The Message and papers therein referred to were read.
_Ordered_, That the act and three ordinances, mentioned in the Message,
be referred to the committee appointed 21st of January last, to whom
were referred the laws passed in the territory north-west of the Ohio,
to consider and report thereon to the Senate.
_Ordered_, That the other papers referred to in the Message lie for
consideration.
The Senate proceeded to the third reading of the bill, sent from the
House of Representatives for concurrence, entitled "An act providing for
the relief of such of the inhabitants of Saint Domingo, resident within
the United States, as may be found in want of support." Whereupon,
_Resolved_, That this bill pass as amended.
MONDAY, February 10.
The VICE PRESIDENT laid before the Senate a letter from the Secretary of
the Department of the Treasury, in reference to the orders of Senate of
the 20th January last, for a return of sundry statements from that
department; which letter was read.
Mr. BRADLEY reported from the committee to whom was referred the
petition of Conrad Laub and others, respecting the appointment of Mr.
GALLATIN to be a Senator of the United States; and the report was read.
_Ordered_, That Wednesday next be assigned to take this report into
consideration, and that, in the mean time, it be printed for the use of
the Senate.
On motion, that the Senate adopt the following resolution:
"_Resolved_, That the doors of the Senate be opened, and
continue open, during the discussion upon the contested
election of ALBERT GALLATIN:"
_Ordered_, That this motion lie on the table until to-morrow.
TUESDAY, February 11.
Agreeably to the order of the day, the Senate took into consideration
the motion made yesterday that the doors of the Senate be opened during
the discussion of the contested election of Mr. GALLATIN. Whereupon,
_Resolved_, That the doors of the Senate be opened, and continue open,
during the discussion upon the contested election of ALBERT GALLATIN.
Mr. BRADLEY reported from the committee to whom was referred the act and
three ordinances mentioned in the Message from the PRESIDENT OF THE
UNITED STATES of the 7th instant, enacted and ordained by the Governor
and judges of the territory south of the river Ohio, "that Congress do
not disapprove the same," and the report was agreed to.
THURSDAY, February 13.
Mr. BURR, from the committee to whom was referred the Message from the
PRESIDENT OF THE UNITED STATES, of the 30th of December last, reported a
bill authorizing and directing the settlement of the accounts of Major
General LAFAYETTE; which was read the first time, and ordered to a
second reading.
FRIDAY, February 14.
The bill authorizing and directing the settlement of the accounts of
Major General LAFAYETTE was read the second time, and, after debate, it
was ordered to lie for consideration and inquiry.
MONDAY, February 17.
The petition of Michael Schmyser, agent for Conrad Laub and others,
petitioners against the election of ALBERT GALLATIN to be a Senator of
the United States, was presented and read, praying to be heard by
counsel.
_Ordered_, That the prayer of the petition be granted.
The consideration of the report of the committee on the petition of
Conrad Laub and others, respecting the election of Mr. GALLATIN to be a
Senator of the United States, was resumed, and after progress, it was
ordered that the consideration thereof be postponed until Wednesday
next.
WEDNESDAY, February 19.
JAMES GUNN, from Georgia, took his seat in the Senate.
THURSDAY, February 20.
The Senate resumed the consideration of the motion made yesterday, to
amend the motion then reconsidered, respecting the opening the doors of
the Senate Chamber whilst sitting in a Legislative capacity.
On motion to commit the motion for amendment, it passed in the negative.
On motion, that the amendment be agreed to, it passed in the
affirmative--yeas 18, nays 9, as follows:
YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards,
Ellsworth, Foster, Gunn, Hawkins, Jackson, King, Langdon,
Livermore, Martin, Monroe, Potts, Taylor, and Vining.
NAYS.--Messrs. Bradford, Cabot, Frelinghuysen, Gallatin,
Izard, Mitchell, Morris, Rutherford, and Strong.
On motion to adopt the resolution, amended as follows:
"_Resolved_, That, after the end of the present session of
Congress, and so soon as suitable galleries shall be
provided for the Senate Chamber, the said galleries shall
be permitted to be opened every morning, so long as the
Senate shall be engaged in their Legislative capacity,
unless in such cases as may, in the opinion of the Senate,
require secrecy, after which the said galleries shall be
closed:"
It passed in the affirmative--yeas 19, nays 8, as follows:
YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards,
Ellsworth, Foster, Gallatin, Gunn, Hawkins, Jackson, King,
Langdon, Livermore, Martin, Monroe, Potts, Taylor, and
Vining.
NAYS.--Messrs. Bradford, Cabot, Frelinghuysen, Izard,
Mitchell, Morris, Rutherford, and Strong.
_Contested Election._
Agreeably to the order of the day, the Senate resumed the consideration
of the report of the committee on the petition of Conrad Laub, and
others, respecting the election of Mr. GALLATIN to be a Senator of the
United States.
The report of the committee states the evidence, and concludes with an
opinion, that to controvert the allegations set forth in the petition
against Mr. G., it lays with him to prove his citizenship.
Accordingly, Mr. G. presented a written statement of facts which the
PRESIDENT of the Senate read. It contained a narrative of several
transactions from the time of Mr. G.'s arrival in the province of Maine,
or Massachusetts, about thirteen years ago. Of his having contributed by
money and his own services as a volunteer, in the cause of the
revolution. Of his having taken oaths of allegiance and purchased lands
in that State, and also in the State of Virginia. In the back parts of
the last-mentioned State, he had formed an interesting settlement, and
had been extremely useful in bringing settlers from Europe. The dates of
those transactions and times of his arrival in Pennsylvania, and of
being sent to the State Convention, are also recited, up to the time of
his being chosen one of their Representatives in the Senate of the
United States.
After the PRESIDENT had done reading the statement of facts, Mr. G.
addressed the Senate, by observing, that he felt himself rather in an
awkward predicament, not knowing whether the counsel for the prosecutors
or himself were the proper person to speak the first, as this
preliminary was not yet laid down by the Senate, neither had he provided
any counsel. He should have supposed himself in the situation of
defendant, were it not that the weight of proving the affirmative in
regard to citizenship had been laid on him, under which predicament it
might perhaps be necessary for him to begin, and after the counsel for
the petitioners had spoken, that he should then be allowed to close the
arguments.
Mr. LIVERMORE was of opinion, that the sitting member should begin to
debate, as the _onus probandi_ lay with him.
The counsel for the petitioners, Mr. LEWIS, rose. He was attended by Mr.
Schmyser, one of the members of the Senate of Pennsylvania, who, we
understand, manages the prosecution on the part of the petitioners. Mr.
L. hoped he would be permitted to say a few words in the early stage of
the business, in regard to the manner of conducting it. He recapitulated
sundry offices and posts of honor that had been conferred on him, from
which he humbly presumed he had gathered much experience, and
particularly in cases of contested elections. He would, therefore, beg
leave of the honorable Senate, to offer an observation before they
should determine on the mode of conducting the trial. When the question
for postponement, which was debated the other day, was before them, the
sitting member did then consider himself as defendant, and for an hour
had fought phantoms of his own imagination, but now he has changed his
ground, and desires to have the privileges which belong to the
petitioners only, namely, the right of opening the prosecution, and
afterwards concluding the arguments.
Mr. GALLATIN submitted to the decision of the Senate, and said he did
not wish to contend for mere matters of form.
Mr. MARTIN (from N. Carolina) thought it immaterial who began or
concluded, if in the end the Senate should be enabled to arrive at a
just degree of information.
Mr. JACKSON (from Georgia) made some observations on the manner of
conducting the business. He thought it would be incumbent on the counsel
for the petitioners to prove that Mr. GALLATIN was not a citizen, &c.
Mr. KING (from New York) and some other gentleman of the Senate, said a
few more words on the motion; it was agreed that the sitting member
should begin.
Mr. GALLATIN accordingly rose and recapitulated the facts stated in the
written paper which he had presented to the PRESIDENT, commenting on
each of them as he proceeded. He proved that he had been an inhabitant
of the United States for thirteen years, and was one before the peace of
1783, and before the Confederation. He quoted the laws previous thereto
respecting aliens, and also the British statutes, and he maintained that
they were all done away by the Revolution. He conceived himself a
citizen in common with the other citizens of the United States, from the
time of his first qualifying after his arrival and attachment to the
country. He concluded by saying, he would reserve the remainder of his
defence until after he should hear the counsel on behalf of the
petitioners.
Mr. Lewis commenced his speech by observing, that he appeared there on
behalf of Conrad Laub, and other respectable men, who complained of the
unconstitutionality of admitting Mr. GALLATIN to a seat in the Senate.
He was glad to find, by the gentleman's expressions, that the ground of
debate had been narrowed into so small a compass, and he would therefore
take him up from the argument where he had left off speaking, that of
his being a citizen in common of the United States, from the time of his
qualifying in Massachusetts or Virginia. But in Virginia two oaths are
required, and they must be taken in a court, not before a magistrate, to
entitle a man to citizenship. He must also be possessed of a certain
quantity of property and be a resident for two years. It appears Mr. G.
did not remain in Virginia more than two months. (Here Mr. Lewis read
the law of Virginia of the 20th October, 1783.) On this law Mr. L.
argued that Mr. G. had not gone through the necessary qualifications to
entitle him to citizenship there; and he observed, that he admired the
gentleman's candor in not insisting on it here. In this State he had
certainly not qualified himself agreeably to the law. Under these
circumstances, Mr. L. for his part could never admit of the gentleman's
right to citizenship so far back as to entitle him to the suffrage of a
vote for a seat in the Senate, &c.
The mischievous consequences of permitting such innovations, he
represented in strong terms; and he called to the recollection of the
Senate, the conduct of ancient and modern governments on this question.
One of the ancient republics made it death for an alien to intermeddle
in their politics. The sentiments of antiquity, and those of men in
modern days, proved the justice of these conclusions.
With regard to the arguments of the gentleman respecting his being
entitled to be a citizen of the Union, or any individual State of it,
because he had qualified himself to be citizen of one of them, Mr. L.
said, was a mere bubble, for surely the gentleman was not one of the
mass of citizens at the accomplishment of independence.
The doctrine of the old law, which the gentleman says was done away by
the Revolution, in respect to aliens, may have been so with regard to
the British King; it was still, however, virtually in force against the
gentleman. But supposing it to be done away, how do the constitutions of
the different States stand on this head? Is it not implied by all of
them, that certain oaths, residence, and property, make the requisites
to form citizenship? In Massachusetts a foreigner is not a citizen,
without he complies with those terms. [Here he quoted p. 70 of the small
volume of the Laws of Massachusetts. He also cited the act in favor of
John Jarvis and others; also, p. 104 of the same book, and p. 191 and
192.] From these he maintained, that no such wild idea was ever
contemplated by either the law of Massachusetts or Virginia, as to admit
foreigners or persons from other States to citizenship, immediately on
their entrance within their limits.
The situation of the sitting member, with respect to the constitution
and laws of Pennsylvania, he had little doubt was similar to what he had
mentioned in regard to the other States, although he would not assert it
as a fact. [He read the 42d section, and also in p. 43 of the Law of
Pennsylvania, 13th March, 1789, a proviso which contains some
precautions requiring records to be kept by the master of the rolls of
the persons admitted to citizenship.] The same principle pervades all
the States as well as it does the Constitution of the United States. The
absurdity of applying it in any other sense, was severely pictured by
Mr. L., and to admit the idea advanced by the sitting member, was as
inadmissible as it was novel. In support of what he wished to impress on
the minds of the Senate, Mr. L. quoted the 1st vol. of the Journals of
Congress in 1774 and 1775, pp. 28 and 29. He then recurred to
_Blackstone_, vol. I, pp. 63, 64, and 69; also 73 and 79.
It was not his intention to quote the Parliamentary Laws of England in
support of any thing, but such parts of their Common Law as could be got
over--that Common Law of England which was imported by our ancestors,
and handed down to them by the people, not the Parliament. The people
had made the Common Law, from time to time. The Saxons, Normans, &c,
were all concerned in making and improving it, until it had finally
reached that degree of perfection in which it was given to us by our
ancestors, and it was founded in wisdom and justice.
Mr. L. next quoted, first _Blackstone_, 402, which was one of the
British laws that had never been admitted in this country, and which, he
hoped, never would, viz: that wherein the distinction is drawn between
the Commoner and the Peer, an oath being required of the Commoner, upon
all occasions, and no more than "_upon my honor_" from a Peer, except in
giving evidence in civil or criminal trials.
Mr. L. concluded, by saying that the difficulties which stood between
Mr. GALLATIN and his seat, were insurmountable and could not be removed
without showing a law of Massachusetts, Virginia, &c., repealing those
laws in regard to the qualification of citizens, which he had mentioned,
but which repeal he was certain did not exist. He therefore stated, that
to insist upon the gentleman's right to a seat, was both novel and
absurd. These were his opinions, which he had given in a perfectly
extempore way, not having been allowed time nor expecting to meet the
subject on the new ground which it had this day taken in the Senate.
Mr. GALLATIN said, he would pledge himself to the Senate, to prove that
the grounds of his arguments and his construction of the Confederation
and laws of the States, were neither novel nor absurd, except in Mr.
L.'s construction of them, but had been admitted in many instances.
However, as the Common Law of England was now introduced by Mr. L.,
which was new ground to him, and as the hour of adjournment was nearly
approaching, he would beg leave to make his reply to-morrow.
On motion, the further consideration of this subject was postponed until
to-morrow.
FRIDAY, February 21.
_Contested Election._
Agreeably to the order of the day the Senate resumed the consideration
of the report of the committee on the petition of Conrad Laub, and
others, respecting the election of Mr. GALLATIN to be a Senator of the
United States.
Mr. GALLATIN commenced his defence by laying down the principles on
which he intended to argue. His was a very serious situation for a
person to be placed in, who had been so long in America, and who had
mingled with the inhabitants in the common cause, that he should
afterwards be called before so solemn a tribunal, with an intention to
wrest from him his right of citizenship. He confessed, that on this
occasion his feelings were deeply interested, particularly as the manner
of the counsel for the prosecutors was so personal, and went not only to
deny him a seat in the Senate of the United States, but even to contest
his citizenship, and denounce him as being yet an alien.
This was a matter of consequence to many thousands as well as himself,
who have long considered themselves in possession of all the privileges
of denizens, and yet may be deprived of their rights, if the doctrines
of the counsel for the prosecutors should obtain any sanction from the
body who were now to judge of its merits.
Mr. G. entered into a series of observations on the various points of
law, &c., which had been adduced by Mr. LEWIS, and he particularly
remarked, that the Common Law of England was entirely inapplicable to
the subject under consideration. He read the laws of Virginia respecting
naturalization, &c., from which he insisted that he had long since
become a citizen of the United States. He also quoted 1st _Blackstone_,
p. 374, and _Viner's Abridgment_, vol. ii. p. 266, respecting the
different acceptations of denizen and citizen, and he went back so far
as the British statutes in 1740, to show the intention of the old
Government was to naturalize all persons who would go and reside in the
Colonies. He next mentioned the act of Pennsylvania, of the 31st of
August, 1778, and commented on the principles generally entertained by
most writers on the subjects of allegiance and citizenship.
_Blackstone_, 266, &c.
An alien is a man born out of the allegiance of the King. But allegiance
in England is not an allegiance to the country or to society, as it is
understood in this country.
In order to explain the principle of reciprocity, he observed, that when
the two crowns of England and Scotland were united under James, the
inhabitants of Scotland became naturalized in England, as if they had
been natural-born subjects of that country. The allegiance in Britain
was personal to the King, and it has there this remarkable quality, that
by the British laws allegiance can never be shaken off.
This country, before the Revolution, owed allegiance to the King, but
that was destroyed by the Declaration of Independence, and then the
inhabitants of the States became mutually citizens of every State
reciprocally; and they continued so until such time as the States made
laws of their own afterwards respecting naturalization.
As soon as separate governments existed, allegiance was due to each, and
here the allegiance was a reality, it was to the Government and to
society, whereas in Britain it is merely fictitious, being only to one
man.
Every man who took an active part in the American Revolution, was a
citizen according to the great laws of reason and of nature, and when
afterwards positive laws were made, they were retrospective in regard to
persons under this predicament, nor did those posterior laws invalidate
the rights which they enjoy under the Confederation.
Mr. G. here mentioned his having been an inhabitant of Massachusetts
before October, 1780, and he also observed, that the law passed in that
State was decisive against the Common Law of England.
In quoting the laws of Massachusetts, which were passed in 1785, and
afterwards, for naturalizing John Gardner, and James Martin, he remarked
that they clearly implied that even a natural born subject, who had not
acted in the Revolution, and an absentee, was not entitled to
citizenship. He likewise took notice of the case of Mr. WILLIAM SMITH,
of South Carolina, against whose election as a Representative in
Congress, a petition was presented by Doctor Ramsay, although the
decision of South Carolina on that subject was exactly the reverse of
Massachusetts.
In speaking of the difficulties that occurred in explaining the terms
citizen and alien, he ran over a number of cases, and asked whether if a
person had arrived in the United States during the war, from
Nova-Scotia, or elsewhere, and had taken an active part against the
enemy, would he not be better entitled to the right of a citizen, than
even those who afterwards subscribed to the acts? The counsel for the
prosecutors had admitted that a person who had been one of the mass of
the people, at the Declaration of Independence, was a citizen. On the
same principle, until a law passes to disprove that a man who was active
in the Revolution previous to the treaty of peace, was a citizen, he
must be one _ipse facto_.
Mr. G. next read a quotation from the 1st vol. of _Woodison_, p. 382, an
English writer, who acknowledged that all persons were aliens at the
recognition of independence, and that is a more liberal construction
than the council for the petitioners would admit of, for by this
construction, our sailors, &c., ought to be naturalized, lest they be
alarmed by the British.
The new Constitution of the United States requires certain
qualifications for members of Congress, &c., but it does not deprive
persons of their rights who were actually citizens before the
constitution was ratified that made the States the United States. They
were united by consent before, and consequently he was one of the people
before the United States existed.
He went on to read from the Constitution of Massachusetts, and several
other States, sundry clauses in support of his reasoning, and
recapitulated the several heads of Mr. L.'s arguments, to each of which
he replied.
Mr. G. said, that Mr. Lewis was unfortunate in producing the law of
Pennsylvania, for, by proving too much, he had proved nothing, for the
42d sec. of the constitution is retrospective, and by acknowledging the
Articles of Confederation to be the supreme law of the land, persons who
were reciprocally citizens before, are still left in full possession of
the right.
So far from any dangerous consequences arising on my construction of
citizenship, said he, I think it must be evident, that there is more
danger and absurdity in the counsel's own constructions. For, in
remarking on the policy of nations, we find even slaves have been
enfranchised by the great republics in times of common danger. The
policy of America should be to make citizenship as easy as possible, for
the purpose of encouraging population; even during the British dominion
that was a principle laid down, and afterwards it was attempted to be
varied; it is made one of the principal subjects of complaint in the
Declaration of Independence, where it is expressly said, that the king
endeavored to prevent the population of these States, by having laws
made to obstruct the naturalization of foreigners.
If there were any dangerous consequences to be apprehended from the
former regulations on this subject, they are all remedied by the new
constitution.
Therefore, no ill consequence or absurdity can follow. The author of the
Federalist supports this principle in vol. ii. p. 54, for he says, that
it is a construction scarcely avoidable, that citizens of each of the
States are mutually so in all of them.
The first words in the constitution, "We the People," furnished another
argument in support of Mr. G's principles, which he turned to great
advantage, still drawing an inference to show that Mr. L.'s construction
of the subject was most liable to difficulties and to mischievous
consequences.
He concluded by observing, that if there was any disfranchising clauses
in the Constitution of the United States, tending to deprive citizens of
antecedent rights, all such clauses must be construed favorably, and
were evidently on his side. With regard to a sentence that had been
added, by the advice of counsel, to the affidavit of Pelatiah Webster,
he made some remarks which tended to establish his own personal
character, which he trusted would be found, when traced back to his
nativity, to stand the test; and that his right to a seat in the Senate
would also stand upon an equally just foundation.
Mr. Lewis denied having ever seen the affidavit of Mr. Webster, until it
was shown him at the time the examination before the committee was going
forward.
Mr. GALLATIN recriminated, that the clause of which he took notice, was
not in the affidavit when Mr. Webster brought it to the committee, and
that he had permitted it to be added with great reluctance. It was only
the recital of a few words which passed between Mr. G. and Mr. W. in
jest, some years since, wherein Mr. G. had ironically said his name was
Sidney, probably alluding to some essays that had appeared in the
newspapers under that signature, which had been generally attributed to
the pen of another gentleman in the State.
Mr. JACKSON, in order to bring the merits of the subject directly before
the Senate, said he would move a resolution, that would have that
effect; but upon Mr. Lewis's observing, that he had not yet closed his
arguments, and at the instance of Mr. BUTLER, from South Carolina, who
said he would second Mr. JACKSON's motion hereafter, it was withdrawn
for the present.
_Ordered_, That the further consideration thereof be postponed until
to-morrow.
SATURDAY, February 22.
_Contested Election._
The Senate resumed the consideration of the report of the committee on
the petition of Conrad Laub, and others, respecting the election of Mr.
GALLATIN to be a Senator of the United States.
The greater part of the day was taken up by Mr. Lewis's pleadings,
wherein he entered into a very extensive field of reasoning, and quoted
a great number of authorities, in support of the principles on which he
had set out last Thursday, and to prove that in the true sense of the
Constitution of the United States, as well as of that of the State of
Pennsylvania, Mr. GALLATIN was not duly qualified for the office of a
Senator, and therefore, he trusted that the honorable Senate, upon
mature reflection, would vacate his seat.
Mr. GALLATIN closed his defence in a short speech, wherein he quoted
_Vattel_, p. 167, and explained the 42d section of the Constitution of
Pennsylvania, the liberal construction of which, he said, was in his
favor, and the construction contended for by the counsel, absurd. He
finished by reading a passage from _Lord Bacon's_ works, to show that
where there is any doubt in the laws, it should operate in favor of the
defendant, and he accordingly made no doubt but that the Senate would
validate his election.
_Ordered_, That the further consideration of the subject be postponed
until Monday next.
A motion was made as follows:
"_Resolved_, That ALBERT GALLATIN, returned to this House
as a member for the State of Pennsylvania, is duly
qualified for, and elected to, a seat in the Senate of the
United States."
_Ordered_, That the consideration of this motion be postponed until
Monday next, and that a number of copies of the fourth article of the
First Confederation of the United States be printed for the use of the
Senate.
MONDAY, February 24.
The Senate resumed the consideration of the motion made the
twenty-second instant, on the report of the committee on the petition of
Conrad Laub, and others, respecting the election of Mr. GALLATIN to be a
Senator of the United States; and, after progress,
_Ordered_, That the further consideration thereof be postponed until
to-morrow.
FRIDAY, February 28.
The Senate resumed the consideration of the 22d instant, on the report
of the committee on the petition of Conrad Laub, and others, respecting
the election of Mr. GALLATIN to be a Senator of the United States.
And, on the question to agree to the motion, as follows:
"_Resolved_, That ALBERT GALLATIN, returned to this House
as a member for the State of Pennsylvania, is duly
qualified for, and elected to, a seat in the Senate of the
United States:"
It passed in the negative--yeas 12, nays 14, as follows:
YEAS.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn,
Jackson, Langdon, Martin, Monroe, Robinson, and Taylor.
NAYS.--Messrs. Bradford, Cabot, Ellsworth, Foster,
Frelinghuysen, Hawkins, Izard, King, Livermore, Mitchell,
Morris, Potts, Strong, and Vining.