H. OF R. Amendment to the Constitution. ber of persons from whom a choice should be made. If adopted, it will give the House of Representatives a right to vote for 176 persons, as no candidate might have more than one vote. Mr. NICHOLSON believed the proposition of the select committee would reduce them to the same situation as if of the 176 votes given, one was given to each candidate, no one would be higher than another. The proper reply to this remark was, that it was an extreme case, not likely to happen. Mr. N. said, he was not so anxious that his amendment should succeed, as that the principle should be fixed, in that House, some way or other. Mr. GODDARD said, though he would not pledge himself to vote for the proposed amendment to the Constitution, in any shape whatever, yet he was in favor of the amendment offered by the gentleman from Maryland. He thought with him that there would be no great danger from the latitude allowed the House of Representatives, as they were chosen by the people as well as the Electors; nor could he perceive why they were more to be distrusted than the Electors. But the principal reason that operated with him in favor of the amendment was, that it extended the right of suffrage in the House of Representatives. It is well known that our system is that of a Confederation. There appeared to him no danger of 176 persons being voted for; the nature of the Government was such that but few persons would be voted for. But, if no choice is made by the Electors, he wished the right of the House of Representatives to be extended for this reason, because it will increase the power of the small States. As he conceived, the original proposition went effectually to impair the rights of the small States; and, indeed, any amendment would have that effect; but the amendment of the gentleman from Maryland having this effect as little as possible, he should vote for it. Mr. SMILIE Would wish one principle altered in the report of the select committee, viz: that which confined the election of the President to the three highest persons voted for. It was impossible for human wisdom to provide for all cases that might occur. Their time was not well spent in providing for cases extremely remote. He had but one object in view, the designation of office; and the more simple the proposition, the more likely they were to obtain this object. It should be recollected that the Constitution was the act of the people, and ought not to be altered till inconveniences actually arise under it. He believed, though particular parts might be defective in theory, they ought not to be changed till practical inconveniences had been experienced. No such inconvenience had yet been felt from choosing the President from the five highest on the list. Is it, then, prudent to embarrass the great principle, in which they generally concurred, with incidental propositions, when there was no necessity for them? This amendment was to obtain the assent of thirteen Legislative bodies before it would be binding. The simpler, then, the proposition, the more likely it was to succeed. His idea, there OCTOBER, 1803. fore, was to leave the Constitution as it now stood, so far as it related to a choice being made from the five highest, and only so far to change it as related to a designation of the office. Mr. SANFORD said the great object of the amendment ought to be to prevent persons voted for as Vice President from becoming President. If the amendment effected this, it was sufficient. All other innovation upon the Constitution was improper; and no danger could arise from extending the right of the House of Representatives to making a choice from the five highest. Mr. RODNEY said that in the select committee he had been in favor of the number stated in the Constitution. He was not for innovating on the Constitution one tittle more than was absolutely necessary. As to the mere designation of office, the people looked for and expected it; and if that were obtained, they would be satisfied. He well knew that if amendments to this simple proposition were multiplied, objections to the whole would also be increased. Having been originally in favor of five, and thinking the inconveniences apprehended by some gentlemen not likely to occur, he should vote in favor of the amendment of the gentleman from Maryland, principally for the reason assigned by the gentleman from Connecticut, that it would allow to the smaller States a larger scope of choice. Mr. ELLIOT hoped the amendment of the gentleman from Maryland would not prevail; and coming, as he did himself, from a small State, he trusted the House would pardon him for assigning his reasons for that hope. He felt as much confidence in the House of Representatives as the gentleman from Connecticut; but he was of opinion that their discretion ought to be limited. The amendment will give the House of Representatives the unqualified power of electing from the whole number on the list of persons voted for as President, and on that ground he opposed it. It was said to be a question of larger and smaller States, and those who represent the smaller States were called upon to check the usurpation of the larger States. Our system was undoubtedly federative, and there might be danger of an usurpation of the large States if the small ones were not protected by the Constitution. His wish was that they might be so guarded. But he still thought the discretion of the House of Representatives ought to be limited. When this subject was first discussed, an observation of a gentleman from Virginia (Mr. CLOPTON) had struck him with force. That gentleman had correctly stated that, according to the proposition then before the House, one candidate might have eighty-seven votes, another eighty-six, and three have one vote each, and a choice be made from among the candidates having but one vote. Should the amendment of the gentleman from Maryland obtain, the same right would exist in the House of Representatives. But the gentlemen asks if any House of Representatives will dare to elect a person having but one vote. He hoped they always would dare to do their duty, and it would then be their Constitutional right. But Mr. E. thought they ought not to possess this discretion. Gentlemen further say the great object is a designation of the office. It is so. It was his sincere wish that the simple object should be obtained. But he believed there would be no danger in adding to the proposition an amendment restricting the number from which the choice should be made. Mr. G. W. CAMPBELL said he, too, represented a small State, and was anxious to preserve the rights of the small States. But in a great Constitutional question, while these rights were not lost sight of, principle ought also to be regarded. This he conceived to be his duty, whatever effect it might have upon the State he represented. For this reason he considered it proper to express his opinions on the present occasion. It was a vital principle to preserve the Constitution as pure as possible. This rendered it necessary to show that the proposition of the gentleman from Pennsylvania (Mr. CLAY) came nearer to the principle of the Constitution than that offered by the gentleman from Maryland. He had already observed that, there being at present no designation, four was the smallest possible number from which a choice could be made: to this number but one was added, making, altogether, five. In future elections there will be one hundred and seventy-six Electors, and if there be a designation of office, but one person can have a majority. To confine the choice to two persons will, therefore, in principle, approach as near as possible to the original principle of the Constitution. Mr. C. was in favor of preserving that part of the Constitution which directed the election to be made by States, wishing as little innovation as possible on the principles of the Constitution. He did not, however, conceive a mere change of words dangerous, but the establishment of a principle that deprived the people of the power of electing those who possessed the largest share of their confidence. He was decidedly in favor of whatever had this effect, as according with the true spirit of the Constitution; and he was, therefore, opposed to the amendment of the gentleman from Maryland. His own opinion, too, was that it was best to express in one article whatever related to the election of President and Vice President, than refer to the Constitution; by which the provisions on that subject would be rendered much clearer. The question was then taken on Mr. NICHOLSON's amendment, and lost-ayes 29, noes 77. Mr. SMILIE, in order to try the principle, would move to strike out "three," and insert "five." Mr. FINDLEY seconded the motion. Mr. DAWSON would only repeat a remark which he had already made. The select committee, in proposing three as the number from which an election should be made, did not consider themselves as departing in the least from the spirit of the Constitution; as, when both President and Vice President were voted for without discrimination, the choice was made from five. Mr. SMILIE observed he did not know that there would be any danger in this innovation; but it was his wish not to alter the Constitution, except in cases of necessity. H. OF R. Mr. GODDARD said that he was in favor of that amendment for the same reason that he had been in favor of that proposed by the gentleman from Maryland. The gentleman from Tennessee (Mr. CAMPBELL) has told us that it is our duty to act, not from motives of interest, but duty. Mr. G. considered it as his duty so to act as to protect the interests of his constituents, and of the State which he had the honor to represent. The gentleman further observes that in limiting the number from which a choice may be made, we shall insure a nearer approach to the will of the people. Now what is that will, but the will of the large States of Virginia, New York, and Pennsylvania? He apprehended that there might be cases where the interests of the smaller States might be materially affected. The larger States will generally have first nomination of the persons voted for as President and Vice President. If we dislike all the candidates, neither of whom shall have a majority of all the electoral votes, we may select from among them the one that best pleases us. He considered the Constitution so framed as to guard all the States. And if gentlemen are so tenacious of its vital principle, let them suffer it to remain as it is. But if there is a determination to alter it, which he feared was the case, he hoped no greater alteration would be made than was necessary to secure the end which gentlemen professed to have in view. The greater the number of candidates, the greater, in his opinion, would be the influence of the smaller States. Nor could there be any danger from reposing a discretion in the House of Representatives, as they were elected by the people as well as the Electors; and when it was known by the people that on them devolved the eventual election, they would be chosen in reference to the discharge of this duty, as well as the other duties constitutionally imposed upon them. Mr. ALSTON was opposed to the amendment offered by the gentleman from Pennsylvania (Mr. SMILIE) to the amendment of the select committee, because in his opinion it would have a tendency to bring the election of a President of the United States more frequently into the House of Representatives, than otherwise it would be brought; he was as much disposed to guard against the influence of the large States as any member upon that floor. The gentleman from Connecticut last up (Mr. GODDARD) was in favor of the amendment, because he thought it calculated to lessen the influence of larger States. For his part, Mr. A. thought very differently from that gentleman; he believed that, provided the amendment should be acceded to, it would be an inducement to any one of the large States to prevent an election of President by the Electors of the several States, that if the votes of a large State should be withheld from any of the candidates proposed as President, it would prevent such candidate from obtaining a majority of all the votes of the Electors. What then, Mr. A. asked, would be be the consequence? The choice would have to be made by that House, which circumstance he never wished to witness again; this he conceived to be an important point to guard against as much as possible. OCTOBER, 1803. LOUISIANA TREATY. The House resolved itself into a Committee of the Whole on the Message from the President of the United States, of the twenty-first instant, enclosing a Treaty and Conventions entered into and ratified by the United States and the French Republic; to which Committee of the whole House was also referred a motion for carrying the same into effect. Mr. G. GRISWOLD said he had hoped that some gentleman, in favor of the resolution under consideration, would have risen to assign his reasons in favor of it. But no gentleman friendly to its adoption having risen, and feeling himself embarrassed, he would take the liberty of suggesting his doubts as to the propriety of the resolution. He hoped the Committee would have the candor to believe that, in stating those doubts which hung upon his mind, his object was not to delay the progress of the measures contemplated, but to gain information. He believed the fewer the number of the candidates or persons voted for, that the choice of President was confined to, the less chance there would be for that House to be called upon to make it. Should they adopt the amendment proposed, a strong inducement would be held out to any one of the large States, which might be displeased with the candidate proposed as President, to withhold the vote of their State, by which a majority of the votes of all the Electors would not be given to any one candidate, because the whole vote of a large State given to their favorite would be certain to bring him within the five highest upon the list; but, on the contrary, should they confine the choice to be made out of the two highest upon the list, agreeably to the proposition of another gentleman from Pennsylvania, (Mr. CLAY) which had been withdrawn, many still would be more likely to promote the election of one of the candidates most likely to get the largest In reflecting, for the short time during which number of votes. He was therefore much better the subject had been before him, he had not been pleased with the motion which had been with-able to pursue it in all its bearings, nor to solve all drawn. He should therefore give his vote against the difficulties it presented. He had first asked the present proposition, and should it be rejected, himself where was to be found the Constitutional he would himself renew the proposition made by power of the Government to incorporate the Terthe gentleman from Pennsylvania on the other ritory, with the inhabitants thereof, in the Union side of the House, (Mr. CLAY,) should it not be of the United States, with the privileges of citizens renewed by the gentleman himself. of the United States-is there any such power? And if there is, where is it lodged? In giving his opinion on the Constitutional right of making treaties, he would say that it was vested in the President and Senate, and that a treaty made by them on a subject constitutionally in their treatymaking power, was valid without the assent of this House. This House had, to be sure, the physical power of refusing the necessary means to carry treaties into effect; but this power was essentially different from that conferred by the Constitution. But if the treaty-making power should be exceeded, if it should be undertaken to make it operate upon subjects not constitutionally vested, he had a right to say that it was his duty not to carry it into effect. Even should its provisions be highly beneficial, it was no less their Constitutional duty to resist it. He would not undertake to say that his mind was perfectly fixed, but he entertained doubts-serious doubts; and he hoped gentlemen would candidly give them answers. Mr. RANDOLPH said he came to the House under the impression that another subject would have occupied their attention on account of its primary importance, not meaning, however, to disparage the importance of an amendment to the Constitution. But on a subject which must be discussed in a few days, if at all, it was improper that time should be lost. The proposed amendment to the Constitution was not, he believed, so extremely pressing as to require immediate attention. The subject to which Mr. R. had expected the attention of the House, would have been first directed was the Treaty with France. Hoping that the Committee would have decided on the amendment at an early hour, he had refrained from any motion. But perceiving that a decision was not likely soon to be made, he would move that the Committee should rise, for the purpose of taking up the treaty respecting Louisiana. Mr. DAWSON opposed the rising of the Com mittee. The question was taken on Mr. RANDOLPH'S motion, and carried—yeas 60, nays 55. When the Committee rose. And on motion, the House adjourned. TUESDAY, October 25. He found in the third article of the treaty that "The inhabitants of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." The SPEAKER laid before the House a letter from Here then is a compact between the French the Secretary of the Treasury, accompanying a Government and that of the United States, to report and sundry documents, marked A, B, C, D, admit to citizenship persons out of the jurisdiction E, F, G, and H, prepared in pursuance of an act, of the United States, as it now is, and to admit terentitled "An act to establish the Treasury Depart-ritory out of the United States to be incorporated ment;" which were read, and ordered to be referred to the Committee of Ways and Means. into the Union. He did not find in the Constitution such a power vested in the President and OCTOBER, 1903. The Louisiana Treaty. H. OF R. Spain or any of her colonies, loaded only with the produce or manufactures of Spain or her colonies, shall be admitted during the space of twelve years in the port of New Orleans, and in all other legal ports of entry within the ceded territory, in the same manner as the ships of the United States coming directly from France or Spain, or any of their colonies, without being subject to any other or greater duty on merchandise, or other or greater tonnage than paid by the citizens of the United States." Senate. If such a power be not expressly vested, it must be reserved to the people. It was not consistent with the spirit of the Constitution that territory other than that attached to the United States at the time of the adoption of the Constitution should be admitted; because at that time the persons who formed the Constitution of the United States had a particular respect to the then subsisting territory. They carried their ideas to the time when there might be an extended population; but they did not carry them forward to the time when an addition might be made to the Union of a territory equal to the whole United States, which additional territory might overbalance the existing territory, and thereby the rights of the present citizens of the United States become incorporated with the United States, there swallowed up and lost. Such a measure could not be consistent either with the spirit or the genius of the Government. For these reasons, Mr. G. was of opinion that no such power was delegated to any department of the Government; but if such power was delegated to any department, it must, in his opinion, be to the Legislature, as he should afterwards notice. It was not consistent with the spirit of a republican government that its territory should be exceedingly large; for, as you extend your limits you increase the difficulties arising from a want of that similarity of customs, habits, and manners, so essential for its support. It was certainly difficult to draw the precise line; but there was, notwithstanding, one beyond which we should not go. But if the right of extending our territory be given by the Constitution, its exercise is vested in the Legislative branches of the Government. In the 3d section of the fourth article of the Constitution it is said, "New States may be admitted by the Congress into this Union." Congress may admit new States, but, according to my construction of this article, are confined to the territory belonging to the United States at the formation of the Constitution-to the territory then within the United States. Existing territory, not within the limits of any particular States, may be incorporated in the Union. He contended, therefore, that the power to incorporate new territory did not exist; and that, if it did exist, it belonged to the Legislature, and not the Executive, to incorporate it in the Union. If this were the case, it was the duty of the House to resist the usurped power exercised by the Executive. There was another ground as to the constitutionality of the treaty ; at least one which excited doubts in his mind, which he hoped gentlemen would take up and remove. In the 7th article of the treaty are these words: "As it is reciprocally advantageous to the commerce of France and the United States to encourage the communication of both nations for a limited time in the country ceded by the present treaty, until general arrangements relative to the commerce of both nations may be agreed on: it has been agreed between the contracting parties, that the French ships coming directly from France or any of her colonies, loaded only with the produce and manufactures of France or her said colonies; and the ships of Spain coming directly from This article gives to the ships of France and Spain the same right of entering the ports of the ceded territory with our own vessels; and it precludes the ships of all other nations from the same right. Now if, as gentlemen contend, the new ceded territory with the inhabitants should be will be ports of entry in the United States into which French and Spanish vessels may enter on terms different from those on which they may enter other ports of the United States. The inference was that here was a favor granted to the ports of New Orleans over other ports. This was against an important principle of the Constitution; for, in the ninth section of the first article, we find, "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." This treaty then becomes a law of the land. It has made a commercial regulation. It gives to the ports of the ceded territory a preference to any other ports. Because the produce of France and Spain can be carried cheaper to their ports than to any other. If the principle contended for by gentlemen in favor of the treaty is admitted, I think I see a fatal blow proposed against the Constitution of the United States, by destroying the reciprocity of interest that unites at present the different members of the Union. Perhaps I see wrong. Mr. RANDOLPH rose for the purpose of satisfying, so far as was in his power, the doubts expressed by the gentleman from New York. (Mr. G. GRISWOLD.) He had listened with great pleasure to the candid exposition which the gentleman had given of his objections, and from the temper which he had manifested, Mr. R. relied on being able to satisfy some of his scruples on this subject. The objections which have been urged to the motion before the Committee, resolved themselves into arguments against the constitutionality, and arguments against the expediency of the treaty proposed to be carried into effect. As it would be needless to repel objections of this last kind, unless those of the first description could be satisfactorily answered, he should first reply to the observations which had been made on the Constitutional doc trine. He understood the gentleman from New York as denying that there existed in the United States, as such, a capacity to acquire territory; that, by the Constitution, they were restricted to the limits which existed at the time of its adoption. If this position be correct, it undeniably follows that those limits must have been accurately defined and generally known at the time when the Government took effect. Either they have been particularly described in the Constitutional compact, or H. OF R. The Louisiana Treaty. OCTOBER, 1803. the old Confederation-a mere government of States-a loosely connected league-all of whose powers, with many more, are possessed by the present Federal Government-if this mere alliance of States could rightfully acquire territory in their allied capacity, much more is the existing Government competent to make such an acquisition. To me the inference is irresistible. are referred to as settled beyond dispute, and uni- between the northern boundary of the Spanish versally acknowledged. But this was not the fact, possessions and what we contended was the southin either case. The Constitution not only did not ern limit of Georgia-the United States asserting describe any particular boundary, beyond which that the country in question was the property of the United States could not extend, but our bound- the United States, in their Confederate capacity, ary was unsettled on our northeastern, southern, and the State of Georgia claiming it as hers. Aland northwestern frontier, at the time of its adop- though I have always advocated the claim of that tion. But perhaps we shall be told, that, although State, it never was on the principle of an incapacity our limits were in dispute with our English and in the United States to acquire territory, or any Spanish neighbors, still there were certain bound- other which affects the question now before us. It aries specified in the Treaty of Paris, of 1783, which is true, sir, we appointed Commissioners to settle were the actual boundaries of the United States. the matters in dispute, amicably, with Georgia; It was, however, a well-attested fact-one of which but in the meantime we assumed the jurisdiction, we possessed official information from the Ex- erected a government over the country, and thereecutive-that the limits assigned us by that treaty by established the principle that the United States, were incapable of being established. A line run- as such, could acquire territory; the country in ning west, from the Lake of the Woods, not touch- question, as we contended, never having been ining the Mississippi at all: it followed that the Uni- cluded within the limits of any particular States, ted States were without limits beyond the source and being ceded to the Confederacy by the Treaty of the Mississippi. It will not be denied, that, of 1783. But perhaps it may be answered, that among the powers which the Government pos- this acquisition, being made anterior to the date of sesses under the Constitution, there exists that of the present Constitution, cannot affect any limitasettling disputes concerning our limits with the tion or restriction, which it may have provided in neighboring nations. This power was not only relation to this subject; and that to prove that necessary in relation to the disputed boundaries the old Confederation could acquire territory, is on the side of Canada and Florida, but was indis- not to prove the same capacity in the present pensable to a government over a country of inde- system of Government. To this I reply, that the finite extent. The existence of this power will Constitution contains no such expressed limitation, not be denied it has been exercised in ascertain-nor can any be fairly inferred from it: and that if ing our northeastern and southern frontier, and it involves in it the power of extending the limits of the Confederacy. Let us suppose that the Commissioners, under the Treaty of London, had determined the river St. John or St. Lawrence to be the true St. Croix-would not that part of the province of New Brunswick or Quebec which lies on this side of those rivers at this time have been a part of the United States? Suppose the northern boundary of Florida had been fixed, under the Treaty of San Lorenzo, to extend from the Atlantic ocean to the Gulf; would not all the country north of this line and east of the Mississippi-part of the very country conveyed by the treaty lately negotiated, and which gentlemen conceived we could not constitutionally hold-would not that country, at this time, compose a part of the United States? That the Constitution should tie us down to particular limits, without expressing those limits; that we should be restrained to the then boundaries of the United States, when it is in proof to the Committee that no such bounds existed, or do now exist, was altogether incomprehensible and inadmissible. For, if the Constitution meant the practical limits of the United States. the extent of country which we then possessedour recent acquisitions, on the side of Canada and the Natchez, could not be defended. But, sir, said Mr. R., my position is not only maintainable by the reason of the Constitution, but by the practice under it. Congress have expressed, in their own acts, a solemn recognition of the principle, that the United States, in their Federative capacity, may acquire, and have acquired, territory. It will be recollected, that adverse claims once existed between the United States and the State of Georgia, in relation to a certain tract of country But the gentleman does not rest himself on this ground alone. He does not embark his whole treasure in a single bottom. Granting that the United States are not destitute of capacity to acquire territory, he denies that this acquisition has been made in a regular way-Congress, says he, alone is competent to such an act. In this transaction he scents at a distance Executive encroachment, and we are called upon to assert our rights, and to repel it. If any usurpation of the privileges of Congress, or of this House, be made to appear, I pledge myself to that gentleman to join him in resisting it. But let us inquire into the fact. No gentleman will deny the right of the President to initiate business here, by message, recommending particular subjects to our attention. If the Government of the United States possess the Constitutional power to acquire territory, from foreign States, the Executive, as the organ by which we communicate with such States, must be the prime agent, in negotiating such an acquisition. Conceding, then, that the power of confirming this act, and annexing to the United States the territory thus acquired, ultimately rests with Congress, where has been the invasion of the privileges of that body? Does not the President of the United States submit this subject to Congress for their sanction? Does he not recognise the principle, which I trust we will never give up, |