_December 28, 1808._
Ordered to lie on the table.
_Conduct of the British Minister._
The House resumed the consideration of this subject. At four o'clock
Mr. LIVERMORE commenced a speech, but gave way for a motion to adjourn
which was carried, 53 to 51.
SATURDAY, December 30.
A motion was made by Mr. DAWSON, that the report made yesterday, on
the occurrence between I. A. COLES and a member of this House, and
the documents accompanying the same, be printed for the use of the
members: and the question being taken thereon, it was resolved in the
affirmative--yeas 76, nays 25. The report and documents were referred
to a Committee of the Whole on Thursday next.
_Conduct of the British Minister._
Mr. RHEA, of Tennessee--Mr. Speaker, it is not deemed necessary in the
observations I will make on the resolution under consideration, to
take into view any relations of the United States with Great Britain
or France, because it does not clearly appear that any exist, except
in this, that the United States are suffering loss and damage. If
there be any relations with Great Britain, as they respect the United
States, they are negative and suffering; as they respect Great Britain,
positive and active. Be they what they may, they are not properly
within the range of a discussion on this resolution, which merely
respects the conduct of an Ambassador Extraordinary and Minister
Plenipotentiary of His Britannic Majesty near the United States. How
the relations, if there be any, between the United States and France
are connected with the subject of this resolution, will require the
greatest civilian, the most wise master of public law, to discover;
the consideration of these subjects, except so far as mentioning only
circumstances which have existed, will be omitted. Neither does it
appear very necessary to recur, in examining this question, in the view
I intend to take of it, to writers or authorities, as they are called,
on public law or laws of nations, because, if any time heretofore,
there was a public law acknowledged and practised by all civilized
nations, that law is, in these times, become obsolete and disused; and
the great nations of the old world have severally adopted particular
systems of law respecting other nations, adapted to their own several
existing circumstances, and bottomed on principles different from
those which heretofore were denominated principles of public law.
When, therefore, in the course of these observations, said Mr. R., I
may use the words "public law," my intention is to express thereby an
idea of some system named public law, not the law of nature, which,
gradually becoming obsolete, has been very little, if any, in use
since the commencement of the American Revolution--a system which,
notwithstanding it is often appealed to, if ever it did exist, is now
only to be found in books, and not in practice. Neither is it intended
in this case to draw into notice any diplomatic proceedings many
years heretofore transacted, by way of argument, in support of what I
may say on the subject of this resolution; inasmuch as the truth and
merits of it do rest and depend on the Message of the President of the
United States, and the documents accompanying the same, and the other
documents relative thereto, which have been received from him since
the commencement of this session of Congress, together with some other
documents relative to the arrangement of April last, made between
the American Government and the honorable David Montague Erskine,
late Ambassador Extraordinary and Minister Plenipotentiary from His
Britannic Majesty, near the United States.
This resolution is not an answer to a Message from the President of the
United States; there are not in it any words of relation between it
and a message evidencing an expression or intended direction of that
nature; neither are there in it any words manifesting an intention to
transmit it to him as an address; for these and other reasons, which,
if necessary, might be mentioned, it does not appear that this joint
resolution can, with any propriety, be named an answer or response to
a Message from the President, or an address to him. It may, therefore,
be reasonably expected, that any objection raised against it, on the
opinion of its being an answer to a Message from the President, or an
address to him, will not prevail.
This resolution is not a declaration of war; it is predicated on
a specified conduct of an Ambassador Extraordinary and Minister
Plenipotentiary of His Britannic Majesty, near the Government of
the United States, and on the denial of the Executive Government
of the United States to receive any further communications from
him in consequence of that conduct. And it may be observed that,
how ancient soever among nations the custom or usage of sending or
receiving Ambassadors, Plenipotentiaries, and public Ministers of
that kind may be, the custom or usage, it is reasonable to believe,
is bottomed only on the great principle of humanity, and does not
impose a perfect obligation either to send such minister, or to receive
him, or to continue him after being received; therefore, not to send
an Ambassador, Plenipotentiary, or public Minister--not to receive
such Minister--to recall such Minister--or to refuse to receive any
further communications from such Minister, is not a just cause of
war; and it follows that the acting or not acting, in either of the
cases, is not a declaration of war. True it is, that the resolution
states, that "the Congress of the United States do solemnly pledge
themselves to the American people, and to the world, to stand by and
support the Executive Government in its refusal to receive any further
communications from the said Francis James Jackson, and to call into
action the whole force of the nation, if it should become necessary, in
consequence of the conduct of the Executive Government in this respect,
to repel such insult, and to assert and maintain the rights, the honor,
and the interests of the United States;" but, it is to be observed,
that that pledge goes only to the doing of certain things which may
become necessary in consequence of the conduct of the Executive
Government in respect to that thing which is alluded to. But if any
gentleman is disposed to continue to this resolution the name of an
answer to a Message from the President, or address to him, or to call
it a declaration of war, he certainly may give it any name he pleases;
and I hope, said Mr. R., that I may also have the liberty to give it a
name that appears appropriate to it.
[Here Mr. RHEA entered into a close examination of the
correspondence between the British Minister and the American
Secretary of State, to show, _first_, the insult to the
American Government by charging it with falsehood; _secondly_,
the falsity of that charge by showing that it was founded on
false assumptions and continued:]
The whole civilized world is a spectator in the discussion of this
resolution; and all the civilized nations in the world are and will be
anxiously desirous to know, whether the United States of America, after
having hitherto, with impunity, suffered all the aggressions of Great
Britain, and after having suffered Great Britain, with impunity, to
impress thousands of their seamen, and retain them on board of their
armed ships and vessels, and compelling them to fight against nations
with whom the United States are at peace; after having suffered Great
Britain, with impunity, to murder their citizens, and after having
suffered Great Britain with impunity to attack their sovereignty, in
case of the Chesapeake frigate, will, after all these outrages and
hostile acts, tamely, meekly, and patiently, submit and bow down to the
lowest degree of debased degradation, and suffer Francis J. Jackson,
Ambassador Extraordinary and Minister Plenipotentiary of His Britannic
Majesty, with impunity, to abuse their Executive Government, and to
impute to it with impunity the detestable charge of untruth.
TUESDAY, January 2, 1810.
Another member, to wit, from Pennsylvania, ROBERT JENKINS, appeared,
and took his seat in the House.
WEDNESDAY, January 3.
_Trade to the Baltic._
Mr. BURWELL said that he had given to the subject of our foreign
relations as much consideration as he was capable of doing, and
digested some plan which appeared to him best adapted to the present
situation of the country. It would be recollected, however, that
they had seen in the papers that France either had blockaded or did
contemplate the blockade of all the ports not embraced in the British
orders; and they had seen in the papers a paragraph intimating that a
project existed to close the northern ports against all vessels but
those of France. He conceived it necessary to call for any information
which by possibility might be in possession of the Executive on this
subject, as such information, if to be obtained, might have some
influence upon his mind as to the course proper to be pursued; and
therefore moved the following resolution:
_Resolved_, That the President of the United States be
requested to lay before this House any information he may
possess relative to the blockade of the ports of the Baltic by
France, and the exclusion of neutral vessels by Russia, Sweden,
and Denmark.
The motion was agreed to without opposition, and Mr. BURWELL and Mr.
GARDNER appointed a committee to wait on the President accordingly.
_Conduct of the British Minister._
The House resumed the consideration of the unfinished business of
yesterday, being the resolution from the Senate approving the conduct
of the Executive in refusing to receive any further communication from
Francis James Jackson, &c.
The resolution was ordered to be read a third time.
To-morrow was named as the day on which it should be read a third time,
and negatived, ayes, 32.
The resolution was then ordered to be read a third time to-day.
Mr. NEWTON.--Mr. Speaker: It is with regret, sir, I feel myself
constrained to offer some observations on the resolution from the
Senate now on its passage.
I am not ignorant that I am trespassing on your patience, and
that, at this late period of the discussion, I address you to no
little disadvantage; but I derive, under such discouragement, great
satisfaction in knowing that your politeness and indulgence are at all
times the same.
I lament, sir, that the discussion has not been confined to the
subject which the resolution presents for consideration, but as I had
no control over the debate, I am compelled to pursue it through the
meanders it has taken.
As silence on the observations which have been made, though on points
foreign to the one in debate, may be ascribed to an acquiescence in
their justness, I cannot refrain from apprising you that I hold myself
bound to answer such as shall, in my judgment, demand an answer. This
course will compel me to discuss points no ways related to the one
before the House.
I shall endeavor to atone for taking this range by giving to each
subject a separate consideration, and by observing a due regard to
brevity. With this apology, I hasten in the first instance to the
discussion of the competency of Mr. Erskine's powers to conclude the
provisional agreement of the 19th of April last.
I put aside from this discussion the instructions of Mr. Erskine
authorizing him to tender reparation for the attack on the Chesapeake,
because his power so to act has not been distinctly questioned. The
gentlemen who have preceded me on the same side of the question have
sustained, I trust to your satisfaction, and that of the House,
the competency of Mr. Erskine's powers to make and conclude the
arrangement of the 19th of April last. Persuaded, as I am, that they
have performed this task with great ability, I will not tire your
patience by passing over the same ground, nor by citing the same
authorities on which they relied to support their arguments.
I will permit myself only to take up the discussion of the points
which terminated their remarks. I will content myself with furnishing
some authorities not pressed into service, in support of the positions
taken by them. That Mr. Erskine was a Minister Plenipotentiary, cannot
be denied; in that character he was received, and in that he acted
until he was recalled, is equally true. The propositions made by him
in that character were received and acted upon as the propositions
of his Government. The Executive of the United States had no control
over his private instructions; no right to demand an exhibition of
them; they were given for the government of the Minister's conduct.
If he acted in contravention of his secret orders, over which his
power was absolute, he became responsible to his sovereign for his
non-observance of them; but his public acts must necessarily be binding
and obligatory, originating, as they must be considered, in the general
and avowed powers of the Minister, exercised in conformity to his
private instructions. If his secret instructions limit his general
commission, he is bound honestly to apprise the Government with which
he is negotiating of the fact. He ought to say, to this boundary I
can go; beyond it I cannot pass. To illustrate this doctrine, which I
hold to be sound and correct, I will give as an instance the chaste
conduct of Mr. Monroe and Mr. Pinkney, who, previous to affixing
their signatures to the treaty concluded by them with the British
Commissioners, publicly apprised the Commissioners that they had
no authority to bind the Government of the United States, as their
instructions did not permit them to conclude a treaty which should not
contain stipulations against impressments. The fate of that treaty is
known. It was rejected. The British Government could not complain,
because it was previously informed that the Ministers of the United
States had no power to form such a treaty.
Mr. Erskine never entertained a doubt but that his powers were
competent to the formation of the arrangement of April last. He
unhesitatingly declared, in submitting his propositions for suspending
as to the United States the operation of the Orders in Council, that
he was commanded by his Majesty to submit them to the consideration of
the Executive of the United States. I will prove this statement by his
letter of April 18, 1809, and others, addressed to the Secretary of
State. He says:
"The favorable change in the relations of His Majesty with
the United States, which has been produced by the act usually
termed the non-intercourse act, passed at the last session
of Congress, was also anticipated by His Majesty, and has
encouraged a further hope that a reconsideration of existing
differences might lead to their satisfactory adjustment. On
these grounds and expectations, I am instructed to communicate
to the American Government His Majesty's determination of
sending to the United States an Envoy Extraordinary, invested
with full powers to conclude a treaty on all points of the
relations between the two countries. In the mean time, with a
view to the attainment of so desirable an object, His Majesty
would be willing to withdraw his Orders in Council of January
and November, 1807, so far as respects the United States, in
the persuasion that the President would issue a proclamation
for the renewal of the intercourse with Great Britain, and
that whatever difference of opinion should arise in the
interpretation of the terms of such an agreement, will be
removed in the proposed negotiation."
In another letter, of April 19, he says:
"In consequence of the acceptance by the President, as stated
in your letter of the 18th instant, of the proposals made by
me on the part of His Majesty, in my letter of the same day,
for the renewal of the intercourse between the respective
countries, I am authorized to declare that His Majesty's Orders
in Council of January and November, 1807, will have been
withdrawn, as respects the United States, on the 10th day of
June next." (1809.)
The above extracts from Mr. Erskine's letters leave us in no suspense
as to the opinion he had formed of his instructions. In this settled
belief that he had conformed strictly to the instructions of his Court,
we find him so late as June 15, 1809, when he notified to the Secretary
of State the new Order in Council issued on the 26th of April last. In
this letter he says:
"In consequence of official communications sent to me from His
Majesty's Government, since the adoption of that measure, I am
enabled to assure you that it has no connection whatever with
the overtures (of the 19th of April, 1809) which I have been
authorized to make to the Government of the United States, and
that I am persuaded that the terms of the agreement so happily
concluded by the recent negotiation, will be strictly fulfilled
on the part of His Majesty. The internal evidence of the order
itself would fully justify the foregoing construction, and,
moreover, it will not have escaped your notice, that the repeal
has not thereby been made of the orders of the 7th of January,
1807, which, according to the engagement I have entered into
on the part of His Majesty, is to be abrogated with the other
orders, in consequence of the adjustment of differences between
the two countries, and the confidence entertained of a further
conciliatory understanding."
Thus it appears that Mr. Erskine, from communications, subsequent to
the 26th of April, from this Government, is decidedly of opinion that
he acted within the pale of his instructions. His language is free
from ambiguity. He says: "In consequence of _official communications_
sent to me from His Majesty's Government, since the adoption of the
order of the 26th of April, I am enabled to assure you it has no
connection whatever with the terms of agreement concluded by the recent
negotiation." Nothing can be clearer than that his opinion was made up
on a full consideration of all the instructions received by him from
his Government. This must be evident to the most superficial observer
on reading the following extract from a letter of the 14th August,
1809, addressed by him to the Secretary of State. It is as follows:
"Under these circumstances, therefore, finding that I could
not obtain the recognitions specified in Mr. Canning's
despatch of the 23d of January, (which formed but one part
of his instructions to me,) in the formal manner required,
I considered that it would be in vain to lay before the
Government of the United States the despatch in question,
which I was at liberty to do _in extenso_, had I thought
proper. But as I had such strong grounds for believing that
the object of His Majesty's Government could be attained,
though in a different manner, and the spirit, at least, of
my several letters of instructions be fully complied with, I
feel a thorough conviction on my mind that I should be acting
in conformity with His Majesty's wishes, and, accordingly,
conclude the late provisional agreement on His Majesty's behalf
with the Government of the United States."
The British Government could not, from this view, disavow the act of
its Minister without incurring, and that justly, the charge of bad
faith. To give support and nerve to this inference, I will read a
passage from an author of great celebrity, _Burlamaqui_. The author
says: "If he who has a commission to treat has kept within the bounds
of the power annexed to his office, though he acts contrary to his
private instructions, the sovereign is to abide by what he has done;
otherwise, we could never depend on engagements contracted by proxy."
This authority is full, and in point; it covers the whole ground; it
leaves no fissures through which crafty politicians can make an escape.
On the reputation of the British Government it fixes a blot which
nothing short of the power of time can efface.
Past transactions are worthy of remembrance, and sometimes of
repetition. The chameleon may take the hue of surrounding objects, but
his change of color does not new-model his figure, form, or character.
Let us, for a moment, bring to our recollection the occurrences
which took place, and the orthodox opinions which were held, at the
time when the honor and dignity of this nation were deeply wounded,
(a wound not yet healed,) in the attack of the Chesapeake; when the
blood of American citizens was wantonly shed, and when the British
squadron, after the commission of an act so atrocious, in violation of
the jurisdiction of the United States, anchored in Hampton Roads and
interrupted the regular communication between Norfolk and other places.
After having taken a review of facts, let us compare the opinions of
that day with those subsequently delivered; and, by the standard of
consistency, test them.
The President, soon after the commission of those outrages, issued
his proclamation, interdicting the entrance of the waters of the
United States to the public armed vessels of Great Britain. That
act of the President was considered as just and proper, as flowing
from moderation and wisdom. The propriety of it was defended on the
declaration to the Executive by Mr. Erskine, that it was his firm
belief that Admiral Berkeley had acted without orders. Keep in force
the proclamation, was the language of that memorable day, until
reparation, ample and satisfactory, should be made. Such was the
state of the public mind. Mr. Rose arrived; his mission, instead of
having the salutary tendency of removing the irritations excited, was
eminently calculated to nurture and increase them. Insults were added
to injuries. Before he would deign to make known to the President the
nature and extent of the reparation he was authorized to offer, he
demanded the revocation of the President's proclamation; in plain terms
informing this nation that its Government should make concessions to
His Majesty for using precautionary measures against the lawless acts
of his officers, as a prerequisite to a tender of the reparation His
Majesty had condescended through him to offer. This new mode of redress
proving no ways satisfactory, Mr. Rose's mission terminated. No sooner
was it known that the negotiation with Mr. Rose proved abortive, in
consequence of the inadmissible demands made by him, as already stated
by me, than the President was openly accused as being the cause of it,
by adhering to a "mere punctilio."
Thus, sir, we see, that no Republican President can do right, when his
actions are viewed through the medium of party spirit.
Mr. STANLEY said he did not flatter himself he could add any thing to
the information which the House already possessed on this subject. Yet,
as a measure was about to be adopted, which, without the possibility
of yielding any advantage, would, in his opinion, fix a stain on the
national character, and put at hazard the peace and prosperity of the
country, he felt impelled by the imperious call of duty, to raise
his feeble voice against it. Permit me here, said Mr. S., to express
the surprise and regret with which I have heard observations from
those who support the resolution, which, having no connection with
the resolution itself, are calculated, if not intended, to excite the
passions of the House or of the people; to furorize the public mind;
to mislead our judgments in deciding the question, and to obtain a
result rather from passion than reason. I allude to the repeated
recital of British outrages, the bombardment of Copenhagen, and the
attack on Constantinople. A calm discussion of the question itself,
would probably lead to as correct a decision, and be not less honorable
to the American Congress. The danger of foreign influence has been
mentioned to us, by way of caution, I presume. A solicitude on this
point can be but commendable, though I hope unnecessary. It may be the
fate of this country to be cursed with men whose ill-directed ambition,
and predominant selfish views, lead them to support the interest and
the designs of foreign nations, though adverse to the interests and
honor of their own. If such there be, let them be marked as objects of
suspicion, scorn, and contempt.
It has also been the fate of other countries, and may be the misfortune
of this, to possess in its bosom, and to cherish in its confidence,
men, who from an equally base and corrupt self-love and ill-directed
ambition, become supple courtiers, political sunflowers, cringing
demagogues; who, worshipping the idol power, whether in the hands of
a military commander, a protector, or a consul, tender an implicit
obedience and united support to every measure which emanates from the
Executive, the source of office and profit. Such men bring upon a
country the curses of undue domestic influence. Not to know and not to
fear the dangers both of foreign and domestic influence, is to close
our eyes on the light of history, and to disregard the testimony of
ages. The States of Greece, as the gentleman from Virginia (Mr. EPPES)
reminds us, fell from foreign influence; the unhappy Kingdom of Spain
at this moment groans and bleeds from the same cause. And, sir, from
domestic influence, Rome had her Cæsar, England her Cromwell, and
France now drags the chains of Bonaparte. Should it ever become the
settled doctrine in this country, that the opinions and the measures
of the Executive are entitled to our prompt acquiescence and blind
support; that, like the devoted soldier, a mere military machine, we
are not to pause over a vote; that free discussion of the merits of
the Executive shall authorize suspicion of the purity of the citizen;
the time will be fast hastening when a throne shall be erected upon
the ruins of the Constitution of the United States, and the name of
America be added to the list of those Republics which have "risen
like the rocket, and fallen like the stick." Whether either of these
parties exist in this country, I need not at this time inquire; no
circumstance could render such an inquiry in this place other than
unpleasant. I have suggested the possibility of their existence, and
their evils, with a view equally pure, I hope, with that of those who
have before alluded to them, and to excite a caution which well merits
the attention of the American people.
Associated in this House with gentlemen, all of whom, I am to
presume, are actuated by the same love of country; who alike feel
the obligations of honor, conscience, regard to the constitution and
responsibility to our constituents--I cannot but believe they act on
this occasion with motives as pure as my own. Yet, sir, feeling myself
bound by these high sanctions to pursue the course pointed out by my
own judgment, and the dictates of my own conscience, I am compelled
to declare, that I disapprove the conduct of the administration in
the affair with Mr. Jackson, and that I am decidedly opposed to the
resolution before us.
From the view I have taken of the correspondence between Mr. Smith and
Mr. Jackson, my mind is satisfied--
That the letters of Mr. Jackson do not contain the insult to our
administration which is imputed to them by the resolution. That, if
they did, the Congress of the United States are not required either
by duty or policy to interfere in the business--and that if they will
interfere, the resolution under consideration is improper. On each of
these points I will submit a few observations.
In regard to the insult said to be contained in Mr. Jackson's
letters, my remarks shall be brief, with no other reference to the
letters already so often repeated, as to have become "dull as a tale
twice told," than I may conceive necessary to be intelligible. The
offensive idea "that the Executive Government of the United States
had a knowledge that the arrangement lately made by Mr. Erskine in
behalf of his Government with the Government of the United States,
was entered into without competent powers on the part of Mr. Erskine
for that purpose," is said in the resolution to be conveyed in Mr.
Jackson's letter of the 23d of October, and to be repeated in that of
the 4th of November. Yet, as if it was on all hands admitted that no
such idea could be found in these letters, all who have most anxiously
desired to find it, have endeavored to establish it by recurring to
Mr. Jackson's letter of the 11th of October, and there point us to
that part of the letter, where Mr. Jackson, in reply to Mr. Smith's
declaration, that an explanation was expected of the grounds of the
disavowal by His Britannic Majesty of the arrangement made between
Mr. Smith and Mr. Erskine, informs Mr. Smith, that he had seen with
pleasure the forbearance of Mr. Smith, to complain of this disavowal,
"inasmuch as you could not but have thought it unreasonable to
complain of the disavowal of an act done under such circumstances as
could only lead to the consequences that have actually followed."
He adds, "It was not known when I left England whether Mr. Erskine
had, according to the liberty allowed him, communicated to you _in
extenso_ his original instructions; it now appears that he did not.
But in reverting to his official correspondence, and particularly to
a despatch addressed on the 20th of April to His Majesty's Secretary
of State for Foreign Affairs, I find that he there states, that he
submitted to your consideration the three conditions specified in those
instructions, as the groundwork of an arrangement which, according
to information received from this country, it was thought in England
might be made, with a prospect of great mutual advantage. Mr. Erskine
then reports, _verbatim et seriatim_, your observations upon each of
the three conditions, and the reasons which induced you to think that
others might be substituted in lieu of them. It may have been concluded
between you that these latter were an equivalent for the original
conditions; but the very act of substitution evidently shows that those
original conditions were in fact very explicitly communicated to you,
and by you of course laid before the President for his consideration.
I need hardly add, that the difference between these conditions and
those contained in the arrangement of the 18th and 19th of April, is
sufficiently obvious to require no elucidation; nor need I draw the
conclusion, which I consider as admitted by all absence of complaint on
the part of the American Government, viz: that under such circumstances
His Majesty had an undoubted right to disavow the act of his Minister."
As the offensive idea is alleged to be an allusion to the circumstances
under which the arrangement with Mr. Erskine was concluded, which
justified the King in disavowing it; intimated to be known to our
administration at the date of this letter; it is necessary to
search, from the evidence before us, what those circumstances were
upon which the King justified his disavowal; these found, we shall
be at no loss to fix Mr. Jackson's allusion, and then to inquire
whether these circumstances thus alluded to, were in fact known to
our administration. It appears from the documents before us, that
the King's Order in Council of the 24th of May, 1809, announcing the
provisional agreement concluded by Mr. Erskine and the disavowal of it,
assigns as the sole ground of the disavowal, that the said agreement
"was not such as was authorized by His Majesty's instructions." And
Mr. Pinkney, on the 28th of May, informs Mr. Smith that the British
Minister, Mr. Canning, had in their interview on the 25th of May
declared "that the British Minister (Mr. Erskine) had acted in his
late negotiation and engagements with you, not only without authority,
but in direct opposition to the most precise instructions;" that these
facts were communicated by Mr. Pinkney, and known to our administration
before the arrival of Mr. Jackson, appears from the correspondence
between Mr. Smith and Mr. Erskine in July and August. Mr. Jackson
also, in his letter of the 11th of October, says that his Government
"with frankness, promptitude, and a most scrupulous regard to national
honor, gave notice to the American Minister in London of the disavowal,
of the motives of it, and of the precautions spontaneously taken by
His Majesty to prevent any loss or injury accruing to the citizens of
the United States from an agreement, however unauthorized, made in
His Majesty's name." And in his letter to Mr. Smith, 23d of October,
explicitly declares "His Majesty was pleased to disavow the agreement
concluded between you and Mr. Erskine, because it was concluded in
violation of that gentleman's instructions, and altogether without
authority to subscribe to the terms of it." And to dispense with a
recital of each particular in which the instructions were disregarded,
Mr. Jackson adds, "These instructions I now understand by your letter,
as well as from the obvious deduction which I took the liberty of
making in mine of the 11th instant, were at the time in substance made
known to you; no stronger illustration, therefore, can be given of the
deviation from them which occurred, than by a reference to the terms of
your agreement."
We thus find the British Government on every occasion, and through
every agent, assigning the violation of instructions, and the want
of authority in Mr. Erskine to conclude the agreement, as the sole
ground of the disavowal, and relying on that ground, and no other,
to shield them from the charge of perfidy. With this evidence before
us; with the admission of Mr. Jackson "that the instructions were
not made known _in extenso_;" with the correspondence of Mr. Smith
and Mr. Erskine showing the knowledge of our administration of the
instructions to Mr. Erskine and of the grounds of the disavowal of his
arrangement prior to the arrival of Mr. Jackson in the United States,
does it consist with candor and good sense; is it not a palpable
violation of both, so to torture the language of Mr. Jackson in his
letter of the 11th of October, in allusion to the circumstances which
"could only lead to the disavowal," and to the knowledge of them by
our administration, which prevented their complaints to him on his
arrival, as to make them convey an idea that a distinct and different
ground of disavowal existed than that which his Government and himself
had before repeatedly assigned; to impute to him the insinuation that
the restricted authority of Mr. Erskine was known at the time of the
arrangement, when he had explicitly declared "that the instructions
were not made known _in extenso_," and thus to fix upon him the
absurdity of contradicting himself?
Such construction, and such an imputation, in my opinion, is at war
with every sound rule of construction, and every honorable principle of
just and fair dealing. It is worthy the observation of those gentlemen
who so clearly see an insult in this letter of the 11th of October,
that they have found what had escaped the jealous perspicacity of Mr.
Smith, and the patient research of the draughter of the resolution;
since Mr. Smith, in his reply of the 19th of October, gives no
intimation of any thing offensive in this letter, and the resolution
confines the insulting idea to the letter of the 23d of October. We
come now to the letter of the 23d of October, in which, according to
the resolution, is contained the "insolent and indecorous expressions,
conveying the idea that the Executive Government of the United States
had a knowledge that the arrangement lately made by Mr. Erskine with
the Government of the United States was entered into without competent
power on the part of Mr. Erskine." The offensive idea is said to
be found in the following part of Mr. Jackson's letter: "I have no
hesitation in informing you that his Majesty was pleased to disavow
the agreement concluded between you and Mr. Erskine, because it was
concluded in violation of that gentleman's instructions, and altogether
without authority to subscribe to the terms of it. These instructions,
I now understand by your letter, as well as from the obvious deduction
which I took the liberty of making in mine of the 11th instant, were
at the time in substance made known to you; no stronger illustration,
therefore, can be given of the deviation from them which occurred
than by a reference to the terms of your agreement." There is no
equivocation in this language. He says the instructions were made known
_in substance_--an expression which from its very terms excludes the
idea of being made known in full extent; and that it is true, as Mr.
J. here alleges, that the substance of Mr. Erskine's instructions were
made known, appears from Mr. Smith's letter of the 19th of October.
"Certain it is that your predecessor did present for my consideration
the three conditions which now appear in the printed document; that he
was disposed to urge them more than the nature of two of them (both
palpably inadmissible, and one of them more than merely inadmissible)
could permit, and that on finding his first proposals unsuccessful,
the more reasonable terms comprised in the arrangement respecting the
Order in Council were adopted." And Mr. Erskine himself declared to
his Government, 20th of April, as stated by Mr. Jackson to Mr. Smith,
11th of October, and not questioned by him, "that he had submitted
to the consideration of Mr. Smith the three conditions specified in
his instructions, as the groundwork of an arrangement," and adds
the reasons which induced Mr. Smith to think "that others might be
substituted in lieu of them." These expressions of Mr. Jackson are
unequivocal, free from obscurity, and cover no insinuation. They
assert a single fact, the existence of which is established by the
letters of Mr. Smith himself. To find in them a meaning "conveying the
insolent and indecorous idea that our Government knew of Mr. Erskine's
restricted authority," is to give to language a signification different
from that heretofore received, and to exert a strength of imagination
to which I have no pretensions. But in the letter of Mr. Jackson of
November 4th, is said, by the resolution, to be found "the still
more insolent and affronting "repetition of the same insinuation. In
the conclusion of this letter Mr. J. complains, not intemperately,
of the liberty Mr. Smith claimed of styling his remarks "irrelevant
and improper," a freedom which I should regret to believe would be
justified by our Secretary's ideas of decorum. Mr. Jackson concludes in
the words which are said to contain this offensive repetition of the
imaginary insult: "You will find in my correspondence with you, that
I have carefully avoided drawing conclusions that did not necessarily
follow from the premises advanced by me, and least of all should I
think of uttering an insinuation where I was unable to substantiate a
fact."
If Mr. Jackson had really uttered an unfounded insinuation, he
here certainly repeats it, because he adheres to all he had before
said, and retracts nothing. But if, as I believe, he had not made
any insinuations, but had directly and obviously referred to facts
which were either admitted or had been, substantially proved, and
more especially as he has not anywhere made the insinuation charged,
"that our Government were acquainted with Mr. Erskine's restricted
authority," the conclusion seems to be irresistible, that he could
not here repeat an insinuation which he had not previously made.
This paragraph obviously means that he had abstained from such an
insinuation because "he was unable to substantiate the fact." Nor can I
conceive how this declaration could be offensive to Mr. Smith, unless
received by him as presenting a contrast to his own deportment, in
which case he owes his feelings to his own conscious sensibility.
Were it, however, otherwise, and if, instead of an _insinuation_ so
hidden that a Secretary of State only can discover it, Mr. Jackson
had given a direct and unequivocal insult, the Congress of the United
States are not required either by duty or policy to interfere. The
constitution has wisely created different branches of the Government,
committed to each its separate cares and duties, made each independent
of the other, intending thereby to secure the separate deliberation
and separate responsibility of each. To attain its blessings, these
valuable objects of the constitution ought not to be defeated. To the
President alone is given the power to receive Ministers and to treat
with them, and as in the course of this duty he becomes personally
interested in the deportment of foreign Ministers, if they demean
themselves disrespectfully towards him, he is clothed with the power
to break off intercourse with them at pleasure, and so far to suspend
their ministerial functions. This power has been repeatedly exercised
by our Presidents, as the constitution intended it should be, upon
their own responsibility. And it is the highest policy of this
Government, in order to obtain the advantages of the free judgment
and decision of the President, so to conduct towards him that he
should learn to act without fear of the censure of Congress on the
one hand, and without any hope on the other, that their countenance
shall shelter his measures from scrutiny. This policy, and the
strict inviolability of the Executive power in all cases of treaty,
were emphatically settled in the case of Jay's Treaty, in which the
President, (whose independent example deserves more respect than it has
met from his successors), standing upon his own responsibility refused
to submit to the House of Representatives any papers relating to that
negotiation, except the treaty itself. Yet if the plan proposed by
these resolutions be adopted; if we by formal resolutions approve the
conduct of the President in an affair so exclusively his own, as that
of the rupture with Mr. Jackson, may we not on some future occasion,
as observed by my honorable colleague, (Mr. MACON,) claim the right of
censuring in matters equally within his sole and peculiar province?
If, then, we are to interfere with Executive duties, not merely as
sycophants, applauding his every act, but as freemen condemning what
we do not approve, the inevitable consequence must be, a conflict
between the Executive and Legislative Departments, in which the
wounds of either can only be inflicted through the constitution; or
(an issue equally fatal) the advantages intended to be derived from
separate deliberation, distinct responsibility, and mutual jealousy
and watchfulness of the separate departments disappear, in a miserable
complaisance of acting by previous concert, and thus propping each
other before the people.
The question was then taken on postponement as moved by Mr. GARDENIER,
and negatived without a division.
And at length, at half past five o'clock, the main question on the
final passage of the resolution was taken, and carried--yeas 72, nays
41, as follows:
YEAS.--Lemuel J. Alston, Willis Alston, jr., William Anderson,
Ezekiel Bacon, David Bard, Burwell Bassett, William W. Bibb,
Adam Boyd, John Brown, Robert Brown, William A. Burwell,
William Butler, Joseph Calhoun, Matthew Clay, Howell Cobb,
James Cochran, James Cox, William Crawford, Richard Cutts, John
Dawson, Joseph Desha, John W. Eppes, William Findlay, Jonathan
Fisk, Meshack Franklin, Barzillai Gannett, Gideon Gardner,
Thomas Gholson, jr., Peterson Goodwyn, William Helms, James
Holland, Benjamin Howard, Jacob Hufty, Robert Jenkins, Richard
M. Johnson, Thomas Kenan, William Kennedy, John Love, Aaron
Lyle, Robert Marion, Samuel McKee, Alexander McKim, William
Milnor, John Montgomery, Nicholas R. Moore, Jeremiah Morrow,
Thomas Newbold, Thomas Newton, John Nicholson, Peter B. Porter,
John Rea of Pennsylvania, John Rhea of Tennessee, Matthias
Richards, John Roane, Erastus Root, John Ross, Ebenezer Sage,
Thomas Sammons, Ebenezer Seaver, Adam Seybert, Dennis Smelt,
John Smilie, George Smith, Henry Southard, John Taylor, John
Thompson, Uri Tracy, Charles Turner, jr., Robert Weakley,
Robert Whitehill, and Robert Witherspoon.
NAYS.--Daniel Blaisdell, James Breckenridge, John C.
Chamberlain, William Chamberlin, Epaphroditus Champion, Martin
Chittenden, Samuel W. Dana, John Davenport, jr., William Ely,
James Emott, Barent Gardenier, Thomas R. Gold, William Hale,
Nathaniel A. Haven, Jonathan H. Hubbard, Richard Jackson,
jr., Herman Knickerbacker, Joseph Lewis, jr., Edward St.
Loe Livermore, Robert Le Roy Livingston, Nathaniel Macon,
Archibald McBryde, Jonathan O. Mosely, Jos. Pearson, Benjamin
Pickman, jr., Timothy Pitkin, jr., Elisha R. Potter, Josiah
Quincy, Richard Stanford, John Stanley, William Stedman, James
Stephenson, Lewis B. Sturges, Jacob Swoope, Samuel Taggart,
Benjamin Tallmadge, Jabez Upham, Killian K. Van Rensselaer,
Laban Wheaton, Ezekiel Whitman, and James Wilson.
[On this vote were absent 27 members, viz: Messrs, CAMPBELL, CLOPTON,
COOK,* CRIST, DENNING,* GOLDSBOROUGH, GRAY, HEISTER, J. G. JACKSON,
JONES, _Key_, LYON,* MATTHEWS, MILLER, T. MOORE, MUMFORD,* NELSON,
RANDOLPH,* SAWYER, SHAW, SHEFFEY, _J. Smith_, S. SMITH, _Troup_, VAN
DYKE,* _Van Horne_, and WYNN*; of whom those marked (*) have not
appeared in their seats during the present session, and those in
_italic_ are known to be absent from the city.]
The House then adjourned, at a quarter before six, after a session of
nineteen hours, during the whole of which time the Speaker presided in
the Chair with dignity and moderation, to Friday next.
FRIDAY, January 5.
Another member to wit, from Delaware, NICHOLAS VAN DYKE, appeared, and
took his seat in the House.
_Claim of Elizabeth Hamilton._
Mr. JOHNSON, from the Committee of Claims, made a report on the
petition of Elizabeth Hamilton, referred on the 5th ultimo; which was
read, and referred to a Committee of the Whole on Wednesday next. The
report is as follows:
That it is stated by the petitioner, that her late husband,
Alexander Hamilton, served as Lieutenant Colonel in the Army
of the United States during the Revolutionary war; that, in
common with other officers he was entitled to five years' full
pay as commutation for half-pay during life; that her husband,
being in Congress at the time the resolution passed making
this provision in favor of the officers of the Revolution, in
a letter to the Secretary of War he relinquished his claim
to commutation; and the petitioner prays for the amount of
said commutation. It does not appear, from any evidence
from the Secretary of War or of the Treasury, that the late
Colonel Hamilton ever did relinquish his right to half-pay or
commutation, nor can the committee believe that it would be
proper or generous that such relinquishment should be relied on
as a bar to a just claim upon the United States for meritorious
services against the representatives of such claimant. It
appears, from a letter from the Secretary of the Treasury, that
the late Colonel Hamilton received pay as an officer up to the
end of February, 1782, and no later. And there is no evidence
upon the Treasury books, or books of the War Office, whether at
this or what period Colonel Hamilton resigned. The committee,
however, have been furnished with a document, which induces
the belief that Colonel Hamilton did not resign his commission
until after the 28th day of October, 1783, which document is in
these words: "In pursuance of an act of Congress of the 30th
day of September, 1783, Lieutenant Colonel Hamilton is to take
rank as Colonel by Brevet, in the Armies of the United States
of America. Signed at Princeton, October 28, 1783, by Elias
Boudinot, President," &c.
The committee are of opinion, that the resolution of Congress,
upon a liberal construction, did not require actual service,
and that the officer should be in the receipt of his pay
to entitle him to commutation; but that he should have a
commission, and be at all times liable to be called on to
perform the duties of his station. The committee are confirmed
in this opinion, when they recollect the situation of the
United States and the Army in the year 1783, and in fact, from
the capture of Cornwallis and his Army at Little York, in the
State of Virginia, in the year 1781. But this claim is, like
all other claims of this description, barred by the statute of
limitation. The following resolution is offered:
_Resolved_, That the prayer of the petition ought not to be
granted.
MONDAY, January 15.
Two members, to wit: from New York, GURDON S. MUMFORD, and from
Kentucky, MATTHEW LYON, appeared, and took their seats in the House.
TUESDAY, January 16.
Another member, to wit, from South Carolina, RICHARD WYNN, appeared,
and took his seat in the House.
WEDNESDAY, January 17.
A new member, to wit, DAVID S. GARLAND, returned to serve as a member
of this House for the State of Virginia, in the place of Wilson Carey
Nicholas, resigned, appeared, produced his credentials, was qualified,
and took his seat.
WEDNESDAY, January 31.
_Officers of the Revolution._
Mr. NELSON, from the committee appointed on the twenty-fourth instant,
made a report on the several petitions of the surviving officers of the
late Revolutionary Army; which was read, and referred to a Committee of
the Whole on Monday next. The report is as follows:
That, by a resolution of Congress of the 15th of May, 1778, all
military officers who then were, or should thereafter be, in
the service of the United States, and who should continue in
service during the war, and not hold any office of profit under
the United States, or any of them, should, after the conclusion
of the war, be entitled to receive, annually, for the term of
seven years, if they should live so long, one-half of the then
pay of such officers: provided that no general officer of the
cavalry, artillery or infantry, should be entitled to receive
more than the one-half part of the pay of a colonel of such
corps, respectively; and, provided that the said resolution
should not extend to any officer in the service of the United
States, unless he should have taken an oath of Allegiance, and
should actually reside within some one of the United States.
That, by a resolution of Congress of the 11th of August, 1779,
it was resolved that the half-pay provided by the aforesaid
resolution of the 15th of May, 1778, should be extended to
continue for life.
That, by a resolution of Congress of the 21st of October, 1780,
it was provided that the officers who should continue in the
service to the end of the war should be entitled to half-pay
during life, to commence from the time of their reduction.
That, by a resolution of Congress of the 17th day of January,
1781, all officers in the hospital department, and medical
staff, thereinafter mentioned, who should continue in service
until the end of the war, or be reduced before that time as
supernumeraries, should be entitled to receive during life, in
lieu of half-pay, the following allowances, viz: The director
of the hospital, equal to the half-pay of a lieutenant-colonel;
chief physician and surgeons of the army and hospital, and
hospital physicians and surgeons, purveyor, apothecary, and
regimental surgeons, each equal to the half-pay of a captain.
That, by a resolution of Congress of the 22d day of March,
1783, it was provided that such officers as were then in
service, and should continue therein until the end of the war,
should be entitled to receive the amount of five years' full
pay in _money_, or securities on interest at six per centum per
annum, as Congress should find most convenient, instead of the
half-pay promised for life by the resolution of the 21st day
of October, 1780; the said securities being such as should be
given to the other creditors of the United States: provided it
should be at the option of the lines of the respective States
and not of officers individually in those lines, to accept or
refuse the same; and provided, also, that their election should
be signified to Congress, through the Commander-in-Chief, from
the lines under his immediate command, within two months, and
through the commanding officer of the Southern Army, from those
under his command, within six months from the date of the
resolution.
That the same commutation should extend to the corps not
belonging to the lines of any particular State, and who were
entitled to half-pay as aforesaid: the acceptance or refusal
to be determined by the corps, and to be signified in the
same manner, and within the same time, as above mentioned;
that all officers belonging to the hospital department, who
are entitled to half-pay by the resolution of the 17th of
January, 1781, might collectively agree to accept or refuse
the aforesaid commutation, signifying the same through the
Commander-in-Chief, within six months; that such officers as
had retired at different periods entitled to half-pay for
life, might, collectively, in each State of which they are
inhabitants, accept or refuse the same; their acceptance
or refusal to be signified by agents authorized for that
purpose, within six months; that with respect to such retiring
officers, the commutation, if accepted by them, should be in
lieu of whatever might be then due to them since the time of
their retiring from service, as well as what might thereafter
become due; and that as soon as their acceptance should be
signified, the Superintendent of Finance should be, and he was
thereby, authorized to take measures for the settlement of
their accounts accordingly, and to issue to them certificates
bearing interest at six per cent.; that all officers entitled
to half-pay for life, not included in the preceding resolution,
might, also, collectively, agree to accept or refuse the
aforesaid commutation, signifying the same within six months
from the passage of said resolution. The petitioners state,
and the fact is of too general notoriety to be disputed, that
although they confidently expected, at the time they were
compelled from imperious necessity to accept the sum in gross
in lieu of half-pay for life, that it would be paid to them
in reality, and not by a fresh promise without any sufficient
guarantee for its due performance, yet they were compelled
to receive certificates, which, for want of any specific
provision for the payment of them, or the interest accruing on
them, were immediately depreciated to five for one, and, by
degrees, to ten for one, in exchange for money. They therefore
pray that half-pay for life, to commence from the time of the
reduction of the Army, may be granted to them, according to the
solemn stipulations entered into with them by Congress, by the
resolutions before referred to; deducting therefrom the five
years' full pay received by them in depreciated paper, by way
of commutation.
It is well known to your committee, and to the whole nation,
that the far greater part of the officers were compelled by
hard necessity to dispose of their commutation certificates
at prices infinitely below their nominal amount; that this
did not proceed from want of patriotism, of which they had
beforehand given proofs most unequivocal, or of want of
confidence in their Government; but that, after having spent
the vigor of their manhood in the service of their country,
they returned to the walks of civil life, (many of them maimed,
and scarcely able to halt along,) ignorant of what was passing
or likely to pass in the councils of their country; the griping
hand of poverty bore hard upon them; and, unacquainted as they
necessarily were with civil affairs, they fell an easy prey to
the wiles of the artful and insidious speculator, who was lying
in wait to fatten upon their hard earnings. Under circumstances
like these, it would have been strange indeed, if they had
kept their certificates in their pockets. No, the thing was
impracticable; go they must, for whatever they would bring, and
be the consequences whatever they might.
Upon the whole, the committee are of opinion that the contract
entered into by Congress with the officers of the late
Revolutionary Army, for giving them half-pay for life, has
not been substantially complied with by the Government. They,
therefore, recommend the following resolution:
_Resolved_, That the prayer of the petitioners is reasonable,
and ought to be granted.
FRIDAY, February 9.
_Robert Fulton and Torpedoes._
The following letter was laid before the House:
"KALORAMA, _February 9, 1810_.
"SIR: Having published a pamphlet explaining my experience on
the practice and effects of torpedoes, I beg leave to present
you, and each member of the House of Representatives, one copy.
Should the House consider this subject of sufficient interest
to merit further explanation, I shall be happy to give a
lecture at such time and place as may be most convenient, in
which I will exhibit the various modes of attack with torpedoes
and harpoon guns, as prepared for action, with such models and
demonstrations as will lead to a clear understanding of the
subject.
"I have the honor to be, &c.,
"ROBERT FULTON.
"Hon. SPEAKER _House of Reps._"
Leave was given to present the pamphlets mentioned in the above letter,
as requested.
_Navigation of the Mobile._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the House of Representatives of the United States_:
I transmit to the House a report of the Secretary of State,
complying with their resolution of the 22d of January.