MONDAY, October 31.
Several other members, to wit: from Vermont, NATHANIEL NILES and ISRAEL
SMITH; from Maryland, UPTON SHERIDINE; from North Carolina, WILLIAM
BARRY GROVE; and from South Carolina, ROBERT BARNWELL; appeared,
produced their credentials, and took their seats in the House.
TUESDAY, November 1.
ANTHONY WAYNE, member from Georgia, and JOSIAH PARKER, from Virginia,
took their seats this day.
THURSDAY, November 3.
Two other members, to wit, RICHARD BLAND LEE and JOHN PAGE, from
Virginia, appeared, produced their credentials, and took their seats in
the House.
FRIDAY, November 4.
Another member, to wit, EGBERT BENSON, from New York, appeared, produced
his credentials, and took his seat in the House.
MONDAY, November 7.
Several other members, to wit: from Pennsylvania, WILLIAM FINDLAY; from
North Carolina, JOHN BAPTIST ASHE; and from Georgia, ABRAHAM BALDWIN;
appeared, produced their credentials, and took their seats in the House.
TUESDAY, November 8.
Another member, to wit, ANDREW GREGG, from Pennsylvania, appeared,
produced his credentials, and took his seat in the House.
_John Torrey._
The House resolved itself into a Committee of the whole House on the
Report of the Secretary of War on the petition of John Torrey,
administrator of Major Joseph Torrey, deceased.
Mr. AMES objected to the motion for accepting the Report of the
Secretary of War. He said, it must be apparent that he was placed by
accident in a relation to the subject in debate, which he should not
have adopted of choice. With very little knowledge of the parties and
their connections, and the interests that would be involved by the
decision, he seemed to be considered as standing sponsor for the
petitioner. He might justify this active support of the petition, by
assigning motives which were common to other gentlemen; but as they have
continued silent, I will assign a reason for speaking, which is peculiar
to myself. Nothing excites a person to a more fervid defence of his
opinions, than the supposed discovery that they are misunderstood, and
the force of the reasons on which he had formed them unduly estimated.
Congress promised half-pay to the officers who should continue in
service _to the end of the war_. This was afterwards made a commutation
for half-pay. Major Torrey continued in service till September, 1783,
when he died. The question is, did he continue in service to the end of
the war? The provisional articles of peace were signed on the 30th
November, 1782; but they were to remain without force till terms of
peace should be agreed upon between Great Britain and France. This took
place on the 30th January, 1783, and the ratifications were exchanged on
the 3d February, 1783, at Paris. The provisional treaty between Great
Britain and America was then _a treaty of peace_, and according to the
words of that treaty was _concluded_. Accordingly, on the 11th April,
1783, Congress by a proclamation made known those facts, and the
stipulations made, in regard to the periods when hostilities should
cease, by the contracting parties to the treaty. Hostilities did cease,
and before the end of April, 1783, all America was in perfect peace. The
late hostile nations shook hands, our vessels sailed in safety, and by
sea and land reconciliation succeeded to hostility.
But did all this put an end to the war? The children in the street would
answer this question: they would say, it is peace when it is not war. Of
all facts, the most notorious seems to be the state of war; and it is
the fact that the war was at an end, (and not any after resolve of
Congress,) that the commutation of Major Torrey was made to hinge upon.
When the meaning of a bargain is disputed, it is usual to search out the
intention of the contracting parties when it was made. Supposing,
instead of interpreting a resolve of Congress, any twelve of this body
had to try a case between two private persons; suppose that a man had
given his note of hand for a sum to be paid at the _end of the war_.
Would twelve of this House, or would any jury in the country say that
the war continued longer than hostilities? In private life, a man would
think it touched his character to refuse paying his note in such case.
Surely a government ought to perform its promise with as much delicacy
and exactness. Congress did not promise the half-pay, and afterward the
commutation, on the condition that a man should serve till they should
think proper to say the war was at an end. He depended on the stubborn
_fact_ that it did end, which no resolution of Congress could change;
and not on the refining opinion when the officers might safely be
discharged--for that we see might be differently formed, according to
the different views of policy and safety at the time. An officer having
this promise of Congress, has a right to this commutation on the
cessation of hostilities, in pursuance of the treaty. If this is
disputed, the meaning of the words, "_the end of the war_," should be
decided as it was understood at the time of the promise. Will any one
believe that the 3d November, 1783, was the term, after the state of war
and all the treaties which put an end to it, had been long passed? If
any doubt still remains, writers on the law of nations should be
consulted. For the officer may justly claim an execution of the promise
according to law; that is the umpire between Government and the people.
On appealing to the law of nations, we find that war is defined to be
"the state in which a nation prosecutes its right by force." "Peace is
opposed to the state of war--an accommodation is proposed and conditions
agreed on, and thus peace puts an end to war." "When the powers at war
agree to lay down their arms, the agreement is the treaty of peace."
"The general and necessary effects of peace, are the reconciliation of
enemies and the cessation of hostilities; it restores the two nations to
their natural state." Would any jury in this country say, that the
matter of fact and the principles of law were not in favor of the
petition? Apply these maxims of law to the case. The provisional
articles of November, 1782, were of themselves nothing, it is true, but
they were to constitute the treaty of peace, whenever Great Britain and
France had agreed on the terms of peace. As these two powers did agree
on the 30th January, and ratified the terms on the 3d February, 1783,
_then_ the provisional articles, to use the very words of the preamble,
did _constitute the treaty of peace_; it was _then_ a _concluded_ thing;
and peace in fact took place in the several parts of the world on the
appointed days.
It has been said, that the preliminaries were no more than a suspension
of arms--that the state of war still continues, until a _definitive_
treaty. To this it is answered, that preliminaries bind the national
faith; if violated, the perjured faithless nation would kindle a new
war. By the law of nations there is not such a distinction as that which
is alleged, between preliminary and definitive treaties. Let the
authorities for such a distinction be produced by those who make it. But
they do not exist--a truce does not put an end to a war--a truce is,
however, a suspension of war for a specified term. At the end of this
term, the war begins again, of course, without any fresh declaration.
But a suspension of hostilities for an indefinite period, is not a
truce, but a peace; especially if it is added, that it is agreed upon by
the belligerent nations in consequence of a settlement of their
disputes, and if it happens in fact that the war is not revived. Those
who make so much of a definitive treaty, and so light of preliminaries,
should consider that, on their own system, the former is a kind of
defeasance which annuls the latter. But when the definitive treaty is
signed, the preliminaries, which before were liable to be annulled, now
become of force, and the treaty, now become indefeasible, takes its date
from the preliminaries. Though this mode of reasoning has not much
weight on my mind, it ought to have some with those who have set up the
distinction which it is adduced to overthrow.
These are the reasons on which I have formed my opinion that the war
ended in fact in April, 1783, when hostilities ceased by mutual
agreement of the powers at war. My opinion is supported by authority
much more reputable than any I can give to it. The law courts in this
country have decided it judicially; cases of captured vessels, and the
question of interest on British debts, have produced decisions in every
State of the Union, unless I am misinformed, that the war ended in March
or April, 1783. The courts in England, and in every country where the
war spread, on trials of property, have made similar decisions. Major
Torrey died in September, 1783; shall this body decide against the
settled rule of all the law courts?
It remains to remove some objections:
It is alleged, that Congress have by various resolves fixed the period
of the war, and have declared that the 3d November, 1783, is the term.
If they had declared that it should be computed from the end of the
world, it would not alter the truth of the fact. _After_ declarations
ought not to be received to change their own promises. But a
declaration, or a dozen of them, made for another purpose, and not to
declare the meaning of the contract, cannot on any principle be received
to interpret it. It is not necessary, however, to contend against those
resolves of Congress. They are irreconcilable with the former engagement
to Major Torrey. In undertaking to reconcile them, I feel that I impose
a task on myself, which is made heavy by the prepossessions of many of
my friends; I believe the minds of gentlemen are perfectly fair, and
well-disposed to doing the petitioner justice. But I hope I shall not be
thought to intend any offence, when I remark that certain ideas, such as
that this claim is cut off by resolves of Congress, and that on allowing
it, confusion would take place in the business of the public offices,
were started with the discussion, and they have remained so woven into
the texture of the debate, that I think it hard to unravel them. It was
soon manifested that there was a general disposition to vote against the
petition. This opportunity for debate seems to have been accorded as of
grace, rather than as a means of removing any existing doubts of their
own. Having adopted these opinions, this is rather a form of refusal
than a mode of inquiring; and it seems to have been chosen with every
circumstance of decency, and with all possible steadfastness of purpose.
Yet I will proceed to state, that the point whether the war was at an
end when hostilities ended in April, 1783, being already considered
fully, we are to look for other reasons than such as relate to the
commutation, to explain the resolves of Congress which continued the
service of the officers beyond the end of the war, and as late as
November, 1783. A mistake seems to have crept in here. It seems to be
supposed that the officers were engaged to serve to the end of the war,
just long enough to secure their commutation. But the commutation
depended on one thing--the term of their service on another. The former
was their right at the end of the war; but they were to remain in
service till dismissed, unless they should think fit sooner to resign.
They held their commissions during the pleasure of Congress. Though
when the war ended they had a right to the commutation, they had no
right to say their service was at an end. They did not choose to resign:
Congress, for wise reasons, did not choose to dismiss them. A foreign
army was still in New York. They were sent home on furlough, but drawing
pay, and liable to be called into the field. Congress, in their
resolves, did not say that it was not peace, but in effect that it was
unsafe to disarm. Gentlemen are not well agreed among themselves as to
the end of the war. Some fix it at the definitive treaty of September 3,
1783; others at November 3. Their conclusions agree as illy with their
principles; for if the definitive treaty put an end to the war, how can
the same gentlemen say that the war was kept alive, on the journals of
Congress, till November, 1783? Here, then, were Peace and War subsisting
quietly together during two months.
The fears of making confusion by opening a door to many applications,
seem to be groundless. A man must have died between the end of
hostilities and November, 1783, to place a claim on the like footing.
The living have had their commutations; they cannot come: and no other
officer died in that period, as far as I can learn. I have inquired, and
cannot find at the office of the Secretary of War any precedent which
militates with this claim, or any reason to suppose that any similar one
will be offered. The case is a new one; it stands alone, and probably
ever will, and it must be decided on its own merits. Believing the fact
to be indisputable that Major Torrey served to the end of the war,
confiding in the principles of the law of nations, and the settled
decisions of the Judicial Courts, I have endeavored to explain my ideas
with perspicuity, and to impress them with force. I have said more than
questions touching an individual will often be found to merit; but when
public principles are construed to the prejudice of private rights, the
debate cannot be treated too seriously.
Mr. BOUDINOT said, he differed in opinion from the gentleman in his
construction of the business. He did not coincide in the idea that the
decision of the present question should be on a strictly judicial
principle. The petition is founded on certain resolutions and laws of
Congress; and as there are certain established rules which have been
observed in settling with every other officer similarly circumstanced,
Congress cannot now with propriety break through those rules; to these
they ought to adhere, till by the decision of some judicial court it
shall appear that they are contrary to the rules of justice. [Here Mr.
AMES requested Mr. BOUDINOT to point out the rules to which he
referred.] Mr. B. referred to the report now under consideration, which
was founded on a resolution of Congress, that the time for which the
army was engaged should expire in November, 1783. This has been made a
rule in all the settlements with the officers of the army.
The terms of the contract, between the officers and the United States,
depended, he said, on the decision of the sovereign power; that was
authorized alone to determine when the war should cease. That power was
vested in the then existing Congress, who, although they entered into
provisional articles in November, 1783, did not, however, think proper
immediately to disband their armies or put an end to the war, as it was
yet uncertain whether those provisional articles would be ratified by
Great Britain, or a treaty of peace concluded between Great Britain and
France; a circumstance which was necessary before those articles could
be definitively binding. It was only when the definitive treaty was
made, that Congress determined the period of the war. The army, when
finally disbanded and paid up to that day, acknowledged, by accepting
their pay, that it was then only the war ended; and, as far as was in
their power, assented to the principle which he maintained, that the
provisional articles had not before put an end to the war. Suppose that,
on the arrival of the definitive treaty, Congress had not agreed to the
terms, would the war have then been considered as at an end? Would not
Congress have been in the same situation as before the signing of the
provisional articles? It was necessary that Congress should, by a
definitive act, determine when the war ceased. Congress had passed such
an act; and the House at present cannot with propriety enter into a
resolution to alter the period. The argument of inconvenience ought also
to have some weight with the House; for if any alteration were now to be
made in the law, it must have a retrospect to all the widows and
children of deceased officers, who have received half pay for years
past. Besides, many officers who have not hitherto considered themselves
as entitled to half pay, would, in consequence of such an alteration,
have a right to apply for it.
Mr. LAURANCE said, he doubted not the gentleman who supported the
petition was fully satisfied as to the justice of the claim which he
advocated with so much ardor; he begged leave to state his opinion,
however, on the subject, in which he should differ from that gentleman.
The contract with the officers of the late army was, that those should
be entitled to certain benefits who served to the end of the war. But
Major Torrey was not thus circumstanced, as he died previous to the
period when the war ceased, and left neither widow nor orphan to receive
the benefit of the provisions allowed by law; his case is not
contemplated by any existing resolution of Congress.
It is well known that hostilities ceased at the time of publishing the
provisional articles which formed the basis for the treaty of peace; but
can any man say that every soldier had a right on that event to demand a
discharge? Surely not. The provisional articles had the peace in
contemplation, but the army was not to be discharged till the articles
of the definitive treaty were ratified by the belligerent powers. The
army of the United States was, therefore, only furloughed, and Congress
retained the power of recalling them into service; and had the officers
and soldiers been recalled from their furloughs to take the field, it
would have been a continuance of the same war; but if the definitive
treaty had been signed, and hostilities had commenced the very next day,
it would have been a new war, and would have been prosecuted on entirely
new principles. The second article of the provisional treaty looks
forward to a _future_ period for a conclusion of the war; and he
inferred, that the definitive articles being ratified, and the
ratifications exchanged, alone constituted a termination of the war. Mr.
L. added some observations on the legal ideas of Mr. Ames, in which he
also differed from that gentleman; and concluded by expressing his
approbation of the Report of the Secretary of War.
Mr. AMES's remarks were further combated by Mr. WILLIAMSON, Mr. DAYTON,
Mr. HILLHOUSE, Mr. WADSWORTH, Mr. CLARK, and Mr. WHITE.
Mr. WAYNE was opposed to the report, and stated certain particulars to
show that the army was not furloughed by Congress because it was
apprehended there would be any further demand for their services, but
because it was inconvenient to give them an absolute discharge at that
period.
The motion for accepting the Secretary's Report was carried by a large
majority.
WEDNESDAY, November 9.
Two other members, to wit: from Maryland, WILLIAM VANS MURRAY; and from
South Carolina, THOMAS SUMTER; appeared, produced their credentials, and
took their seats in the House.
The Speaker laid before the House a letter from the Governor of
Maryland, enclosing a letter to him from WILLIAM PINKNEY, a member
returned to serve in this House for the said State, containing his
resignation of that appointment; also a return of JOHN FRANCIS MERCER,
elected a member to serve in this House, in the room of the said WILLIAM
PINKNEY: which were read, and ordered to be referred to the standing
Committee of Elections.
THURSDAY, November 10.
_The Census._
The House again resolved itself into a Committee of the whole House on
the Schedule of the Enumeration of the Inhabitants of the United States.
Mr. LAURANCE had previously moved, that until the next enumeration the
number of Representatives should be one for every thirty thousand
persons.
Mr. DAYTON moved to strike out "thirty," before "thousand." This
amendment was under consideration.
Mr. GERRY observed, that in all the decisions of the Legislature, we
ought to follow as far as possible the opinion of the great body of the
people. If this opinion should be found to be against the ratio of
thirty thousand, the amendment ought to be adopted; but if we refer to
the amendments, proposed by the Conventions to the constitution, we
shall find that five States are in favor of one Representative to every
thirty thousand persons, till the number should amount to two hundred.
None of the propositions now moved as amendments to the motion of the
gentleman from New York, amount to that number. Several others of the
Conventions were of opinion that the representation was too small to
secure the liberties of this country. This Government, said he, is a
Government of representation; the people may control their
Representatives, but their influence is small in respect to the Senate
and the Executive, and still less over the officers of Government. On
what then do the people depend for checking encroachments, or preventing
abuses? On their Representatives? If these should be too few, or if they
should fail them, they never can redress their grievances without having
recourse to violence. If the number is small, a majority may be the more
easily corrupted. On the other hand, too large a number will be attended
with difficulties; a medium then is most eligible. An adequate number is
absolutely necessary; and to show that one to thirty thousand would not
produce more than an adequate number, he referred to the ratio of
representation in England and France, in which there was a greater
proportion of Representatives than in the Legislature of the United
States.
He then adverted to the objection arising from the additional expense;
but, he observed, after Congress shall have passed a few more of the
most important acts, it is not probable that the public business will in
future require that the sessions should be for more than four months
annually; this would reduce the expense greatly, in the first instance;
and, agreeably to a calculation, an addition of forty-seven members to
the present number, would make the aggregate expense but about
one-eighteenth part more than at present, supposing the sessions to be
four months long. But he considered the objection on account of the
expense as merely speculative.
Although Congress is not positively bound by the constitution to give
one member for every thirty thousand inhabitants, yet he would ask,
whether the citizens of the United States did not expect that this ratio
would be adopted? and whether they would not consider it as an abuse of
power, if Congress, instead of one to thirty thousand, should settle the
representation at one to forty thousand? Eight States have already
adopted the first article of the proposed amendments to the
constitution: and if the House should either settle the number of the
Representative body, as it now stands, or reduce it, or establish it at
one hundred, perhaps they might, before the end of the session, be
obliged to repeal their act--as they would be bound by the amendment,
as soon as it is ratified by a sufficient number of States. If gentlemen
thought it probable that the proposed amendment would be ratified by the
several States, they ought already to consider it as a rule for their
conduct, and be restrained by it, from giving less than one
Representative for thirty thousand inhabitants. After the representation
amounts to one hundred, Congress will, no doubt, have a right to fix it
there, until it is increased by the ratio of one to forty thousand: but
that is a power which, he presumed, Congress will not exercise; but that
they then will establish some ratio, by which the increase of
representation shall keep pace with the increase of population, until
the House consists of two hundred members.
Mr. BOUDINOT was convinced of the propriety of striking out the word
"thirty." The House ought to consider what would be an adequate number
for doing the business of the Union; and that number ought not to be
exceeded, except to answer some very valuable purpose. Business would
proceed with difficulty, if the representation was so numerous as it
would become by the ratio of one to thirty thousand. The present
representation of the United States is in a ratio very different from
that of one to thirty thousand; and yet he thought it fully adequate.
From a rough calculation, the ratio of thirty thousand would produce one
hundred and thirteen members; thirty-five thousand would give
ninety-seven; and forty thousand would produce eighty-one. If the number
once settled was to rest there, he would not be over anxious to oppose
the increase; but if gentlemen would take into view the increase
consequent on the next enumeration, they would find that the number will
by far exceed the due bounds.
He thought the people of the United States would be duly represented,
and to their entire satisfaction, if the ratio was set higher than
thirty thousand; nor could he imagine that such an exact proportion,
between the Representatives and the represented, was at all requisite to
secure their liberties, or to do the necessary business of Government.
This indeed might be the case, if the power vested in Congress was
proportionate to their number; but, since the House would possess the
same powers, whether it consisted of a greater or a smaller number, he
thought the people equally secure in either case. The ratio of
thirty-five thousand, which would produce ninety-seven members, would,
in his opinion, be a very proper one. If, however, the people should
think otherwise, they had it in their power to correct the mistake, by
ratifying the proposed amendment. Their not having as yet ratified it,
was to him an argument that they thought the ratio too low; or, at
least, that they considered the question as doubtful. Some of the
States, he observed, have postponed the consideration of the amendment;
and eight only have as yet agreed to it. On the whole, the House might
safely adopt the ratio of one to thirty-five thousand; for that the
increasing population of the United States would ever supply a
representation sufficiently numerous to answer every good purpose.
Mr. CLARK observed, that his objection was not merely on account of the
pay of the members, but an increase in the representation would bring an
additional expense on the people, by increasing the number of public
officers; as almost every man would wish to see his friend provided for.
The liberties of America could be in no danger from the present ratio of
representation. The doors of the House are open, and the people know
what their Representatives are doing.
Mr. STEELE was in favor of the motion for striking out _thirty_. In
discussing the important subject before the committee, he observed that
there were two inquiries to be attended to: What is the proper number to
constitute a Representative body for the United States, and what ratio
will leave the fewest fractions in the respective States? One member to
thirty thousand, he conceived, would give too numerous a representation.
According to the present number of inhabitants, it will almost double
the present number; it will divide and diminish the responsibility, make
the House too unwieldy, retard public business, and increase the public
expenses unnecessarily. An adequate representation, he thought, would be
comprised within a much smaller number.
Gentlemen have called our attention to the House of Commons of Great
Britain, and the National Assembly of France; but God forbid that we
should draw our precedents from such examples as may be cited from
European representation.
He was opposed to thirty thousand as the ratio: it would, in fractions,
throughout the United States, leave above three hundred and sixty-nine
thousand citizens unrepresented. Thirty-five thousand he thought the
most eligible number, as it would leave the fewest fractions.
Mr. LAURANCE agreed that an adequate number was the great object to be
attended to; but he contended that the original motion would give this
number more completely than a larger ratio: and it ought to be
considered, that, before the next enumeration, it will not be probably
more than one to fifty thousand. As to the increase of expense, he
observed that the great objects being accomplished, the future sessions
will be short; besides which, the compensation of the members may be
diminished. But he considered a necessary increase in the expense to be
fully counterbalanced by affording greater security to the liberties of
the people. The firmness of a government depends on a strong Executive;
but this Executive should be founded on a broad bottom; and the broader
the basis, the more secure is the public freedom under a vigorous
Executive.
The existence of the Union may depend on the fullness of the
representation. The inequality in the proportional increase of the
number of inhabitants in different States, ought also to be taken into
consideration; for it is very probable that in a short time, while some
of the smaller States had a Representative for every thirty thousand,
others would not have one to forty thousand. He was governed by general
principles, and not by any calculations of fractional numbers: the
constitution contemplates the ratio he had proposed, and therefore he
hoped the motion for striking out would not obtain.
Mr. GOODHUE observed, that the situation and circumstances of the
Government of the United States are so different from those of France or
Great Britain, that no parallel could be drawn respecting them. Nor is
there an absolute similarity between this Government and those of the
State Governments. The objects of legislation which come under the
cognizance of Congress, are but few compared with those which engage the
British House of Commons and the National Assembly of France. A much
larger representation for them, and in our State Legislatures, is
therefore more proper, than is necessary for us in the General
Government. He doubted the opinion that a large representation was less
liable to corruption than a small one: some facts appear to confirm the
former sentiment. He did not consider the expense as a material
objection, if an increase of the number be necessary to doing more ample
justice, or for the greater security of the liberties of the people;
but, as he thought this was by no means the case, he was in favor of
striking out "thirty," in order to insert a larger number.
Mr. BARNWELL agreed with the gentleman last up. He should vote for
striking out "thirty," in order to substitute the largest number that
had been mentioned. Mr. B. entered into an abstract and philosophical
discussion of the principle of representation in Government. The leading
sentiment was, that a large proportion of Representatives is not
necessary to obtain the best objects of legislation, in expressing the
will of the people, or to secure the liberties of the constituent body.
The great point, he observed, was, to combine the greatest portion of
honesty with a due degree of activity. That number which would comprise
a due proportion of these, would be competent to all the purposes of
legislation, whether the number for which it legislates is ten thousand,
or five hundred thousand. On this principle, he was decidedly against a
large number, and in favor of a small one. Adverting to the British
House of Commons and the National Assembly of France, with respect to
the former, he said, their corruption is, in a great degree, owing to
their numbers: as to the latter, he observed, that the National Assembly
had acted, in his opinion, politically and wisely. They set out with a
large representation, in conformity to the sentiments of the people at
the moment; but, on experience, finding the number too great, they have
reduced it from twelve hundred to about two hundred and fifty. He
believed that the general sense of the people was against a large
representation in Congress; the inconveniences experienced from numerous
bodies in the State Legislatures have led several of the States to
lessen the number. He instanced Georgia, South Carolina, and
Pennsylvania.
Mr. BALDWIN was opposed to the motion. One Representative for thirty
thousand appeared to him by no means a great representation. The opinion
that, of late, had been so often advanced from the press, and in public
discussion, for reducing the Representative branch in Government to a
small number, he held to be full of dangerous error. He was sensible
that the terms great and small were so merely relative in their
signification, that it was difficult precisely to understand each other
in the use of them. Perhaps they may most properly, both of them, be
considered as extremes. No doubt representation, which of late seems to
be used as the character of Republican Government, is a great
improvement upon Democracy, or legislation by the whole body of the
people. He could conceive that a representation might be so large as to
partake of the evils of assembling the whole body of the people; but it
was a very improbable and not a dangerous extreme: the other extreme was
full of danger. These observations acquire much force, when applied
particularly to the Governments of this country: enfeeble the
representative part of them, and you sap the very principles of life.
They stand on a different basis from the Governments which have gone
before them, and may justly be said to be new experiments in government;
time, as yet, has scarcely given room to judge of the probable issue;
but this we may pronounce with much certainty--Let the principles of
representation languish, and they have no chance of success.
It had not been found practicable to ground representation in the
Federal Constitution upon any other principle than that of numbers; but
extent of territory is unquestionably one of the natural principles on
which it rests, and should if possible be regarded. One for thirty-four
or thirty-five thousand may be deemed a proper representation in the
Kingdom of France, or of Great Britain. The four millions which compose
the United States, compactly settled where there was great sameness in
the country, and pretty equally distant from a common centre, would be
properly represented by a smaller number than in their present sparse
settlement. But still further: the settlement of the United States is a
fillet stretched along the sea-coast for seventeen hundred miles,
comprehending as great a variety of climate and interests as one of the
other quarters of the globe. It is difficult to conceive of a situation
which calls for a greater extension of the principle of representation.
It has been said, that one for thirty thousand will make too large and
unwieldy a body. He was sensible that was a point that did not admit of
being determined by any conclusive reasoning; it was a mere matter of
opinion; sound judgment only is to be used, time and experience will
come on and confirm or correct the opinion. In such a case, it is wise
to inquire how this has been judged of by others who have had a
Representative body. In France, one thousand two hundred was not thought
too great a representation in forming their National Assembly; and the
number established by their new constitution for their stated
Legislature was not two hundred and fifty, as the member last up had
stated, but, if he had not been misinformed by the publications in this
country, it was nearly seven hundred and fifty.
In the Kingdom of Great Britain, five hundred is not thought too great a
representation: and can one hundred and thirteen, which is the greatest
number contended for, be considered in this country as a huge and
impracticable mass of representation?
It had ever appeared to him to be among the strongest marks of our youth
and inexperience, that we grow wise too suddenly. He was afraid this
instantaneous wisdom which sprung up so at once, and set at nought, or
removed to the extreme of absurdity and folly, the deliberate and tried
opinions of the most profound and enlightened among men, in
circumstances peculiarly favorable to honest decision, will itself be
left by time on that extreme.
The Federal Government, it must be admitted, is in fact pretty highly
seasoned with prerogative; practice has already evinced the necessity,
in many instances, of increasing it, by devolving much of the
Legislative power upon the Executive Department, arising from the
difficulty of making particular provisions and details in our laws, and
accommodating them to the various interests of so extensive a country.
The other branch of the Legislature has many traits of a perpetual--at
least of a very solid constituent part of the Government. He did not
mention these as imperfections in the Government; they are perfections,
if the other parts can be in due proportion: but it is surely a sound
reason against taking positive measures at this time to diminish the
Representative branch. For his own part, he was not well satisfied as to
the intention. If there is any reason to apprehend that the Government
will depart from the point on which it was first placed, he could
scarcely suppose that any one could be honestly alarmed with the fear
that the departure would be towards Democracy. He concluded, by
expressing his hopes that the representation to the next Congress would
be fixed at one for thirty thousand, as it had hitherto been, and that
the motion for striking out would not prevail.
FRIDAY, November 11.
JOHN W. KITTERA, from Pennsylvania, appeared, produced his credentials,
and took his seat in the House to-day.
MONDAY, November 14.
A petition of James Jackson, of the State of Georgia, was presented to
the House and read, complaining of the undue election and return of
ANTHONY WAYNE, one of the members returned to serve in this House for
the said State.
_Ratio of Representation._
The House again resolved itself into a Committee of the whole House on
the Schedule of the Enumeration of the Inhabitants of the United States.
Mr. FINDLAY declared himself to be in favor of one Representative for
every thirty thousand persons. The opinion of the people should be the
guide of the committee; that opinion, he conceived, to be in favor of
the ratio he had mentioned.
The representation ought as nearly as possible to express not only the
will, but to participate in the wishes and interests of the people. A
large representation embraces these interests more fully, and is more
competent to giving and receiving information. The objects of
legislation are such as come home to the doors, to the feelings of every
man; the Government ought therefore to secure the confidence of the
people by a large representation. The expense he considered as trifling
compared to the benefits--and the people expect and are willing to pay
for being well governed, and having their liberties secured. An
increased representation is an additional security against corruption.
As to delays occasioned by a numerous body, he observed that the
Representatives were chosen to deliberate and to mature every subject
before decision; he instanced the advantages derived from the numerous
representations in France and in Ireland; the former had framed a
constitution in two years for twenty-six millions of citizens, and
provided for securing the liberties of their country--and the latter had
proved a successful barrier against the encroachments of the arbitrary
power of England. He concluded, by asserting that the voice of the
people was in favor of the amendment proposed to the constitution, which
would give one Representative to every thirty thousand persons.
Mr. GILES said this subject had struck him in two points of view:
whether Congress are not precluded from exercising any discretion on the
subject? and whether, if they are not, it is expedient for them to
exercise this discretion at this time? The ratio of representation is a
constitutional, and not a Legislative act. He referred to the
constitution, in which it is said that there shall be one Representative
to every State; and, secondly, that until the enumeration, the number
should be as therein appointed to each State. After the enumeration, the
number is mentioned below which it shall not be placed; but there is a
negative power to increase the ratio, and from this negative power, a
positive discretionary power is inferred. But, he observed that Congress
had precluded itself from a right to exercise this discretionary power,
by sending out to the several State Legislatures an amendment on this
very subject. This amendment he considered in a serious point of view;
and had this idea been attended to at the commencement of the
discussion, he conceived that it would have prevented the opinion from
being brought forward whether it was expedient that any change in the
ratio of the representation should take place. The idea of one to thirty
thousand, he considered as fully settled in the minds of the people; and
a change on the part of the Government would indicate a changeable
disposition, and a mutability of counsels, which is but another name for
weakness.
Mr. G. then took a view of the objects of legislation to the State
Assemblies, and of those of the General Government. In the former, above
one thousand persons are employed, though their attention is confined to
their internal police. Those of the General Government, on the other
hand, are on the great objects of the whole finance of the Union, a sum
of more than eighty millions of dollars, &c., &c.
It is said that we shall want abilities, but I should be sorry if a
representation of ten times the present number of this House should
comprise the abilities of a single State.
He assigned different causes than numbers, for the corruption in the
British House of Commons; among these were the frequent mortgages of the
funds, and the immense appropriations at the disposal of the Executive,
the mode of their elections, &c. A large number is not so easily
corrupted as a small body.
An inequality of circumstances, he then observed, produces revolutions
in Government, from Democracy to Aristocracy and Monarchy. Great wealth
produces a desire of distinctions, rank, and titles. The revolutions in
property in this country have created a prodigious inequality of
circumstances. Government has contributed to this inequality; the Bank
of the United States is a most important machine in promoting the
objects of this moneyed interest. This bank will be the most powerful
engine to corrupt this House. Some of the members are directors of this
institution; and it will only be by increasing the representation that
an adequate barrier can be opposed to this moneyed interest. He next
adverted to certain ideas which he said had been disseminated through
the United States; and here he took occasion to observe, that the
Legislature ought to express some public disapprobation of these
opinions. The strong Executive of this Government ought to be balanced
by a full representation in this House. He hoped the motion to strike
out thirty thousand would not obtain.
Mr. BOUDINOT closed the debate of this day by a few remarks, reinforcing
his former observations in favor of an increased ratio.
TUESDAY, November 15.
_Ratio of Representation._
The House again resolved itself into a committee of the whole House on
the Schedule of the Enumeration of the Inhabitants of the United States.
Mr. PAGE addressed the Chair as follows:
Mr. CHAIRMAN: I can no longer refrain from expressing my sentiments
respecting the question before the committee; not only because I wish if
possible to remove the error which I think several members, for whom I
have the highest respect, have fallen into, but because I feel myself
more interested in the question than I ever was in any one I have had to
decide on.
Sir, it gave me pain to find those worthy members calculating and coldly
applying the rules of arithmetic to a subject beyond the power of
numbers to express the degree of its importance to their
fellow-citizens. I was distressed, sir, to find that, in their honest
zeal for securing order, despatch of business, and dignity in
respectability of members in the General Legislature, they used
arguments which have been applied in other countries to the
establishment of insolent aristocracies--in some, tyrannical
despotisms--and in others, kings; those countries which were most on
their guard with a semblance of a free Government.
Sir, the errors I wish to correct are these. They think that because it
is _proposed_, by a _proposed_ amendment to the constitution, to
authorize them to interfere in the business of ascertaining and fixing
the ratio of representation to the population of the States, that
Congress ought, without any hesitation, to enter on that business; but I
humbly conceive that Congress, as this is a delicate question in which
their own weight and importance must unite with the weight and
substantial interest of their constituents, ought to listen to the
suggestions of delicacy, and leave its discussion to a disinterested
convention of the States. I say it appears to me no small error to quit
the plain path of legislation, marked out for us by the constitution,
needlessly to wander into the field of political speculation respecting
its supposed defects.
Let me, therefore, advise to leave the restriction of the numbers of
members of this House to the people, or to some future Congress, which
can see more plainly than can now be descried, the evils of a too
numerous representation. By so doing, we shall avoid, if not an improper
measure, at least a rash step--at least we shall stand clear of a charge
of indelicacy, and deprive our enemies of the triumph they expected in
the completion of their predictions, that Congress would never propose
any amendments to the constitution but such as would be subservient to
their own views and aggrandizement. Let us not give the enemies of our
new Government cause to exult, and its friends to sigh and mourn. Let us
not give our friends occasion to repeat what many have said, that so
many of our citizens have been led away by theoretical writers on
government, as to render it problematical whether the American States
are not at this time as much indebted to the National Assembly for its
remains of Republican principles, as France was to Congress, in 1776,
for their first ideas of that liberty which they now enjoy. Let us not,
in this moment of general exultation of the friends to the rights of
man, take a step which may damp their joy, and lead them to fear that
Americans, who were foremost in the glorious career of liberty, have
stopped short.
But, not to take up the precious time of this House with relations of
facts to show what was and is the opinion of our fellow-citizens on this
interesting subject, I will only state a few arguments which have weight
with me as being in themselves evident truths, viz: Our constitution
being framed by the people, and introduced to us in their name, and
Congress being the creatures of their will, spoken into existence by the
word of their power, for Congress to lessen _their_ weight, to diminish
their importance, and to exclude them from as full a share in their own
Government as can be consistent with the nature of it, and indeed from
that share which they claim, must be impolitic and dangerous.
But, granting that the people wished not a greater share in the General
Government than is proposed by the amendment, as it is impossible, in a
country like the United States, that one man can be sufficiently
informed of the opinions, wishes, and real interests of thirty-five
thousand of his fellow-citizens, and therefore laws might be enacted
contrary to the opinions, wishes, and interests of the people, in which
they might nevertheless acquiesce, sacrificing their interests for the
sake of peace and quiet to the wills of their Representatives, one
thirty-five-thousandth part of their own number, what friend to his
country would wish to see such a dangerous influence on the one hand,
and such a blind submission on the other? How long could an enlightened
people remain in such a state of insensibility and torpor? And what
might not be the consequence of their awakening from their lethargy? If
not an expensive revolution, an expensive repeal of laws. And here I
will remark, that the smallest number of Legislators, and they, too,
well selected for their wisdom and respectability, if unacquainted with
their constituents, might pass well-framed laws, founded on the wisdom
of other countries, and yet find them disagreeable to their
constituents, and be under a necessity of repealing them; but this could
not be the case, if the people had in that Legislature a sufficient
number of Representatives on whose fidelity, attachment, and
disinterestedness they could rely. This, sir, is a truth worthy of our
attention--an ignorance of which, or inattention thereto, I suspect has
been the occasion of much political evil in the world. Happily for
France, the people had such a number of Representatives in the National
Assembly as could engage their feeling, inform their judgment, attach
their interest, and establish their confidence in their fidelity and
disinterestedness; had that number been much smaller, it is probable
France would never have been delivered from oppression by their
exertions.
I know, sir, that many friends of our constitution thought that the
convention did not pay a sufficient attention to the interests of their
constituents, when they restrained them from having more than one
Representative for every thirty thousand citizens. I know that there is
a report that the people are indebted to their President, even for this
share in their Government; and I believe, sir, if this report be true,
that whatever has been so justly said of him, as compared to Fabius, to
Hannibal, to Alexander, may be forgotten, when this instance of his
wisdom, disinterestedness, and attachment to the interests of his
fellow-citizens, will be more and more known and applauded, and be for
ever engraved on the hearts of their posterity. Shall we, then, Mr.
Chairman, the direct Representatives of the people, be less attentive to
their interest, and that too respecting their share in the deliberations
of their own House of Representatives, than the President of their
convention was? I trust not.
I will not pretend to say, however, whether in an Assembly where
attempts are frequently made to carry into effect the projects of
monarchical or aristocratical juntos, the virtuous struggles of
patriotic members may not produce mob-like disorders; but in an Assembly
like Congress, where I should suppose no such question can be agitated;
none which may not be discussed with temper and decency, such disorder
need not be apprehended. I should suppose there would be less clanger of
animosities and disorderly debates in Congress, amongst twelve hundred
members, than in the British Parliament, if it consisted but of one
hundred. Where we have all but one and the same great object in view,
the happiness of our country, (not the interests of a particular body of
men born with privileges insulting to the feelings and rights of
freemen, nor the whims of an individual, born to trample on his
fellow-creatures,) we can have no cause to be dissatisfied with one
another.
Surely, sir, unless these gentlemen suppose the members of Congress void
of sense, or of every idea of decency and propriety, they cannot suppose
that even five hundred members would not be easily restrained within the
bounds of order.
Mr. CLARK said, he did not rise to trouble the House with a lengthy
discourse, for he had always believed that long speeches answer no
valuable purpose. He meant only to offer a few remarks on what had been
said in opposition to his former observations, and he hoped that,
although the gentlemen contend for the ratio of 30,000 as the only basis
whereon to found the liberties of the people, he should not be
stigmatized with the name of an aristocrat for voting in favor of a
large ratio. Hitherto he had not borne that character, and he could not
suppose himself yet infected, unless he had caught the disorder since he
became a member of the present House. Much has been said about the
influence of the bank, and that bank directors are members of the House
of Representatives. The bank (said he) is public property, and therefore
he could not see the force of the gentleman's arguments respecting the
dangerous influence of that institution, unless it was that he was
displeased at the distribution of the shares, so much of the stock being
held at New York and to the eastward, and so little at Conococheague. In
the same predicament he viewed the other objections respecting the
influence of speculators; for he did not know that any members of the
House were speculators, neither could he see any danger from bribery.
In reply to Mr. FINDLAY'S observation, that more wisdom would be brought
into the House by increasing the ratio, he asked whether this would not
also bring in more folly? For the probability is, that the ratio of both
wisdom and folly will increase with the increase of numbers, and
likewise of honesty and dishonesty; and with respect to the smallness of
the district, or that it was safer for a small number to send a member
than a greater, he was of a different opinion, as he believed that if
ever the practice of bribery should come into play in America, it would
be easier for a Representative to purchase a small district than a large
one. If ever the liberties of the people are endangered, it will not be
by the smallness of the representation, but by the corruption of
electors and elections. This is the door which Congress should guard in
the strictest manner, and that will secure the people against corruption
in the House.
A gentleman from Georgia has observed, that the disposition of a great
many millions of dollars has been in the hands of a quorum of this
House, of whom it requires only seventeen to form a majority. On this
Mr. C. observed, that the old Congress, which was composed of a much
smaller number, were intrusted with the disposal of larger sums,
although there were sometimes only two members from the largest State,
Virginia, and no complaints were heard of their conduct.
But there is an argument which ought to have weight in the present
question. The Senate, although a much smaller body than this House, are
fully competent to judge of our proceedings, and of the safety of the
country. Indeed, (said Mr. C.,) it appears very evident to me that we
are not in want of a larger number in the House of Representatives to
debate any question, if it be considered how much has already been said
on the subject now before us.
Mr. VINING expressed much surprise that the subject, which to him
appeared perfectly definable, should have occasioned the debate to
travel so widely from the line marked out by the constitution. The
pendulum seems to vibrate between the numbers 81, 96, and 113; and
should that pendulum rest on any one of them in preference to the
others, he could not suppose that it would affect the liberties of
America. Why, therefore, all this extraneous argument about a point of
so easy decision? We are sent here to administer the Government, the
first principles of which are already fixed, so that neither branch can
encroach on the other. The Senate, the House of Representatives, the
President, have each defined powers; and whilst those remain, I shall
always believe the liberties of America are invulnerable.
Under this impression, Mr. Chairman, I shall vote for striking out
30,000, in order to accommodate the question to a medium. But I shall do
this on different principles from some other gentlemen; notwithstanding,
I at the same time confess that the ratification of the first amendment
to the constitution ought to govern us in deciding this question. The
spirit of the amendment appears to me clearly to imply that we should
not suffer the number of Representatives to exceed one for 30,000. I am
here, not as a person who shall exercise discretionary opinions, but
judge by the letter of the constitution. And in this case we may
increase the number, but we cannot make it less after the enumeration.
In the mean time, until that enumeration is complete, the representation
remains as it has been hitherto, which I believe may be about one member
to every 40,000 or 41,000.
If we go upon theory only, I would enlarge the representation to its
greatest extent, and hand down the principle to futurity, in letters of
gold, that a very great representation--that Democracy is the very best
Government that can possibly be devised, provided it were practicable to
give it stability. Next to a government as free as theory could extend,
we have the freest in the world--a Government of representation, which
will increase with the population of the country, and the ten new States
will always preserve an equilibrium; but if you increase it to an
extreme, you may render it tumultuous, although it may be safe.
I cannot, however, see the propriety of comparing this to the Government
of Great Britain, although that is called a Government of
Representation, consisting of two Houses of Parliament, one of which is
elective, the Lords are hereditary, and the King can do no wrong; and it
has hitherto been, I believe, the next best Government, after our own,
in the world. And yet we know with how much reluctance Ireland obtained
a participation of the trade and commerce of Great Britain; although a
FLOOD bellowed forth with the voice of liberty like a Demosthenes, still
nothing could induce the British Ministry to give way, until the
_volunteers_ effected it. And have we not the volunteers, sir, in this
country to protect our rights? Yes, sir, the American volunteers are
perfectly competent to this service.
I am under no apprehensions from the stockholders of the bank, or the
speculators in the funds; for it is their interest to have a wise and
good representation. The people who are employed in the more simple path
of agriculture, removed at a great distance, are not more interested in
the security of the Government than the more informed stockholder. As an
example of the discernment of the great commercial people of London and
Bristol, I need only mention their choice of a FOX and a BURKE, for
until a late day Mr. Burke was the champion of the people and the friend
of liberty.
If our Senate should take any unwarrantable stride towards aristocracy,
have we not the power to check them? No President can very well attempt
it at any time hereafter; and we are perfectly secure in the present
time from all suspicion of corruption.
Mr. HILLHOUSE said he had ever been a friend to a Republican form of
Government, and God forbid, that he should ever give his vote for any
measure that should endanger the liberties of his country. He was in
favor of an energetic government, as that alone can secure the blessings
of liberty. As to the dread of corruption in this House, which some
gentlemen appeared to entertain, he thought there was no foundation for
such an apprehension; at least as the idea refers to one or two hundred
Representatives--two hundred he contended, were as easily corrupted as
one. But the corruption contemplated was a mere matter of opinion; no
facts, he presumed, existed in this country to justify a positive
assertion; and as to foreign countries, it seems to be conceded that a
larger number than any that has been mentioned is susceptible of undue
influence. He then adverted to the restrictions on the President of the
United States, and the Senate, in respect to the means of corrupting the
Legislature. The constitution has also made provision to secure the
independence of the members, &c. He then urged some difficulties which
would be occasioned by a small ratio. He observed that the population of
some of the States is nearly stationary: if a small ratio is now
established, the consequence will be, when it is augmented, that the
representation of those States must be diminished. This would be a
measure that would be greatly disliked. With respect to the proposed
amendment, he thought it was entirely out of the question, till it was
ratified by three-fourths of the States. A very numerous representation
would tend to weaken, if not destroy the State Governments, and, in the
issue, would destroy the General Government. For, said he, they mutually
depend on each other for support.
Mr. KITCHELL was in favor of a numerous representation. He thought the
amendment proposed to the constitution ought to be the guide to the
House on this occasion. He did not draw his ideas of what should
constitute a proper representation, from the examples cited from foreign
countries; nor was he actuated by an apprehension of corruption, as more
applicable to a small number than to a large one; but when he considered
the various objects, views, denominations, professions, callings and
interests of the citizens of the United States, he was fully convinced
that a large representation was necessary to embrace the wishes and
answer the expectations of the people. He should, therefore, vote
against the motion for striking out thirty thousand.
Mr. GERRY took a general survey of the arguments against the proposed
ratio of one to thirty thousand. In noticing the objection from the
instability of the State Legislatures, he said it was not owing to their
numbers, but to the mode in which they are elected. Were the Senates and
Executives of the several States chosen as those of the General
Government, there would have been as much stability and consistency in
their transactions, as in those of the Government of the Union. A
gentleman had said that the proposed amendments to the constitution had
been adopted with reluctance by some of the States which had accepted
them. He called on the gentleman to produce his authorities for this
assertion. A relative proportion between the members of the House and
the Senate had been suggested; this idea had no foundation in the
constitution. And he further observed, that the constitution has so
completely guarded and secured the rights and independence of the
Senate, that he could not conceive of the apprehensions of gentlemen,
who appear to think that an increase of the members of this House will
overwhelm that branch of the Legislature. In all events, the privileges
of that body will remain the same. The States, it is said, have reduced
their Representative Assemblies. This, so far from being an argument
against the proposed ratio, was directly in favor of it. The diminution
of the State Legislatures has been occasioned by the idea which the
people entertain of the increasing importance of the General Government.
The objects of legislation to both Governments are nearly similar; they
relate to those important concerns which interest the feelings of every
citizen of the United States; all the difference lies in the magnitude
of their respective spheres of action. Hence, it must evidently be the
wish and expectation of the people, that their interests in every point
of view, should be fully and adequately represented in this House.
The resolution being again read, in the following words:
"_Resolved_, That the number of Representatives shall,
until the next enumeration, be one for thirty thousand."
The question was taken thereupon and agreed to by the House; yeas 35,
nays 23, as follows:
YEAS.--Abraham Baldwin, Egbert Benson, John Brown, William Findlay,
Thomas Fitzsimons, Elbridge Gerry, William B. Giles, James Gordon,
Andrew Gregg, Samuel Griffin, Daniel Heister, Daniel Huger, Israel
Jacobs, Aaron Kitchell, John W. Kittera, John Laurance, Amasa Learned,
Richard Bland Lee, James Madison, Andrew Moore, Frederick Augustus
Muhlenberg, William Vans Murray, John Page, Josiah Parker, Joshua Seney,
Upton Sheridine, Thomas Sumter, Peter Sylvester, Thomas Tredwell,
Thomas Tudor Tucker, Abraham Venable, Jeremiah Wadsworth, Anthony Wayne,
Alexander White, and Francis Willis.
NAYS.--Fisher Ames, John Baptist Ashe, Robert Barnwell, Elias Boudinot,
Shearjashub Bourne, Benjamin Bourne, Abraham Clark, Nicholas Gilman,
Benjamin Goodhue, William Barry Grove, James Hillhouse, Samuel
Livermore, Nathaniel Macon, Nathaniel Niles, Theodore Sedgwick, Jeremiah
Smith, Israel Smith, William Smith, John Steele, Jonathan Sturges,
George Thatcher, John Vining, and Artemas Ward.
_Ordered_, That a bill or bills be brought in pursuant to the said
resolution; and that Mr. PAGE, Mr. MURRAY, and Mr. MACON do prepare and
bring in the same.
TUESDAY, November 22.
A memorial of the committee of the counties of Washington, Westmoreland,
Fayette, and Alleghany, in the State of Pennsylvania, was presented to
the House and read, stating their objections to an act, passed at the
last session, imposing a duty on spirits distilled within the United
States, and praying that the same may be repealed. Referred to the
Secretary of the Treasury for his information.
_Representative from Maryland._
The House resolved itself into a Committee of the whole House on the
report of the standing Committee of Elections, to whom was referred the
Letter from the Executive of the State of Maryland, containing the
resignation of WILLIAM PINKNEY, a member returned to serve in this House
for the said State; and also a certificate of the election of JOHN
FRANCIS MERCER, in the room of the said WILLIAM PINKNEY.
The law of the State of Maryland regulating elections being called for,
was produced and read; by which it appeared that the Governor and
Council of that State were authorized to fill up vacancies in the
representation of that State in Congress.
Some objections having been offered against accepting the report,
Mr. SENEY observed, that the case appeared to him to be so plain that he
was surprised to find gentlemen objecting to an acceptation of the
report of the committee. He then stated the whole process of the
business, in the resignation of Mr. PINKNEY and the election of Mr.
MERCER, in which the law of the State had been strictly adhered to. He
concluded by saying, that two cases in point had already occurred in the
State of Connecticut, and no difficulty respecting them had taken place
in the House.
Mr. GILES said, that he was a member of the select committee which had
made the report; and from an accurate attention to all the circumstances
of the case, he was led to think the report a very improper one. From
recurring to the constitution, he was of opinion that a resignation did
not constitute a vacancy. The constitution speaks only of vacancies in
general, and does not contemplate one as resulting from a resignation.
Adverting to the British House of Commons, he observed that in that body
there could be no resignation. This is an established principle. The
people having once chosen their representatives, their power ceases, and
consequently the body to which the resignation ought to be made no
longer exists. From the experience of the British Government in this
respect, he argued against a deviation from this rule. He showed from
the constitution, that the Executives of the States who are empowered to
fill vacancies, are not at all authorized to declare the existence of
such vacancies; for, if they are to judge in the case, the whole power
is invested in them of determining the whole business of vacancies--an
idea that materially and essentially affects the privileges of the
members of the House. He remarked that, even by the law of Maryland, the
requisite steps had not been pursued by the Executive of that State. He
concluded by saying that, if the principles he had advanced were just,
he hoped the report would not be accepted.
Mr. SMITH (S. C.) had had his doubts on the report; but on more mature
consideration he was convinced that on account of the inconvenience
which would result from rejecting it, and from other considerations, it
was proper to adopt it, but not without a full discussion. He then
stated some particulars to show that the vacancy which had occurred on
this occasion could not properly be called a resignation. Mr. PINKNEY
had never taken his seat, nor the requisite oath. He said that there was
no analogy between the Parliament of Great Britain and this House; the
mode of issuing the writs originally, and of filling up vacancies, is
essentially different. No part of the constitution prohibits a member
from resigning, and for convenience it ought to be concluded that he may
resign. The public interest may suffer extremely in cases of sickness or
embarrassments, which may prevent a member from attending. This argument
from the body's not existing to whom the resignation ought to be made,
will apply to the President of the United States, whose resignation is
expressly mentioned in the constitution. The objection urged from the
Executives of the States judging of vacancies, he conceived had no great
force, for Congress would finally judge in every case of election. It is
uncertain how the practice of the British Parliament originated.
_Blackstone_ says nothing of resignations. When a member wants to resign
in that Legislature, he gets appointed to some fictitious office which
disqualifies him from sitting in the House. He thought it best to
establish some precedent, rather than oblige members who may wish to
resign to have recourse to some familiar method, by accepting of some
appointment in the State which is incompatible with a seat.
Mr. MURRAY said he was in favor of accepting the report, both on account
of propriety and conveniency. Vacancies may happen from various
causes--by resignation, by death, or by expulsion--the Executive of the
State is the proper judge in the first case. He stated certain
differences between a resignation after a person has taken his seat, and
a resignation before that event. In the former case Congress will of
course give notice to the Executive of the State; in the latter, the
Executive alone can take cognizance of the resignation. He stated the
extreme inconveniency which would result from the ideas of the gentleman
from Virginia, as it would respect the State of Georgia. He then stated
several particulars to show that Mr. PINKNEY was not a member of the
House agreeably to the constitution, and therefore the House cannot
proceed with him as one. He said that we ought to be willing to derive
information from the experience of every country; but he conceived that
no precedents could be drawn that would apply in the present case from a
country which had none, to one which had a constitution that so clearly
defined and guarded the rights of the citizens. The custom which had
been mentioned as obtaining in that country, arose from a wish to
prevent a frequency of elections. From what had been offered by the
gentleman from South Carolina, and the ideas he had suggested, he hoped
the committee would be induced to accept the report.
Mr. WILLIAMSON said, that it appeared to him that the constitution
contemplates that a member may resign. He read the clause, which says
that no member of the Legislature shall accept of an office made _during
the time_ for which he was chosen--from hence he inferred that
resignations were clearly contemplated.
Mr. GERRY said that he had heard nothing to show that Mr. PINKNEY had
ever accepted of his appointment, and therefore it ought to have been
expressed that he had declined; but, granting he had resigned after
accepting his appointment, he asserted that nothing had been offered to
prove that resignations might not take place in one House as well as in
the other; and the constitution plainly expresses that a Senator may
resign. The House of Commons originated with the Kings, who formed that
body to control the Lords; and hence arose the prohibition against
resignations, as they would weaken the body, and the expense of a new
election would fall on the King. With respect to the Executive declaring
improper vacancies, he observed that Congress was invested with full
power to control the Executives of the States in respect to such
declarations.
Mr. SENEY observed upon a distinction made by Mr. GILES between a
resignation on the part of a Senator and a Member of the House, he
supposed a resignation in either would equally vacate a seat, and that
no difference did really exist.
Mr. SEDGWICK observed that, if a power of adjudication was vested in the
Executives of the States to determine on a vacancy in cases of
resignation, it would involve this consequence, that a power of judging
of vacancies in all possible cases would be the necessary result. He
thought the proposition involved the most serious effects with respect
to the privileges and independency of this House.
This subject was further discussed the next day, and ended in an
acceptation of the report of the committee, which was in favor of Mr.
MERCER's election.
MONDAY, December 5.
The House again resolved itself into a Committee of the whole House on
the bill making appropriations for the support of Government, for the
year one thousand seven hundred and ninety-two; and, after some time
spent therein,
_Ordered_, That the said bill, with amendments, be recommitted to Mr.
LAURANCE, Mr. BALDWIN, and Mr. ASHE.
The Speaker laid before the House a letter from the Secretary of the
Treasury, accompanying his report on the subject of manufactures, made
pursuant to an order of the House of the fifteenth of January, one
thousand seven hundred and ninety; which was read, and ordered to lie on
the table.
The Speaker laid before the House a letter from the Treasury of the
United States, accompanying his account of receipts and expenditures of
the public moneys between the first of July, and the thirtieth of
September, one thousand seven hundred and ninety-one; which were read
and ordered to lie on the table.
Mr. BENSON laid on the table a resolution for the appointment of a
committee to join a committee of the Senate, to consider and report the
most eligible manner of carrying into effect a former resolution of
Congress respecting the erection of an Equestrian Statue, in honor of
General WASHINGTON.
_Appropriation Bill._
The House then, pursuant to the order of the day, resolved itself into a
Committee of the Whole, and resumed the consideration of the
appropriation bill, Mr. MUHLENBERG in the chair.
In proceeding through the bill, the several items were separately
considered and agreed to. Some occasional remarks were made; but no
material debate took place. One amendment was proposed, by which the
bill is made to express the several purposes for which the moneys are
appropriated, instead of appropriating sums in gross, with a reference
to the Secretary's estimate, for particulars.
The committee having reported the bill and the amendment, the House
adopted the same, and recommitted the bill to the select committee, who
had originally framed it, with instructions to new-model it pursuant to
the sense of the House.
Mr. GERRY presented a resolution in lieu of one which he laid on the
table on Friday last, making it the duty of the Secretary of the
Treasury to report to the House, on the third Monday of every session,
an account of the receipts and expenditures of the public money
appropriated during the preceding session, so far as he shall then have
it in his power to state particulars; and if he be unable to give an
accurate statement of the whole, at the time appointed, he is to
complete it as soon afterwards as may be.
TUESDAY, December 6.
_Resolved_, That Mr. BENSON, Mr. GERRY, and Mr. SMITH, (of South
Carolina,) be appointed a committee on the part of this House, jointly,
with such committee as shall be appointed on the part of the Senate, to
consider and report to Congress the most eligible manner for carrying
into effect the resolution of the United States in Congress assembled,
of the seventh of August, 1783, directing that an Equestrian Statue of
General WASHINGTON should be erected.
MONDAY, December 12.
The following Message was received from the President of the United
States.
_Gentlemen of the Senate, and of the House of
Representatives:_
It is with great concern that I communicate to you the
information received from Major General St. Clair, of the
misfortune which has befallen the troops under his command.
Although the national loss is considerable, according to
the scale of the event, yet it may be repaired without
great difficulty, excepting as to the brave men who have
fallen on the occasion, and who are a subject of public as
well as private regret.
A farther communication will shortly be made of all such
matters as shall be necessary to enable the Legislature to
judge of the future measures which it may be proper to
pursue.