Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.)

Sir, if the Spanish nation has any feeling for its sovereignty, it would spurn your request. Only suppose that nation to possess the same feelings which actuate every breast in this House; which actuate the American people. Suppose the claim of Mr. Burr to citizenship in Britain, on the ground of once a subject always a subject, had been recognized by the British Government. Suppose that he was suffering in chains in some of your prisons, and because they had heard that Mr. Burr might have been innocent, the British Government had asked his release, would not the people of America have spurned the request as an indignity to the nation? And may we not suppose that these proud Spaniards, as they are called, may have feelings of a like nature? I believe, sir, that the course proposed would only add rigor to their sufferings, weight to their chains.

Mr. Livermore asked if the committee which made this report had not before it evidence that certain British subjects concerned in Miranda's expedition had been liberated on the application of some officers of that nation? If they had it would be a fair answer to the eloquent speech of the gentleman from South Carolina.

Mr. Randolph said he did not think that the information asked for by the gentleman was at all material to this case. It was a matter of no consequence at all, as respected the statement made by the gentleman from South Carolina on (he had no doubt) very good grounds. What, said Mr. R., has been the situation of Great Britain in relation to Spain? Great Britain, at the time the expedition was undertaken, was an enemy of Spain – was at actual war with Spain – and therefore in a subject of Great Britain it might have been highly meritorious to annoy Spain, either at home or in her colonies to the utmost extent in his power, without any direct authority from his Government. Subsequently to that time, however, Great Britain has become the ally of Spain in consequence of the revolution; and at that time Great Britain obtained from persons exercising the authority of government in Spain the release of these prisoners, which it is perfectly natural Spain should then have granted. But suppose, instead of that change having taken place in the relations between Great Britain and Spain, Bonaparte had quietly succeeded in putting King Joseph on the throne of Spain and the Indies, and applications had then been made; or suppose that the application had been deferred until now, and the power of the House of Bonaparte was as complete over the colonies in South America as we have every reason to believe it is over the European possessions of the mother country, would the British subjects in that case have been released? It is an unfortunate circumstance that no question can be agitated in this House and tried upon its own merits; that every thing which is, has been, or may be, is to be lugged in on the question before us, to the total exclusion of the merits of the case, and in this way, instead of a session of three and six months for doing the business of the nation, if every question is to be tried in the manner in which it appears to me this has been, we may sit to all eternity and never get through it.

I lay no claim to greater precision than other men; but really I cannot perceive what kind of relation, what kind of connection exists between most of what I have heard on this subject, and the true merits of the case. Gentlemen get up and abuse the Spanish Government and people, and what then? Why, it appears all this is preliminary to our making an humble request of this Government and people that they shall grant us a particular boon. To be sure, sir, all this time we do plaster ourselves unmercifully – we lay it on with a trowel – and gentlemen seem to think that if we sufficiently plaster ourselves, our President, and people, and be-devil every other Government and people, it is sufficient to illuminate every question. And this is the style in which we speak to Governments perfectly independent of us! – A very wise mean, to be sure, of inducing them to grant the pardon of these people as a favor to us. Sir, it would be a strange spectacle, to be sure, when this Minister that is to be, this sort of anomalous messenger whom you are going to send, I know not exactly to whom; whether to the Junta, or persons exercising the power of government in the provinces, or to the Government in Europe; when this Minister goes to Carthagena or elsewhere, if he should carry to the Viceroy along with his credentials a file of papers containing the debates on this question. Why, sir, like Sir Francis Wronghead, we appear all to have turned round. My honorable friend, the gentleman from South Carolina, (Mr. Taylor,) spoke of the crimes of these men. Gentlemen on the other side, who wish them to be pardoned, tell you of nothing but of their innocence, and the injustice of those who condemn them and now have them under punishment. Two more such advocates as have appeared in favor of this proposition would damn the best cause ever brought before any House or any court in Christendom. The gentleman from New York, (Mr. Emott,) who spoke yesterday, certainly very pertinently, and very handsomely, tells the House that in this case no other money than that of the United States, will be received; that with a sort of Castilian fastidiousness, those persons acting for the Government of Spain will not touch any money which shall not be offered in the quality of public money. I believe no such thing; and moreover, I wish it to be distinctly understood that the question of money is not the question with me; and that to suppose it necessary for the Government of the United States to interfere for the purpose of raising so pitiful a sum as $3,500 for the relief of these unfortunate men, whose situation I most seriously deplore, is a libel upon the charity of this country. I believe, notwithstanding the public impression on this subject against the petitioners, that the money could be raised in half an hour in any town in the United States. I believe it might be raised in that time in the city of Washington. It is not a question of the amount of money wanted; it is, whether the Government of the United States shall lend its countenance to persons situated as these unfortunate people are? Sir, had we at that time been at war with Spain, as Great Britain, something might be said in favor of these persons. But we were not at war with Spain, and these men knew it; and I believe they knew at least as well as I know, that when a man is recruited for public service, as they say they thought to be their case, he is immediately taken before a justice of the peace and sworn. This part of the ceremony, however, is not stated to have taken place. To be sure, sir, the gentleman from New York (Mr. Emott) said, I believe, every thing that could be said in favor of those unfortunate people, and really almost convinced me that we ought to make this interference; but unfortunately for him and for his cause, other advocates rose up in its favor and placed the subject in a situation not only as respects the majority of this House, but as respects that Government with whom intercession is to be made, which will completely foreclose any attempt at relieving the sufferers. It is not possible that the majority of this House, or that the Spanish Government, can be affected in any other manner than with disgust and indignation at such stuff. The gentleman from New York told us that these were ardent young men, who were anxious to go to Caraccas for the purpose, I think, of correcting the despotism which existed in that country; or otherwise, political Quixotes. This, I take it, will operate little in their favor with the Spanish Government, however it may in ours. I confess I feel very little sympathy for those who, overlooking their own country, and the abuses in their own Government, go in search of political adversaries abroad – go a tilting against political despotisms for the relief, I suppose, of distressed damsels compelled to live under them.

The question was now taken, and the votes being affirmative 62, negative 61, the Speaker voted in the negative – the votes then being equal, the question was lost.

Monday, June 19

The Batture at New Orleans

The House proceeded to consider the resolution submitted by Mr. Macon, on the sixteenth instant, in the words following, to wit:

"Resolved, That so much of the message of the President of the United States of the seventh of March, one thousand eight hundred and eight, as relates to the batture in the suburbs of St. Mary's, adjoining New Orleans, and the documents accompanying it, together with the petitions of Edward Livingston, and the petitions of the citizens of New Orleans on the same subject, and the documents which accompanied the same, be referred to the Attorney-General of the United States, and that he be instructed to receive and collect such other testimony as may be necessary to ascertain the title of the United States to the before-mentioned batture, and that he be directed to report to this House, at the next session of Congress, his opinion as to the validity of the claim of the United States to the said batture."

Mr. Burwell thought that this was not the proper course to pursue; but that the course recommended at the last session was the one, viz: to give the petitioners the right of appeal from the decision of the Orleans court to the Supreme Court, or to give the United States the same right, should the decision be against them. He could see no advantage in the procrastination now proposed, nor any injury to the United States or the city of New Orleans, in the course which he advocated. He doubted, although the letter of the law of 1807 might cover this case, whether it was ever intended that that law should operate as this had done. My intention, said he, in voting for it, was that it should apply exclusively to the Western lands, commonly called the Yazoo lands, and such other lands as were occupied by hundreds who might be formidable from their numbers. To undertake jurisdiction on questions of property is taking upon ourselves the functions of another department of the Judiciary. The case involves important points of law – and let me ask, whether the gentlemen in this House are so well read in law as to be able to decide such an important point as this? It does appear to me that on all the questions of private property arising in the United States, where the question of right is not to be brought before this House, we ought to consult the convenience of the parties by promoting dispatch. On the question whether this property belong to the United States or to the petitioners I am completely ignorant. Nor would I have it inferred that I believe the petitioner to have a right to the property; I take it that the claim of the United States must be good, or the inhabitants of Orleans would not be so zealous in the support of it.

Mr. Poydras asked for the reading of a letter which he had received from the Governor of Orleans Territory, which was accordingly read. The letter states, that if it were possible that the committee to whom Mr. Livingston's claim was referred could now visit New Orleans, they would be convinced that the batture, now covered with water, was in fact the bed of the river, and, therefore, could not be private property. Mr. P. stated the history of this piece of alluvion at some length, and the circumstances under which it had always been deemed public property.

Mr. Sheffey said that before passing this resolution, gentlemen ought to ascertain what the Attorney-General could do in this case. He could not compel the attendance of witnesses, or collect testimony of circumstances which occurred a hundred years ago; and unless he could do this, it was impossible he could examine the title, for testimony as to facts was essential to enable him to form a correct opinion. What influence could the opinion of the Attorney-General have? Was the right of the citizen to fall prostrate before such an ex parte opinion or statement as that might be? If it was not to have influence, why thus evade a decision on the prayer of the petitioner? If it was to have any influence, it must be a pernicious one, because founded on ex parte testimony. Would the House go into the merits of the case on this opinion, when obtained without affording an opportunity to the party interested to prove that the law was not correctly expounded nor the facts correctly stated? Surely not. If they did not, if they heard opinions on both sides, they converted this House into a judiciary tribunal. Was this body calculated for that branch of Government? No; this, Mr. S. said, is a Government of departments, each of which ought to be kept separate. What, sir! is this a question of right between the United States and an individual, and we are about to take it into our own hands, to wrest it from the constitutional authority, and decide it ourselves? I hope we shall not; and, therefore, I am against this proposition. What does the Attorney-General state in his report? Aware of the impropriety of his deciding, he tells you – what? That the usual course, where the rights of the United States have been involved, has been to appoint commissioners to hear and decide. Here the Attorney-General tells you it is not proper for him to decide. And I should never wish to see the case in which the Attorney-General's opinion is to give authority for dispossessing an individual of his property; for if it can be done in one case it may be in every case. Any individual may be driven from his property by military force, and then his title be decided by an ill-shapen, one-sided statement and opinion of the Attorney-General. Against such a decision I do protest. Is it because you have power on your side, sir, that you will not submit to a judicial decision of this question? If there be a controversy about a right, there ought to be a judicial decision.

I, sir, have been unable to see how an individual having property, in which he was put in possession in 1804 or '5 by a judicial decision, could be disposed of it by the act of 1807, the operation of which was limited to acts done hereafter, that is, after the passing of that act in 1807. That law too speaks of "lands ceded to the United States." Was the batture ceded to the United States? I say not, because it was private property before the United States possessed the sovereignty of the country. By the treaty of 1803 with the Government of the United States, the rights and property of the inhabitants of Louisiana was secured to them. What then is the inference from this state of the case? That the United States got possession illegally, in defiance of judicial authority. I am sorry to see that the judicial authority has been set at defiance, and the Presidential mandate carried into effect at the point of the bayonet, right or wrong. This was the case. Those who were put in possession were ousted by military force. Let me not be understood as throwing odium on the Executive; far from it. I believe the Executive acted conscientiously, but upon an ex parte statement. The President was never told that the case had been judicially investigated. Those facts were taken for granted, on the other hand, which did not exist, and those which formed the foundation of the true merits of the case, were withheld.

Mr. Poydras spoke at some length in reply to Mr. Sheffey, and in defence of the title of the United States. The batture had many years ago been considered as public property, and no one who examined the circumstances of the case could for a moment doubt it. He said that it had never been claimed as private property until after it came into the possession of the United States. He hoped the rights of the public and of the people of New Orleans would not be trampled upon to grant the petitioner his prayer.

Mr. Macon said that he was himself in favor of giving the right of the United States to the property to the people or corporation of New Orleans, and letting them and the individual contest it. There was nothing new, however, in the reference of a subject to the Head of a Department, whose opinion would have no more weight than reason, and so far only ought it to have weight. Mr. M. said he had no more desire to interfere with the judiciary than either of the gentlemen who had spoken. If provision was made for trying this case, must it not be extended to all others? In order to do justice, it must be done to all. Had not a special court been refused in relation to a property of much greater value than this? Before Congress made a special court for a certain case, they ought to look at the consequences. It was departing from the general system of the nation to appoint a court for a special case. Perhaps there was something in this case which differed from other cases: but he doubted whether it would warrant the appointment of a special court. Mr. M. said he saw no other way of treating this subject but by letting it go before the courts already organized. If the right was in the petitioner, be the consequences what it might, the city of New Orleans had no right to take it away from him.

Mr. Troup observed that this case was probably one which would fall under the old maxim, nullum tempus occurrit regi or reipublicæ. It appeared to him that there was a constitutional difficulty in this case, which did not appear to have suggested itself to the mind of any gentleman. First, has the United States a claim, either real or disputed, to this territory? Whether disputed or otherwise, provided the claim be asserted on its part, the question is, has the Congress of the United States a power to decide the validity of that claim? And if it has, is it proper so to decide it? What is the subject-matter in dispute? Public property; and what species? Landed. Then the question results, has Congress a right, in order to determine its title, to refer it to any tribunal whatever? I contend not; the right to public property was originally in the people of this country; they could never be divested of their great public right to the landed property of the nation, but by their express consent. They did give that right to the Congress of the United States, in declaring that it should have power to dispose of and make all needful rules and regulations concerning public territory. Would it have had that power, if this right had not been expressly delegated? I know that, under the old Articles of Confederation, Congress did undertake to legislate as to property; but it was always questionable whether they had a right to do so – and this was not the only point on which Congress did exercise powers which were brought into question. The right to determine claims to public property is not only guarantied exclusively to Congress by the constitution, but the practice has been invariably pursuant to it; it was so in 1807. The Government not only asserted its right in the first instance, but asserted its power to enforce the right at the point of the bayonet. If the public have always been in possession of a certain property, the man who enters on it without their consent is a trespasser on that property. Upon this view of the subject, there is a constitutional difficulty on which the House should decide, before it entertains a motion for delegating a power to decide this question to any tribunal or commission whatever.

Mr. Boyd said, admitting all the gentleman had said to be true, his observations did not apply to this case. He had spoken of the right to public property. The question now was, whether this was public property or not; if it were certainly public property, on which ground the gentleman rested his argument, there could be no question on the subject. It was asked only before they decided between the individual and the United States on the right to land, not confessedly public property, but claimed as such, that fair investigation should be had. Mr. B. disclaimed the power of deciding judicially upon the subject; it was a right which he had never thought of this House claiming. A delay of justice was a denial of it. The individual petitioning had been in possession of the property; it had been taken from him by force, and he now asked a trial of his title before a competent court – and this opportunity, Mr. B. said, he ought to have as speedily as possible.

Mr. Randolph said he should vote against that report. He said it was no part of his intention to deliver any opinion on the merits of the claim, although he had devoted not a little of his time to the study of that question, for two reasons: first, that it would be a prejudicated opinion, inasmuch as that was not the question which the House were called upon to decide, even if it were competent to decide it. I am extremely sorry, said he that the law of 1807 has been brought into view of this House by my friends from North Carolina and Georgia, and for this reason: that that law has no bearing at all on the present question. Its object was wholly different from that to which it has been misapplied. What, sir, was the object of that law? To defend against a conspiracy, I may properly term it – against the lawless violence of confederated associations, a vast property. How has it been applied? Not to a great public property, but to a speck of land, to which, as I understand it, a single individual, or at most three or four, put in a claim. Such an application as that of the law in question was never intended by the Legislature; and, if applied to such a property as the batture, and to the case of a single individual, may be applied to the property of every man in society. What is the doctrine of my friend from Georgia? That the public are always supposed to be in possession of the national domain. True, sir, and it is also true that those who enter upon it and endeavor to appropriate it to themselves, are trespassers, and as such, may be resisted by force. But that is not the case in the present question – very far from it – for the public never had been in possession of the property in question.

Without attempting to enter into the merits of the real title to the land in question, let us take it on the ground of the right of the citizen. A citizen comes before this House, and complains that he is dispossessed of his common right by arbitrary power. If, after a cause has been heard by a court, and a citizen put in possession of a property, by a decree of that court, he is dispossessed of it by military violence, where, if not before this House, is he to prefer his claim for redress? There is no court before which he can go, because the court which is the last resort in this case has already unavailingly given its decision. There is no court of appeal, no superior tribunal, and if there were, and a decree of the Supreme Court obtained in his favor on the appeal, what is any decree to avail against armed men – against muskets and bayonets? But this is not the only reason why I am sorry that the act of 1807 has been brought in to apply to this case. It is because, if this House can be once prevailed upon to consider this case as analogous to the Yazoo case, many most injurious consequences must follow therefrom. The first is, that that odious and supremely infamous claim will be put upon a ground which it is by no means entitled to occupy; and I entreat my friend from Georgia, and those whose minds are unalterably made up on the Yazoo question, not to give their enemies such a prize as they must have on us, if we agree to confound the Yazoo claim with that before the House. There is no sort of analogy between them. On the other hand, sir, supposing the right to be in the United States, I beg gentlemen not to create so forcible an interest against the rights of the United States as will infallibly be embodied against it if we confound the two. I have no idea of giving the Yazoo men such a handle. Again, let us suppose, if we can suppose it, that the right is in the petitioner; may it not, supposing a great majority of the House to be against the Yazoo claim – we do not know how they are disposed – may it not create an unjust bias against the petitioner? So that in whatever aspect we view it, it is not only impolitic, but, what is worse, extremely unjust to attempt to identify the two cases. And, sir, it is a matter of curious speculation, that while the act of 1807 has been brought into operation in the case of a solitary individual and a little speck of property to which it was not intended to apply, even supposing the case in question to to have arisen subsequently to the passage of that act; that, although it has been misapplied in this case, it has not been applied to the case to which it was intended to apply, and for which it was enacted; for, if I understood my friend from Georgia a few days ago, some hundreds or thousands of intruders have set themselves down on the public lands, and the public force has never been employed against them. On the contrary, the artillery of Government has been brought into play against a single individual. It was, indeed, said that these intruders had agreed to remain as tenants at will; but, let them remain till they are sufficiently strong, and they will give you another chapter in the history of Wyoming; for, after they are sufficiently strong to hold territory, although the arm of Government has been applied successfully to oust a single individual put in possession by a decree of a court, you will find it nerveless to expel these men.