were. The expenditure of hay at a

certain post was one hundred and forty tons; such was the estimate laid

before him; yet twelve tons carried the post through the year, and the

supply was abundant, and the post was as fully and usefully occupied as

it had ever been before.

The question on the amendment proposed by Mr. GERRY was taken and lost;

after which the resolutions respecting the Treasury and War Department,

as proposed by Mr. MADISON, were both agreed to.

Mr. VINING then proposed the establishment of the Domestic Department

upon the same principles; but, on motion of Mr. BOUDINOT, the committee

rose and reported the resolutions agreed to.--Adjourned.

THURSDAY, May 21.

_Executive Departments._

The House proceeded to consider the resolution reported yesterday from

the Committee of the whole House on the state of the Union, and the same

being amended to read as follows:

_Resolved_, That it is the opinion of this committee that

there ought to be established the following executive

departments, viz: A Department of Foreign Affairs, at the

head of which shall be an officer to be called Secretary to

the United States for the Department of Foreign Affairs,

removable by the President. A Treasury Department, at the

head of which shall be an officer to be called Secretary to

the United States for the Treasury Department, removable by

the President. A Department of War, at the head of which

shall be an officer to be called Secretary to the United

States for the Department of War, removable by the

President.

_Resolved_, That this House doth concur with the committee

in the said resolution; and that a committee, to consist of

eleven members, be appointed to prepare and bring in a bill

or bills pursuant thereto.

The members elected were, Mr. BALDWIN, Mr. VINING, Mr. LIVERMORE, Mr.

MADISON, Mr. BENSON, Mr. BURKE, Mr. FITZSIMONS, Mr. BOUDINOT, Mr.

WADSWORTH, Mr. GERRY, and Mr. CADWALADER.

FRIDAY, May 22.

_Contested Election._[27]

The House resumed the consideration of the report on Mr. SMITH'S case.

After some desultory conversation on the recommitment and mode of

proceeding, it was agreed to examine the evidence in favor of Mr.

SMITH, the facts alleged by Doctor Ramsay, in proof that Mr. SMITH was

not seven years a citizen of the United States, being admitted.

Whereupon, it being moved and seconded, that the House do agree to the

following resolution:

_Resolved_, That it appears to this House, upon full and

mature consideration, that the said WILLIAM SMITH had been

seven years a citizen of the United States, at the time of

his election.

Mr. SMITH.--As the House are inclined to hear the observations I have to

make, I shall begin with admitting the facts stated in the memorial of

Doctor Ramsay, hoping the House will excuse the egotism into which I am

unavoidably drawn. I was born in Charleston, South Carolina, of a family

whose ancestors were among the first settlers of that colony, and was

sent to England for my education when I was but twelve years of age. In

1774, I was sent to Geneva, to pursue my studies, where I resided until

1778. In November, that year, I went to Paris, where I resided upwards

of two months in the character of an American gentleman. Immediately on

my arrival there, I waited on Doctor Franklin, Mr. Adams, and Mr. A.

Lee, the Commissioners from Congress to the court of France, as a

citizen of America, and was received as such by them. In January, 1779,

I left Paris for London, whither I went to procure the means of

embarking for America, from the gentleman who had been appointed my

guardian by my father when I was first sent to Europe in 1770, and from

whom alone I had any hope of obtaining such means. But in this endeavor,

I was disappointed, and remained some time in England, with the hope of

receiving remittances from Charleston. Here again my expectation was

defeated. The rapid depreciation of the continental money rendered the

negotiation of money transactions extremely difficult, and thus I

remained till the fall of Charleston. I took this opportunity of

studying the law, but could not be called to the bar, because I had not

taken the oath of allegiance to Great Britain, which is a necessary

qualification. After the surrender of Charleston, the whole State of

South Carolina fell into the hands of the enemy, and it was impossible

at that time to return. No sooner, however, did I acquire the means, and

an opportunity offered, than I prepared myself to go back to America. I

quitted London for that purpose, in October or November, 1782, not in a

vessel bound to Charleston, then a British garrison, and which I

certainly should have done, had I considered myself a British subject,

and which would have been most convenient, as there were vessels

constantly going from London to Charleston; but I travelled to Ostend,

and there embarked in a neutral vessel bound to St. Kitt's, from whence

it was my intention to proceed to a Danish island, and thence to some

American port in North Carolina or Georgia, from whence I could reach

the American camp. In the beginning of January, 1783, I sailed from

Ostend, but was detained a considerable time by contrary winds, and in

the middle of the month of February, was shipwrecked on the coast of

England, and was obliged to return to London in order to procure another

passage. These circumstances unavoidably prevented my return to

Charleston, until some time in November, 1783.

On my arrival at Charleston, I was received by my countrymen as a

citizen of the State of South Carolina, and elected by their free

suffrage a member of the Legislature in November, 1784. In the August

following I was chosen, by the Governor and Council, a member of the

Privy Council, and this election was confirmed by the Legislature the

October following. In September, the same year, I was elected one of the

Wardens of the City of Charleston. In November, 1786, I was again

elected into the Legislature; again in November, 1788; I was elected at

the same time that I was elected to the House of Representatives of the

United States, the September preceding having been chosen again a Warden

of the city.

After having stated these facts, he went on adverting to the laws

referred to in the report of the committee, which, he said, he conceived

to be applicable to the present case.

In September, 1779, a question was discussed in the Legislature of South

Carolina, respecting the young men who were sent abroad for their

education, and it was determined that it was most for the interest of

the State, that they should be allowed to continue in Europe till they

were twenty-two years of age; after which the law provided they should

be doubly taxed if they did not return. This law might fairly be

supposed to recognize the citizenship of all the young men in a similar

predicament with himself. It allowed them all to be absent until they

were twenty-two years of age; but even after that period it did not

deprive them of the right of citizenship; it only subjected them to the

penalty of a double tax. This he contended was a sort of compact with

him, that if he chose to be absent after that time, he should suffer a

certain penalty, which, in its own nature, implied that his citizenship

remained; but before he attained that age, South Carolina was in such a

situation that her best friends were compelled to be absent, and take

refuge in distant countries. It was not till some time after that the

friends of the American cause began to assemble in that State; the

absentee law, therefore, never operated on him, and he never was doubly

taxed.

In February, 1782, the Legislature met at Jacksonburg, and discriminated

between friend and foe, between American and British subjects, by

disposing of the estates of the latter, and banishing them; from an

inspection of the law passed at that time, it would be evident in what

light they viewed him. He had landed property in the State, but was

himself in England; yet they did not attempt to confiscate his

property, or subject him to an amercement. The absentee law was his

safeguard, he had the permission of the State to be abroad.

If the Legislature in 1782 recognized as citizens some of those persons

whose estates were confiscated for adhering to Great Britain, and for

being disaffected to America _a fortiori_, did it not recognize as a

citizen one whose estate was not forfeited, who had not been deemed

worthy of punishment, and who had been absent under the sanction of the

law?

By the constitution of South Carolina it appears, that no person was

eligible to a seat in the Legislature until he had resided three years,

nor to a seat in the Privy Council until he had resided five years in

the State. He had a seat in both those bodies before he had resided two

years in the State of South Carolina, and no objection was ever made on

that score. He could not have been qualified for either, had not the

people of South Carolina deemed his residence in that State, such a

residence as gained him a qualification; or had they not supposed the

qualification required in the constitution applied only to new comers

and new citizens, for whom that residence was necessary to wean them

from their local prejudices and national habits, and to attach them to

the commonwealth. Had they not, in short, supposed him to have been a

citizen during the revolution, and attached to his native State by every

tie which could bind an individual to any country. Three years'

residence was either not required of him, or his former residence was

deemed within the meaning of the constitution.

An act to confer the right of citizenship on aliens was passed March 26,

1784. For the purpose of possessing the subordinate rights of

citizenship, such as an exemption from the alien duty, a residence of

one year, and taking the oath of allegiance, was sufficient. To confer a

right of voting at elections, a person must have been admitted a citizen

two years prior to his voting; but for the higher privileges of a

citizen, being eligible to offices of trust, to a seat in the

Legislature and Privy Council, the alien must have been naturalized by

law. Now, in November, 1784, he was elected into the Legislature, and

took his seat without objection in January, 1785, and was elected into

the Privy Council, October, 1785; all without being naturalized by law.

In October, 1785, when he was elected to the Council, his election was

opposed, but the objection now brought forward was not then made; and

the memorialist himself, who was a member of the Legislature, voted in

favor of the choice; though, unquestionably, unless he was considered by

the Legislature as a citizen before he returned to Charleston, nothing

had afterwards occurred to make him so, and the alien act of 1784

positively required a naturalization by act of Assembly to give him a

qualification.

The constitution of South Carolina is silent as to citizenship, but

allowed any person to vote at elections who had resided a year in the

State, and paid a certain tax; to be a member of the Assembly he must

have resided three, and to be a Privy Councillor five years previous to

his election, but nothing was said about citizenship. The act of 1784,

however, expressly defined who should and who should not be deemed

citizens; and, consequently, all persons who did not become citizens

must have been held to be aliens, and considered so, till they had

conformed to the alien act of 1784. Now, as he was admitted to offices

of trust, to which aliens were not admissible, and as he was admitted to

them without having the rights of citizenship conferred upon him, in

pursuance of that act, it followed clearly, that the people of South

Carolina and the Legislature acknowledged him to be a citizen by virtue

of the revolution.

He went on to observe, that, from the doctrine laid down by the

memorialist, it was difficult to ascertain when he did become a citizen

of South Carolina. When he was admitted to the bar in 1784, he did no

act which made him a citizen, the bare act of taking an oath of

qualification to an office could not convert an alien to a citizen. The

constitution seemed to imply a mere residence of a year, by giving a

right to vote, gave a right of citizenship; if that were the case, and

if his residence prior to the revolution was considered such a residence

as the constitution required, then he was a citizen, by virtue of the

constitution, after having resided a year in Carolina. Now, it was

clear, his residence prior to the war was deemed such a residence as the

constitution required; because he was admitted to vote and admitted to a

seat in the Legislature and Council by right of such residence, not

having had the requisite residence since the war, and yet being deemed

qualified. If, therefore, that part of the constitution which gave a

right of voting, in consequence of a year's residence and paying a

certain tax, virtually conferred citizenship, by giving a right to vote,

(and it appeared absurd that a right to vote should be given to persons

not citizens,) and if, also, his residence, prior to the revolution, was

deemed a sufficient residence, then he was a citizen by virtue of the

constitution.

The points that seemed most to be relied upon by the memorialist were:

1st. That residence was actually necessary to confer citizenship, or, in

other words, that a person could not become a citizen of a country, till

he has resided in it.

2d. That a person could not become a citizen till he was of age to

choose his country.

In answer to the first, he denied that residence in the country was

absolutely necessary. Was it to be supposed, he asked, that when a man

sent his son into another country for his education and improvement, the

son was thereby to lose any political benefits which might, during such

temporary absence, accrue to his country? If his father had lived a few

years longer, would there have arisen any question on this subject?

Would he not, though absent, have acquired, according to the

petitioner's own positions, a right of citizenship? And should his

death, at such an early period, not be deemed a sufficient misfortune

for him, without using that as a pretence for making him an alien? Those

who represented him in Carolina as his guardians, who were _in loco

parentis_, were residents in Carolina at the declaration of

independence.

His property was in Carolina, his money in the treasury, assisting to

carry on the war. The declaration of independence affected him as much,

though at Geneva, as it did those in Carolina; his happiness, that of

his dearest connections, his property, were deeply interested in it: his

fate was so closely connected with that of Carolina, that any revolution

in Carolina was a revolution to him. Though a minor, as soon as he heard

of the independence of America, he considered himself an American

citizen.

If a person could not become a citizen of a country without residing in

it, what should be said of those gentlemen who had been in Europe during

the war, and were now in high office in America? Several of them went to

Europe before the war, were there at the declaration of independence,

and did not return to America till after the war, or about the close of

it. When did their citizenship commence? According to the petitioner,

they could not become citizens of America until they returned to

America, and took an oath of allegiance to the States; but Congress

employed them in offices of great confidence, before they had returned

to America, or taken such oath. Congress, therefore, considered them

citizens, by virtue of the revolution.

It had been said, that Carolina had called on her young men to come to

her assistance. This was not the true state of the case. Carolina

thought that her young men who were abroad for their education, should

not be taken from their studies till they were twenty-two years of age,

and doubly taxed them after that. His guardian wrote to him that he had

permission of the Legislature to be absent till he was twenty-two, and

that he should be doubly taxed after that age.

It has been also said, that Carolina tendered an oath, to discover who

were friends, and who were enemies. In March, 1778, the Legislature of

South Carolina passed an act to oblige every free male inhabitant of

that State, above sixteen years of age, to take an oath of allegiance to

the State. As there were notoriously many persons then in the State who

were inimical to its liberties, such a step was necessary to give a

reasonable cause for obliging them to quit the country. With that view,

the oath was generally tendered only to those who were suspected or

known not to be friendly to the cause. He had been informed by several

persons, who were zealous partisans, and then in Carolina, that they had

never taken any oath of allegiance, and that it had not been required

of them on this occasion.

The act directed, that those who did not take it, should quit the State;

and, if they returned, should be dealt with as traitors, and suffer

death. Let us examine whether this act can, in any respect, apply to the

present question. 1st. It particularly mentioned "inhabitants of the

State of South Carolina." It could not, therefore, apply to persons who

were abroad. 2dly. It directed that the oath should be taken before a

justice of peace in Carolina; this could not, therefore, extend to a

person then at Geneva. 3dly. It was directed to be taken in one month

after the passing of the act; and it was not possible that I should hear

of the existence of such an act in less than three months. 4thly. It was

directed, that if the persons refused to take it, they should quit the

State; but I was already out of it. 5thly. Those who refused to take it,

were prevented from acquiring or conveying property, and rendered

incapable of exercising any profession. But on my return to Carolina, I

took peaceable possession of my estate, part of which consisted of lands

and houses, which had been mine since the year 1770; and I was

immediately admitted to the exercise of the profession for which I was

educated. 6thly. The act directed, that if any person returned to

Carolina, after having refused to take the oath, he should be put to

death as a traitor; and, yet, on my return, never having taken the oath,

I was elected a member of the Legislature, and a Privy Councillor; and,

instead of being deemed a criminal myself, I acted as Attorney General

to punish others; and yet the petitioner, in one of his late

publications, lays great stress on the applicability of this act.

2dly. There could be no doubt that a minor might be a citizen, from the

very words of the constitution, which admitted a person to be a member

of the House of Representatives at twenty-five, and yet required a

citizenship of seven years. This was of itself a sufficient refutation

of every thing contained in the petition on this head. The constitution

acknowledged that a person might be a citizen at eighteen; if so, there

was no reason why a person might not be one at sixteen or fourteen.

Mr. LEE said, the committee had now to determine, whether Mr. SMITH was

a citizen of South Carolina during his absence from home, or not. If the

laws of that State recognized him as such, the question was determined,

because this House could not dispute a fact of that kind. From the

reference that has been made to the constitution and laws of South

Carolina, and the circumstances which took place under them, with

respect to Mr. SMITH, it was convincing that he was acknowledged there

to be a citizen in consequence of the revolution.

Mr. MADISON.--I think the merit of the question is now to be decided,

whether the gentleman is eligible to a seat in this House or not; but

it will depend on the decision of a previous question, whether he has

been seven years a citizen of the United States or not.

From an attention to the facts which have been adduced, and from a

consideration of the principles established by the revolution, the

conclusion I have drawn is, that Mr. SMITH was, on the declaration of

independence, a citizen of the United States; and unless it appears that

he has forfeited his right, by some neglect or overt act, he had

continued a citizen until the day of his election to a seat in this

House. I take it to be a clear point, that we are to be guided, in our

decision, by the laws and constitution of South Carolina, so far as they

can guide us; and where the laws do not expressly guide us, we must be

guided by principles of a general nature, so far as they are applicable

to the present case.

It were to be wished, that we had some law adduced, more precisely

defining the qualities of a citizen or an alien; particular laws of this

kind have obtained in some of the States; if such a law existed in South

Carolina, it might have prevented this question from ever coming before

us; but since this has not been the case, let us settle some general

principle before we proceed to the presumptive proof arising from public

measures under the law, which tend to give support to the inference

drawn from such principles.

It is an established maxim, that birth is a criterion of allegiance.

Birth, however, derives its force sometimes from place, and sometimes

from parentage; but, in general, place is the most certain criterion; it

is what applies in the United States; it will, therefore, be unnecessary

to investigate any other. Mr. SMITH founds his claim upon his

birthright; his ancestors were among the first settlers of that colony.

It is well known to many gentlemen on this floor, as well as to the

public, that the petitioner is a man of talents, one who would not

lightly hazard his reputation in support of visionary principles: yet I

cannot but think he has erred in one of the principles upon which he

grounds his charge. He supposes, when this country separated from Great

Britain, the tie of allegiance subsisted between the inhabitants of

America and the king of that nation, unless, by some adventitious

circumstance, the allegiance was transferred to one of the United

States. I think there is a distinction which will invalidate his

doctrine in this particular, a distinction between that primary

allegiance which we owe to that particular society of which we are

members, and the secondary allegiance we owe to the sovereign

established by that society. This distinction will be illustrated by the

doctrine established by the laws of Great Britain, which were the laws

of this country before the revolution. The sovereign cannot make a

citizen by any act of his own; he can confer denizenship; but this does

not make a man either a citizen or subject. In order to make a citizen

or subject, it is established, that allegiance shall first be due to

the whole nation; it is necessary that a national act should pass to

admit an individual member. In order to become a member of the British

Empire, where birth has not endowed the person with that privilege, he

must be naturalized by an act of Parliament.

What was the situation of the people of America, when the dissolution of

their allegiance took place by the declaration of independence? I

conceive that every person who owed this primary allegiance to the

particular community in which he was born, retained his right of birth,

as a member of a new community; that he was consequently absolved from

the secondary allegiance he had owed to the British sovereign. If he

were not a minor, he became bound, by his own act, as a member of the

society who separated with him from a submission to a foreign country.

If he were a minor, his consent was involved in the decision of that

society to which he belonged by the ties of nature. What was the

allegiance, as a citizen of South Carolina, he owed to the King of Great

Britain? He owed his allegiance to him as a king of that society to

which, as a society, he owed his primary allegiance. When that society

separated from Great Britain, he was bound by that act, and his

allegiance transferred to that society, or the sovereign which that

society should set up; because it was through his membership of the

society of South Carolina that he owed allegiance to Great Britain.

This reasoning will hold good, unless it is supposed that the separation

which took place between these States and Great Britain, not only

dissolved the union between those countries, but dissolved the union

among the citizens themselves: that the original compact, which made

them altogether one society, being dissolved, they could not fall into

pieces, each part making an independent society; but must individually

revert into a state of nature; but I do not conceive that this was, of

necessity, to be the case; I believe such a revolution did not

absolutely take place. But in supposing that this was the case, lies the

error of the memorialist. I conceive the colonies remained as a

political society, detached from their former connection with another

society, without dissolving into a state of nature; but capable of

substituting a new form of government in the place of the old one, which

they had, for special considerations, abolished. Suppose the State of

South Carolina should think proper to revise her constitution, abolish

that which now exists, and establish another form of government: surely

this would not dissolve the social compact. It would not throw them back

into a state of nature. It would not dissolve the union between the

individual members of that society. It would leave them in perfect

society, changing only the mode of action, which they are always at

liberty to arrange. Mr. SMITH being then, at the declaration of

independence, a minor, but being a member of that particular society,

he became, in my opinion, bound by the decision of the society, with

respect to the question of independence and change of Government; and if

afterwards he had taken part with the enemies of his country, he would

have been guilty of treason against that Government to which he owed

allegiance, and would have been liable to be prosecuted as a traitor.

So far as we can judge by the laws of Carolina, and the practice and

decision of that State, the principles I have adduced are supported; and

I must own, that I feel myself at liberty to decide, that Mr. SMITH was

a citizen at the declaration of independence, a citizen at the time of

his election, and, consequently, entitled to a seat in this Legislature.

Mr. JACKSON.--I differ widely from the gentleman from Virginia (Mr.

MADISON) on the subject of allegiance and the social compact, and hold

the principles advanced by him exceedingly dangerous to many of the

States, and in particular to the one I have the honor to represent. The

situation of America, at the time of the revolution, was not properly to

be compared to a people altering their mode or form of government. Nor

were there two allegiances due, one to the community here, another to

that of Great Britain. We were all on a footing; and I contend the

principle is right, in some degree, of a total reversion to a state of

nature amongst individuals, and to a mere parental or patriarchal

authority, where the heads had families dependent on them; the former,

or individual pursued that line which appeared right in his own eyes,

and the cause which he thought just; and, in the latter case, the

children followed the will of the father, who chose for them, as the

person who brought them into life, and whose fortunes they were to

inherit. I conceive the whole allegiance or compact to have been

dissolved. Many of the States were a considerable period without

establishing constitutions or forms of government, and during that

period we were in a little better state than that of nature; and then it

was that every man made his election for an original compact, or tie,

which, by his own act, or that of his father for him, he became bound to

submit to. And what, sir, would otherwise be the result? And if the

gentleman's doctrines of birth were to be supported, those minors, who,

with British bayonets, have plundered and ravaged, nay, cruelly

butchered their more virtuous neighbors--the sons of the most inveterate

traitors, whose names deservedly sounded in every bill of confiscation;

and the minors, sons of those who sheltered themselves under the shade

of the British King, and supported his armies, if not with arms, with

the resources of war, until the hour of danger was over--those, I say,

after the blood of thousands has been spilt in the establishment of our

government, can now come forward and sneer at the foolish patriots who

endured every hardship of a seven years' war, to secure to them the

freedom and property they had no hand in defending. Sir, did we fight

for this? Was it for this the soldier watched his numerous nights, and

braved the inclemency of the seasons? Will he submit, after having

gained his point at the expense of property and the loss of

constitution, to have those sentiments established? If he will, he has

fought to little purpose indeed.

Sir, I again contend, that when the revolution came on we were all alike

with respect to allegiances, and all under the same social tie. An

Englishman born did not conceive himself more liable to be condemned for

treason than an American, had the enemy succeeded; nor would there have

been any distinction in the laws on coming to a trial. But, sir, how

should this primary allegiance be known to belong to the less, or

American community, where the majority did not prevail. In Georgia, the

majority were opposed to American measures; agreeably to the gentleman's

reasoning, the minors must have been all on the British side; and yet

many of them, on arriving to years of discretion, behaved well and

valiantly with us. To corroborate this, sir, I will remark, that, for a

considerable period, we had no general or federal government, or form of

constitution, and yet were in arms. I would ask what state we were in

then? Neighbor was against neighbor, and brother against brother. But,

sir, the gentleman says the hardened minor will not return. Sir,

experience has proved the contrary. The Middle and Eastern States,

except Pennsylvania, New Jersey, and New York, never had the enemy long

with them; there was not the same trial of men, and they knew not the

audacity of those villains. After having received their equivalent for,

in many cases, feigned losses, from the British crown, they are daily

returning and pushing into office. It is necessary we should guard

against them. Britain, although humiliated, yet has a longing eye upon

this country; she has yet posts in it. Although it is improbable that so

many of these people will get into Congress as to form a corrupt

majority, yet they have ambition and resentment enough to attempt it. At

this moment, sir, in Georgia, are some of the most daring, bringing

ejectments for estates which their fathers had deservedly forfeited,

although themselves had imbrued their hands in the blood of their

fellow-citizens.

Now, to the present case: Highly as I regard the gentleman (Mr. SMITH)

as a valuable member, and esteem his abilities, I can only form my

opinion on the leave given him by the State to be absent. If that

principle is introduced into the resolution, I will vote in favor of Mr.

SMITH'S eligibility; but if not, I must decline voting.

Which he accordingly did when the question was put.

Mr. TUCKER hoped that the yeas and nays would be taken on this question,

not because he had any doubt in his own mind of Mr. SMITH'S right to a

seat, but because he had been solicited by Dr. Ramsay to have the yeas

and nays taken.

The yeas and nays were taken as follows:

YEAS.--Messrs. Baldwin, Benson, Boudinot, Cadwalader,

Carroll, Clymer, Coles, Contee, Fitzsimons, Floyd, Gilman,

Goodhue, Heister, Huntington, Lawrence, Lee, Leonard,

Livermore, Madison, Moore, Muhlenberg, Page, Van

Rensselaer, Seney, Schureman, Scott, Sinnickson, Smith, (of

Maryland,) Sturgis, Sylvester, Thatcher, Trumbull, Tucker,

Vining, White, and Wynkoop.

Jonathan Grout voted in the negative.

Adjourned until Monday.

THURSDAY, May 28.

_Western Lands._

The House, on motion of Mr. SCOTT, went into a Committee of the Whole on

the State of the Union, for the purpose of considering certain

resolutions he had prepared respecting the disposal of the land in the

Western Territory. Mr. TRUMBULL in the chair.

Mr. SCOTT presumed there was little need of argument to prove to the

Committee the necessity of taking speedy measures with respect to the

unsettled lands in the Western Territory. The dissolution of the Board

of Treasury, and the death of the late Geographer of the United States,

are adventitious circumstances, which tend to increase the necessity.

Gentlemen are acquainted with the number of sales which have been made

to some of the citizens of the United States; they consequently know

that the United States are under an obligation to complete the surveys

of those lands which they have made sale of. They know, also, that until

this is done, they cannot receive a farthing of the millions of dollars

due on those contracts; they will not only be unable to receive the

principal, but will be paying interest for the same. Besides this, there

are other considerations for putting the business on a new footing. The

mode hitherto pursued of selling lands has been very expensive to the

United States. Perhaps, on inquiry, we shall find, that the specie it

has cost us in getting the land surveyed and sales completed, would have

purchased as many certificates as we get for the sale of the land. The

lands are also proposed to be sold in too great quantities. It is very

difficult to form a company for the purchase of a million acres. It

ought to be sold in small quantities, to make the sales more certain and

numerous; and, consequently, increase the public income. On this

principle, it will be well to open a land office, and grant the soil in

such quantities as may suit the applications. By this means more may be

expected for the purchase, than when it is struck off, at a wholesale

price, by the million acres; and in this way the land office will be

conducted without expense, which will be fixed on the purchaser, so that

the whole money the lands may bring will come into the treasury without

deduction.

There are other considerations why a land office should be opened for

the sale of that territory in the way just mentioned. There are, at this

moment, a great number of people on the ground, who are willing to

acquire by purchase a right to the soil they are seated upon. Allured by

its fertility, the agreeableness of the climate, and the prospect of

future ease to themselves and families, they would not seek a change.

Kentucky, already full, at least there are no more valuable lands to be

got there with a clear title, can receive no more emigrants. They,

therefore, turn their wishful eyes upon the lands of the Union. They

hope to get them of Congress upon as good terms as they can procure them

of the speculators. What will these men think, who have placed

themselves on a vacant spot, anxiously waiting its disposition by the

Government, to find their pre-emption right engrossed by the purchaser

of a million of acres? Will they expose themselves to be preyed upon by

these men? They might submit to this, but they have other offers.

There are seven thousand souls waiting for lands; they will have them

here or elsewhere; but there is some danger, if they cannot be

accommodated within the boundaries of the United States, they will do

one of two things: either move into the Spanish territory, where they

are not altogether uninvited, and become an accession of power to a

foreign nation, forming to us a dangerous frontier; or they will take

this course, move on the United States territory, and take possession

without your leave. What then will be the case? They will not pay you

money. Will you then raise a force to drive them off? That has been

tried: troops were raised, and sent under General Harmer, to effect that

purpose. They burnt the cabins, broke down the fences, and tore up the

potato patches; but three hours after the troops were gone, these people

returned again, repaired the damage, and are now settled upon the lands

in open defiance of the authority of the Union. But, nevertheless, they

are willing to pay an equitable price for those lands; and if they may

be indulged with a pre-emption to the purchase, no men will be better

friends to the Government. They went on the ground with an intention of

purchasing, and are kept there by a hope that the Government will see

their interest, and dispose of the land upon reasonable terms. But if

you do not listen to their request, if you neglect or despise their

offers, and they prove too weak to resist the omnipotent arm of

Government, they will have recourse to a neighboring Power for

protection. Hopes of that protection are now held out to them; it is my

duty to inform you of the fact. They will be led to think their interest

is separate from yours on the Atlantic shores. It will take prudent

management to prevent the fatal effects of a commotion in that country.

One of the most unhappy things we could do, would be to refuse selling

those lands in less quantities than by the million of acres: it would

certainly be a cause of disgust, if not of separation. If the object

was to prevent the settlement of the country, it would be another thing;

but that cannot be accomplished, it is not in the power of any force on

earth to prevent the increase of the population now begun; it is

therefore much better that we should incline them to friendship, than

oblige them to become our enemies. The emigrants who reach the Western

country will not stop until they find a place where they can securely

seat themselves. Your lands first offer: their fertility and

agreeableness will tempt them to pitch there; but to secure them, they

must have a well-grounded hope that the lands they cultivate may become

their own. To encourage this, you must open that territory to them, and

let them have lands for pay. You must go further, you must open the land

office in that country, because it will be impossible for the indigent

persons to travel for an office-right. You can then establish a

government among them, and derive advantages from them which are now

totally lost. They wish for your government and laws, and will be

gratified with the indulgence; but they wish also to acquire property

under them; they wish for your lands, and what good reason can be

offered to warrant a denial? If they cannot get your land, they must go

further, and obtain it of foreigners, who are desirous of having them at

any rate, who will give them lands without pay.

These observations are sufficient, no doubt, to evince the necessity of

doing something with respect to the Western territory, and something

different from what has hitherto been done. In order that the Committee

may have a full view of my ideas, I will read the plan I have in my

hand, upon which a law may be founded.

He here read a previous resolution, to be followed by the plan, which

was to this effect:

_Resolved_, That it is the opinion of this committee, that

an act of Congress ought to pass for establishing and

regulating a land-office, for the sale of the vacant and

unappropriated land in the Western territory.

[Here, by way of separate resolutions, followed in detail

the constituent parts of this office, and the routine in

which the business should be conducted, directing the

expense of the office to be supported by the fees payable

before the warrants and patents were delivered.]

Mr. CLYMER did not believe the committee were prepared for a decision at

this time. He considered the subject to be as intricate and difficult as

it was interesting; and therefore hoped full time would be given for

investigation. Many persons had purchased large quantities of lands of

the late Congress, with a view to sell them out in small lots, to

accommodate the people who are inclined to settle upon them. If Congress

now open a land office for the sale of small quantities, it will no

doubt overcast the prospect of advantage which induced the former, and

may induce future purchasers to apply for large grants. These

observations, and others which would readily occur to every gentleman,

would satisfy the committee that they ought not to precipitate the

business. For this reason, he moved the rising of the committee.

Mr. MADISON had no objection to the rising of the committee, as the

means of obtaining information; but he thought the business deserving of

the earliest attention. The clear and full manner in which the gentleman

from Pennsylvania had opened the subject to the view of the committee,

left no doubt on his mind of the propriety of taking some early measures

to accomplish the business in the manner suggested by that gentleman.

The facts and intelligence mentioned were too important to be passed

lightly over. He should, for the present, agree to rise, but hoped the

subject would be resumed in the House.

The question was taken on the first resolution moved by Mr. SCOTT, and

passed in the affirmative; the others remaining on the table.

The committee then rose and reported progress.

FRIDAY, June 5.

_Admission of Rhode Island into the Union._

Mr. BENSON presented for consideration, the resolution which he

yesterday gave notice of his intention of introducing in relation to the

admission of Rhode Island into the Union, and moved that the House

immediately go into a Committee of the Whole on the state of the Union,

for the purpose of discussing his proposition.

The resolution is in the following words:

The Congress of the United States do resolve and declare it

to be their most earnest desire, that the Legislature of

the State of Rhode Island and Providence Plantations, do

recommend to the people of that State to choose delegates

to meet in convention and to whom the constitution of the

United States is to be submitted, conformably to the

unanimous resolution of the United States in Congress

assembled, of the 28th of September, 1787.

Mr. PAGE.--I think of Rhode Island as the worthy gentleman from New York

does; but, as a member of Congress, I doubt the propriety of this body

interfering in the business. If I put myself, for a moment, into the

situation of a citizen of a State that has refused to accede to the

constitution of the United States, I must admit that I should watch your

actions with a jealous eye; I should be apprehensive of undue influence,

if I were to see you throw your weight into the scale. But what occasion

is there for adopting such a resolution? Are gentlemen afraid to leave

them to their own unbiased judgment? For my part I am not: it will

demonstrate the goodness of the constitution, if it be adopted upon

mature consideration, without any aid but its own intrinsic value. As to

amendments, when we come to consider of them, I dare say they will be

such as to make the constitution more agreeable; but, for the present, I

think it improper to have any thing to do with the gentleman's motion;

I hope he may be prevailed upon to withdraw it; he has done his duty by

bringing it forward; but if it does not meet the approbation of the

House, it will be a useless waste of time to give it any further

discussion. The gentleman has shown sufficiently his attachment to the

Federal Government, by the earnestness he shows to have it adopted

throughout the United States. But, in addition to this, let him consider

where such measures may lead us. Because the Legislature of Rhode Island

have neglected or refused to submit the consideration of the

constitution to a convention, we are to recommend it, and express a most

earnest desire that they will comply. But suppose they decline doing

what you require, what is next to be done? I hope gentlemen will

hesitate before they go any further. I think we should be employed more

in the line of our duty, by attending to the interests of our

constituents, and completing the organization of a Government they

ordered, than to spend our time about business which is not within our

powers. Why should we interfere with the concerns of our sister States

who have not yet joined the new Government? I trust the gentleman will

see the impropriety of his motion, and agree to withdraw it.

Mr. SMITH, (of South Carolina.)--I think we ought to go into committee,

and hear what the gentleman has to say on the subject. Though I must

acknowledge I am at present against the adoption of the resolution he

has proposed; yet it is possible, when he has stated his reasons, and

pointed out the necessity of it, that I may alter my opinion; but I

wonder why the gentleman has omitted North Carolina.

Mr. SHERMAN.--I think Rhode Island stands in a different situation from

North Carolina. When this constitution was formed in the convention,

North Carolina was represented there; she, as well as the adopting

States, submitted that instrument to a convention of the people; but not

having adopted it, she has again called a convention, and is proceeding

to reconsider it as fast as convenient; so that such a request as is now

proposed would be unnecessary with respect to them. As Rhode Island did

not send members to the first convention, there was a delicacy in

transmitting the proceedings to them, and Congress could not, perhaps,

apply to them with the same propriety as to another. But all we are now

to consider, I believe, is, that we invite the State of Rhode Island to

join our confederacy; what will be the effect of such a measure we

cannot tell till we try it.

Mr. MADISON.--I believe, Mr. Speaker, there are cases in which it is

prudent to avoid coming to a decision at all, and cases where it is

desirable to evade debate; if there were not cases of this kind, it

would be unnecessary to guard our discussions with the previous

question.[28] My idea on the subject now before the House is, that it

would be improper in this body to expose themselves to have such a

proposition rejected by the Legislature of the State of Rhode Island. It

would likewise be improper to express a desire on an occasion where a

free agency ought to be employed, which would carry with it all the

force of a command. How far this is contemplated on the present

occasion, I cannot tell; but I heartily wish that as little may be said

about it as possible. I conceive this to be one of the cases to which

the previous question is applicable; and, if the gentleman means to call

the House to a direct decision on this motion, I shall step between, and

interpose the previous question.

Mr. AMES.--I am against the previous question being taken, because I

wish the House to consider the motion made by the gentleman from New

York; it is admitted to be a question of considerable importance; if it

is, it ought to be considered; otherwise, we are shutting the door on

information, and putting it out of our power to ascertain the propriety

or impropriety of the motion.

I should be glad to know if any gentleman contemplates the State of

Rhode Island dissevered from the Union; a maritime State, situated in

the most convenient manner for the purpose of smuggling, and defrauding

our revenue. Surely, a moment's reflection will induce the House to take

measures to secure this object. Do gentlemen imagine that State will

join the Union? If they do, what is the injury arising from the adoption

of the resolution intended to be submitted to the committee? Is there

any impropriety in desiring them to consider a question which they have

not yet decided? It has been suggested by an honorable gentleman, that

this desire will operate as a demand. If a wish of Congress can bring

them into the Union, why should we decline to express such a wish?

The previous question being insisted upon, was put--"Shall the main

question be now put?" and it was determined in the negative. Adjourned.

MONDAY, June 8.

MICHAEL JENIFER STONE, from Maryland, appeared, and took his seat.

TUESDAY, June 16.

_Department of Foreign Affairs._

The House then resolved itself into a Committee of the Whole on the bill

for establishing an executive department, to be denominated the

Department of Foreign Affairs. Mr. TRUMBULL in the chair.

The first clause, after recapitulating the title of the officer and his

duties, had these words: "To be removable from office by the President

of the United States."

Mr. WHITE.--The constitution gives the President the power of

nominating, and, by and with the advice and consent of the Senate,

appointing to office. As I conceive the power of appointing and

dismissing to be united in their natures, and a principle that never was

called in question in any Government, I am averse to that part of the

clause which subjects the Secretary of Foreign Affairs to be removed at

the will of the President. In the constitution, special provision is

made for the removal of the judges; that I acknowledge to be a deviation

from my principle; but as it is a constitutional provision, it is to be

admitted. In all cases not otherwise provided for in the constitution, I

take it, that the principle I have laid down is the governing one. Now

the constitution has associated the Senate with the President in

appointing the heads of departments. The Secretary of Foreign Affairs is

the head of a department; for the words of the law declare, that there

shall be a department established, at the head of which shall be an

officer to be so denominated. If, then, the Senate are associated with

the President in the appointment, they ought also to be associated in

the dismission from office. Upon the justness of this construction, I

take the liberty of reviving the motion made in the Committee of the

Whole, for striking out these words: "to be removable from office by the

President of the United States."

Mr. SMITH, (of South Carolina.)--The gentleman has anticipated me in his

motion; I am clearly in sentiment with him that the words ought to go

out. It is in the recollection of the committee, that when the subject

was last before us, this power was excepted to; and although the words

were then allowed to stand, it was generally understood that it should

be further debated. I then was opposed to giving this power to the

President, and am still of opinion that we ought not to make this

declaration, even if he has the power by the constitution.

I would premise that one of these two ideas is just: either that the

constitution has given the President the power of removal, and therefore

it is nugatory to make the declaration here; or it has not given the

power to him, and therefore it is improper to make an attempt to confer

it upon him. If it is not given to him by the constitution, but belongs

conjointly to the President and Senate, we have no right to deprive the

Senate of their constitutional prerogative; and it has been the opinion

of sensible men that the power was lodged in this manner. A publication

of no inconsiderable eminence in the class of political writings on the

constitution, has advanced this sentiment. The author, or authors, (for

I have understood it to be the production of two gentlemen of great

information,) of the work published under the signature of _Publius_,

has these words:

"It has been mentioned as one of the advantages to be expected from the

co-operation of the Senate in the business of appointments, that it

would contribute to the stability of the administration. The consent of

that body would be necessary to displace as well as appoint. A change of

the Chief Magistrate, therefore, would not occasion so violent or so

general a revolution in the officers of the Government, as might be

expected if he were the sole disposer of offices. Where a man in any

station has given satisfactory evidence of his fitness for it, a new

President would be restrained from attempting a change in favor of a

person more agreeable to him, by the apprehension that the

discountenance of the Senate might frustrate the attempt, and bring some

degree of discredit upon himself. Those who can best estimate the value

of a steady administration, will be most disposed to prize a provision

which connects the official existence of public men with the approbation

or disapprobation of that body, which, from the greater permanency of

its own composition, will, in all probability, be less subject to

inconstancy than any other member of the Government."

Here this author lays it down, that there can be no doubt of the power

of the Senate in the business of removal. Let this be as it may, I am

clear that the President alone has not the power. Examine the

constitution; the powers of the several branches of Government are there

defined; the President has particular powers assigned him; the Judiciary

have in like manner powers assigned them; but you will find no such

power as removing from office given to the President. I call upon

gentlemen to show me where it is said that the President shall remove

from office. I know they cannot do it. Now, I infer from this, that, as

the constitution has not given the President the power of removability,

it meant that he should not have that power; and this inference is

supported by that clause in the constitution which provides that all

civil officers of the United States shall be removed from office on

impeachment for, and on conviction of treason, bribery, or other high

crimes and misdemeanors. Here is a particular mode described for

removing; and if there is no other mode directed, I contend that the

constitution contemplated only this mode.

I imagine, sir, we are declaring a power in the President which may

hereafter be greatly abused; for we are not always to expect a Chief

Magistrate in whom such entire confidence can be placed as in the

present. Perhaps gentlemen are so much dazzled with the splendor of the

virtues of the present President, as not to be able to see into

futurity. The framers of the constitution did not confine their views to

the first person who was looked up to to fill the Presidential chair. If

they had, they might have omitted those checks and guards with which

the powers of the Executive are surrounded. They knew, from the course

of human events, that they could not expect to be so highly favored of

heaven as to have the blessing of his administration more than seven or

fourteen years; after which, they supposed a man might get into power,

who, it was possible, might misbehave. We ought to follow their example,

and contemplate this power in the hands of an ambitious man, who might

apply it to dangerous purposes. If we give this power to the President,

he may, from caprice, remove the most worthy men from office. His will

and pleasure will be the slight tenure by which an office is to be held,

and of consequence you render the officer the mere state-dependant, the

abject slave of a person who may be disposed to abuse the confidence his

fellow-citizens have placed in him.

Mr. HUNTINGTON.--I think the clause ought not to stand. It was well

observed that the constitution was silent respecting the removal,

otherwise than by impeachment. I would likewise add, that it mentions no

other cause of removal than treason, bribery, or other high crimes and

misdemeanors. It does not, I apprehend, extend to cases of infirmity or

incapacity. Indeed, it appears hard to me, that after an officer has

become old in an honorable service, he should be impeached for this

infirmity. The constitution, I think, must be the only rule to guide us

on this occasion; as it is silent with respect to the removal, Congress

ought to say nothing about it, because it implies that we have a right

to bestow it, and I believe this power is not to be found among the

enumerated powers delegated by the constitution to Congress.

Mr. SEDGWICK.--I wish the words to be struck out, because I conceive

them to be unnecessary in this place. I do conceive, Mr. Speaker, that

this officer will be the mere creature of the law; and that very little

need be said to prove to you that of necessity this ought to be the

case. I apprehend, likewise, that it requires but a small share of

abilities to point out certain causes for which a person ought to be

removed from office, without being guilty of treason, bribery, or

malfeasance; and the nature of things demands that it should be so.

Suppose, sir, a man becomes insane by the visitation of God, and is

likely to ruin our affairs, are the hands of Government to be confined

from warding off the evil? Suppose a person in office, not possessing

the talents he was judged to have at the time of the appointment, is the

error not to be corrected? Suppose he acquires vicious habits, an

incurable indolence, or total neglect of the duties of his office, which

forebode mischief to the public welfare, is there no way to arrest the

threatened danger? Suppose he becomes odious and unpopular by reason of

the measures which he pursues, (and this he may do without committing

any positive offence against the law,) must he preserve his office in

despite of the public will? Suppose him grasping at his own

aggrandizement, and the elevation of his connections, by every means

short of the treason defined by the constitution, hurrying your affairs

to the precipice of destruction, endangering your domestic tranquillity,

plundering you of the means of defence, by alienating the affections of

your allies, and promoting the spirit of discord; is there no way

suddenly to seize the worthless wretch, and hurl him from the pinnacle

of power? Must the tardy, tedious, desultory road, by way of

impeachment, be travelled to overtake the man who, barely confining

himself within the letter of the law, is employed in drawing off the

vital principle of the Government? Sir, the nature of things, the great

objects of society, the express objects of this constitution, require

that this thing should be otherwise. Well, sir, this is admitted by

gentlemen; but they say the Senate is to be united with the President in

the exercise of this power. I hope, sir, that is not the case; because

it would involve us in the most serious difficulty. Suppose a discovery

of any of those events which I have just enumerated were to take place

when the Senate is not in session, how is the remedy to be applied? This

is a serious consideration, and the evil could be avoided no other way

than by the Senate's sitting always. Surely no gentleman of this House

contemplates the necessity of incurring such an expense. I am sure it

will be very objectionable to our constituents; and yet this must be

done, or the public interest be endangered by keeping an unworthy

officer in place until that body shall be assembled from the extremes of

the Union. It has been said that there is a danger of this power being

abused if exercised by one man. Certainly the danger is as great with

respect to the Senate, who are assembled from various parts of the

continent, with different impressions and opinions. It appears to me

that such a body is more likely to misuse this power than the man whom

the united voice of America calls to the Presidential chair. As the

nature of the Government requires the power of removal, I think it is to

be exercised in this way by a hand capable of exerting itself with

effect, and, the power must be conferred upon the President by the

constitution, as the executive officer of the Government.

Mr. MADISON.--If the construction of the constitution is to be left to

its natural course with respect to the executive powers of this

Government, I own that the insertion of this sentiment in law may not be

of material importance, though, if it is nothing more than a mere

declaration of a clear grant made by the constitution, it can do no

harm; but if it relates to a doubtful part of the constitution, I

suppose an exposition of the constitution may come with as much

propriety from the Legislature, as any other department of the

Government. If the power naturally belongs to the Government, and the

constitution is undecided as to the body which is to exercise it, it is

likely that it is submitted to the discretion of the Legislature, and

the question will depend upon its own merits.

I am clearly of opinion with the gentleman from South Carolina, (Mr.

SMITH,) that we ought in this, and every other case, to adhere to the

constitution, so far as it will serve as a guide to us, and that we

ought not to be swayed in our decisions by the splendor of the character

of the present Chief Magistrate, but to consider it with respect to the

merit of men who, in the ordinary course of things, may be supposed to

fill the chair. I believe the power here declared is a high one, and, in

some respects, a dangerous one; but, in order to come to a right

decision on this point, we must consider both sides of the question: the

possible abuses which may spring from the single will of the First

Magistrate, and the abuse which may spring from the combined will of the

Executive and the Senatorial disqualification.

When we consider that the First Magistrate is to be appointed at present

by the suffrages of three millions of people, and in all human

probability in a few years' time by double that number, it is not to be

presumed that a vicious or bad character will be selected. If the

Government of any country on the face of the earth was ever effectually

guarded against the election of ambitious or designing characters to the

first office of the State, I think it may with truth be said to be the

case under the constitution of the United States. With all the

infirmities incident to a popular election, corrected by the particular

mode of conducting it, as directed under the present system, I think we

may fairly calculate that the instances will be very rare in which an

unworthy man will receive that mark of the public confidence which is

required to designate the President of the United States. Where the

people are disposed to give so great an elevation to one of their

fellow-citizens, I own that I am not afraid to place my confidence in

him, especially when I know he is impeachable for any crime or

misdemeanor before the Senate, at all times; and that, at all events, he

is impeachable before the community at large every four years, and

liable to be displaced if his conduct shall have given umbrage during

the time he has been in office. Under these circumstances, although the

trust is a high one, and in some degree, perhaps, a dangerous one, I am

not sure but it will be safer here than placed where some gentlemen

suppose it ought to be.

Mr. VINING.--I hoped, Mr. Chairman, after the discussion this subject

had received on a former occasion, that it would have been unnecessary

to re-examine it. The arguments against the clause are reiterated: but,

I trust, without a chance of success. They were fully answered before;

and I expect the impressions made at that time are not already effaced.

The House, as well as the Committee of the Whole, have determined that

those words shall be inserted in the bill; the special committee could

therefore do no less than place them where they are; a deference is due

to the decision of the House.

The House has determined to make a declaration of their construction of

the constitution. I am perfectly in sentiment with the majority on this

occasion; and contend, that if this power is not in the President, it is

not vested in any body whatever. It cannot be within the legislative

power of the Senate, because it is of an adverse nature; it cannot be

within the executive power of the Senate, because they possess none but

what is expressly granted by the constitution. If gentlemen will point

out where the constitution confers this power upon the Senate, I will

read my recantation, and subscribe to the justness of their doctrine.

I am not satisfied that removability shall be acquired only by

impeachment. Were the advocates of this doctrine aware of its

consequences, when they advanced it? The Senate has the sole power of

trying impeachments; the President is here out of the question. If no

officer can be constitutionally removed but by impeachment, it applies

to subordinate officers as well as heads of departments. For the

constitution only gives power to Congress to establish officers by law,

and vests the appointment in the President. If these officers are not

removable but by impeachment, what is to become of our affairs, when any

of the accidents occur which were enumerated by the gentleman from

Massachusetts (Mr. SEDGWICK)? Are we to take the circuitous route of

impeachment? The dilatory and inefficient process by that mode, will not

apply the remedy to the evil till it is too late to be of advantage.

Experience has fixed an eternal stigma upon the system of impeachment;

witness the case I mentioned, the other day, of Warren Hastings before

the British Lords; what delays and uncertainty with the forms of trial,

details of evidence, arguments of counsel, and deliberate decision! I

ask gentlemen, can there be a greater evil than this in any Government?

Why, then, will gentlemen advocate a doctrine so obnoxious to the

principles of the constitution, when a more favorable construction is at

hand?

Mr. WHITE.--Mention has been made of impeachments, as the only mode of

removing an officer. I will explain my ideas on this point, in order

that the committee may be masters of my particular objections to the

clause. I consider impeachments necessary to be employed in cases

respecting an officer who is appointed during good behavior. Thus the

judges can only be removed by impeachment. The President and Vice

President hold their offices for the terms mentioned in the

constitution, not liable to be removed from office in any other way.

These circumstances are a deviation from my general principle; but have

nevertheless a proper ground to be supported on. The electors who

appoint the President, cannot assemble to exercise the authority which

would naturally be in them. With respect to the judges, it is found

necessary for the proper and uncorrupt administration of justice, and

the security of freedom, to have them independent in their stations, so

that they be not removable at pleasure. To them, therefore, the doctrine

of impeachment is peculiarly applicable. It may properly be extended

further, in cases where the President is desirous of retaining an

officer who ought not to be retained. This House has the power of

controlling him, and may impeach the officer before the Senate. In

either of these three cases impeachments are necessary.

Mr. BOUDINOT.--This is a question, Mr. Speaker, that requires full

consideration, and ought only to be settled on the most candid

discussion. It certainly involves the right of the Senate to a very

important power. At present, I am so impressed with the importance of

the subject, that I dare not absolutely decide on any principle,

although I am firmly persuaded we ought to retain the clause in the

bill; and, so far as it has been examined, I agree that it is a

legislative construction of the constitution, necessary to be settled

for the direction of your officers. But if it is a deviation from the

constitution, or in the least degree an infringement upon the authority

of the other branch of the Legislature, I shall most decidedly be

against it. But I think it will appear, on a full consideration of this

business, that we can do no otherwise than agree to this construction,

in order to preserve to each department the full exercise of its powers,

and to give this House security for the proper conduct of the officers

who are to execute the laws.

Mr. SMITH, (of South Carolina.)--I have attended to the arguments of the

gentlemen who oppose the motion for striking out, and I apprehend that

their reasoning is not perfectly consistent. The construction of some

gentlemen is, that the power of removal is given to the President by the

constitution. Others are of opinion that the constitution is silent; and

therefore the House ought to give it. To oppose these adverse arguments,

I must return to my strong ground on which my opponents dare not

venture. I state again, that if the constitution has given the power, it

is unnecessary to give it here; or if it has not given it, we have no

right to confer it, because it is not within the enumerated powers

delegated to Congress.

Gentlemen have said that it is proper to give a legislative construction

of the constitution. I differ with them on this point. I think it an

infringement of the powers of the Judiciary. It is said, we ought not to

blend the legislative, executive, or judiciary powers, further than is

done by the constitution; and yet the advocates for preserving each

department pure and untouched by the others, call upon this House to

exercise the powers of the judges in expounding the constitution. What

authority has this House to explain the law? But if it has this

privilege, the Senate is also invested with it as part of the

Legislature; and, in exercising it on the present question, we shall be

likely to differ. If the constitution is silent, and gentlemen admit

this, it is possible the Senate may view it with a favorable eye to

their own right, and reject the bill on account of this clause. A great

deal of mischief has arisen in the several States, by the Legislatures

undertaking to decide constitutional questions. Sir, it is the duty of

the Legislature to make laws; your judges are to expound them.