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

With regard to the doctrine nullum tempus occurrit reipublicæ, it is a dangerous doctrine, if carried to the extent to which I apprehend my friend from Georgia would carry it. I venture to say that the abuse of that doctrine in the celebrated case of Sir John Lowther and the Duke of Portland, which created one general sentiment of indignation in the British nation – an attempt under that maxim to deprive a subject, hostile to the Court, of property of which he had been long in possession, for the purpose of transferring it to a minion of the Court – that case, with all its aggravated enormities, does not come up to the case before the House; and I speak without reference to the question whether the petitioner has a right or not to the property in this case. The question of right is not before the House, and that question, decide which way you will, can have no sort of weight in the vote which the House ought to give. The question is this: Having been long in possession of a piece of land, the title deeds destroyed, records burnt, and possession the only title you have to show, an attempt is made to dispossess you of the property; a decree of court confirms your right; if the individual, under these circumstances, can be turned out of possession by main force and strength, and that, too, military force, there is an end in the right to property of every man in the country. Sir, I have been astonished, and grieved and mortified, to see so little sensation created in this nation by the procedure in question. It strikes at the root of every thing dear to freemen. There is an end of their rights.

What, then, is this case? An individual comes before us, and says, that after having been put in possession of a piece of land, (I speak not of the validity of his title; it is not concerned in this question,) he was dispossessed by military force of this property. These two facts I do not understand any member of this House to deny. And what does he claim? He claims of you, as the guardians of the rights of every man in society, justice. And where do you send him? To the Attorney-General. I will suppose that in the Lowther and Portland case, the Duke of Portland had been referred to the Attorney-General. Would the English nation have endured it? No, sir. Much less would they have endured, military as the nation is becoming by the introduction of large standing armies, that he should have been dispossessed of his property by an armed military force, at the fiat of the Crown. The question is, what should be done? Sir, what should not be done is perfectly clear. It ought not to be done that the petitioner should be sent to the Attorney-General, who has already given an opinion on his claim, though that is very immaterial, which opinion it seems we cannot find. If I understand any thing of this Government, however, it ought to be on record, and this return of non est inventus ought not to have been received. All that we have to do, it appears to me, is to make a provision, in the nature of a declaratory law, not amending the act of 1807, but, declaring what the law is; and we ought to quiet the rights, and the mind too, of every man in society, by declaring that, by the act of 1807, it was not intended to authorize the President of the United States to interpose the bayonet between the courts of justice and the individual. This power never has been given, never was intended to be given.

Mr. Gold said that this was one of the most important subjects that had ever been brought before the House. He did not mean to enter into the merits of the case. The gentleman from Virginia had very clearly expressed all those sentiments which every man must feel on hearing the history of this case; and as regarded the ground taken, of nullum tempus occurrit, the gentleman had repelled it very properly – and indeed in that country whence the maxim had been derived, whenever it was attempted to be put in force against ancient possessions, it had been executed with great difficulty. It is in the very teeth of Magna Charta, which says that a freeman shall not be dispossessed of his freehold without a better right is ascertained. There are a variety of forms by which the right is guarded. If I, said Mr. G., understood the gentleman from Georgia, (Mr. Troup,) he considers it a sacrifice of the rights of the United States to permit a decision on its property to pass into the hands of third persons. Even in England the prerogative is not carried so far. The Crown has frequently consented that the right of Government should pass into the hands of third persons, viz: of commissioners, for the purpose of investigation.

I will not trouble the House with lengthy remarks on this subject. I can hardly advert to it without feeling all that has been much more eloquently expressed by the gentleman from Virginia than it is in my power to express it. Let gentlemen look around and see if they can find a precedent for this transaction. And when we consider it, every man's feelings must be operated upon too strongly to permit him to argue. The course suggested by the gentleman from Virginia must prevail, or we no longer live under a Government of laws, and those principles on which it is founded are destroyed. The man ousted must be put in possession, must be restored to the possession of the property which the hand of violence has wrested from him; and I hope that a proposition to this effect in a proper shape will be presented.

Mr. Gholson said he thought it would better become the character of this assembly to discuss every subject with calmness and deliberation, and on its own merits, than to endeavor to influence the decision by an appeal to the passions. It was important that such a course should be pursued, whether with reference to a great political principle or to the interest of the individual whose rights were said to have been wantonly prostrated at the Executive will. I (said Mr. G.) have been early taught, and the doctrine has grown with my years, that the right of property is not one of the least consideration in a free constitution. It is of a nature so sacredly inviolable that, when clearly ascertained, I would never encroach upon it by any means but through the regular constituted authority. It would have been under this impression that, had I been a member of the Legislature when the law of 1807 was introduced into the statute book, I should have been opposed to it. But receiving all the sanctions of a law, and as such containing a rule of conduct in certain specified cases, what was the Executive to do? Was he to set at defiance the law of the land? A doctrine like this can never be contended for. It seems, however, that to satisfy gentlemen the President should have refused to carry this law into execution, which I acknowledge does usurp judicial authority. – [Mr. Randolph said that his ground was that the President had not executed the law. If a law were ever so unconstitutional, the President having signed it, it would become his duty to carry it into effect. But he denied that he had carried it into effect.] Upon that point, continued Mr. G., my colleague and I are at issue. I rise not to discuss the merits of the claim, which I have no disposition to do. I rise to defend the late President of the United States, to endeavor, to the extent of my feeble powers, to place this question in a proper point of view. If the President of the United States has gone beyond the letter of the law, which itself tends to encroach on the rights of the citizen, I would be the last person to justify him in thus trespassing on the dearest rights of a freeman. But it is very easy to show that he has not exceeded the express provisions of the law in question.

The act of 1807 contains two clauses having a bearing on the subject; the first ascertaining the character of the persons to be ousted, and the second providing the means of ousting them. The President is authorized to exercise this power, either where property was previously in possession, in which case he is to give notice, or where it was subsequently entered on, in which case he is not required to give notice. It is easy to show that this is one of the cases contemplated by that act. It is well known that the feudal law did exist in Louisiana, previous to its acquisition by the United States, and that by that law alluvion does accrue to the Crown. Now, if the feudal law did exist, and by that law alluvion did accrue to the Crown of France, does it not follow that the same right did accrue to the United States by the deed of cession from France, who owned the territory? If the claimant was in possession when this act passed, it became the duty of the President of the United States to give him three months' notice previous to his removal; if not, no such notice was necessary. On this point I need only refer to the fact that it was not so early as the passage of the act, indeed not till the 23d of May, that the claimants came into possession. They were quieted in possession, so far as the rights of the United States were not concerned, on the 23d of May, 1807.

The decision of the corporation court of New Orleans is relied on as giving a title to the petitioner. That that decision did at all affect, in the remotest possible degree, the right of the United States, is a position which no man acquainted with the principles of law will contend for. The decision cannot affect the right of the United States, because it was not contested or defended before that court.

It is said that the feudal law does not exist in France. From time immemorial it has existed all over Europe. That it exists at this time in this country there can be no doubt. The right to lands is allodial, but is inherent in the Government. Is it denied that the Government can take property from an individual, making him compensation therefor? If the right to land be indefeasible, could the Government run a road through it? It certainly could not. I wish it to be distinctly understood that I do not attempt to say where the real right to the property in question does reside. But I do say, that, according to the treaty of cession, it did become the Government of the United States to exercise the power which the President under the law of 1807 did make use of.

If there has been any violation of right, it was in the passage of the law under which the President acted. It was such a one as, under present persuasion, I could not have voted for, even to remove a Yazoo purchaser. I would even give to such a one his right to a fair trial. I would not have agreed to pass it, for a reason given a day or two ago, that the right to trial by jury is inalienable; it is a right which descends to us with our other birth-rights; it is one without which liberty is but a name. It was an unfortunate circumstance that such a law did pass. But if the Legislature thought proper to enact such a law, let them not, in the name of the great God, throw the blame on their instrument, on the President, who was innocent of fault, and bound to carry the statute into effect. There is undoubted proof that the President only acted in pursuance of the statute. The retroactive part of the statute is the most horrible feature in it.

But it is said that this is an extreme case, that this small spot was selected as the object of Executive vengeance. I am informed that in almost every instance of intrusion on the public lands, settlement was made by individual claimants. I would rather give up fifty times the value of land of the United States than to encroach against law on that of any individual. It was not the execution of the law which encroached on the rights of the citizen, but the law itself. I would ask, how can it be contended to the contrary? Who was in possession of the land when the law passed? It had been used as public property, and had every requisite to that character; and as such, when any one took possession of it, the President would not have done his duty under the act of 1807, had he not caused them to be removed.

Monday, June 26

Non-Intercourse

On motion of Mr. Smilie, the House resumed the consideration of the report of the Committee of the Whole, on the bill from the Senate, to revive and amend certain parts of the act interdicting commercial intercourse.

Mr. Dana said the amendment moved to the amendment of the gentleman from Virginia (Mr. Sheffey) went to give a construction to the bill which would operate as a complete exclusion of the vessels of both powers until a satisfactory adjustment of all existing differences shall have taken place. What, said Mr. D., is the situation in which we are now placed? On what principle is it that British ships were first excluded and on which their exclusion was confirmed by the non-intercourse law? They were originally excluded by the proclamation of the President of the United States in consequence of the attack on the Chesapeake. The President of the United States now in office has declared his acceptance of the proffered terms of satisfaction for that outrage. And, after that, is it proposed that we shall continue the measure of hostility when the cause alone which led to it is completely done away? I should suppose that in the very act of adjustment, which took place between the British Minister and the American Secretary, it is implied that we should do nothing further on this subject. The President of the United States has accepted the satisfaction offered; he has declared those terms, when performed, to be satisfactory. And are gentlemen considering the restoration of the seamen taken from the Chesapeake as a reason why we should continue the interdict? If we examine this subject fairly, the great principle of reparation was disavowed of the claim to search our armed vessels, and a homage to our rights. That matter must be deemed to be settled, if the President of the United States had authority to settle it. If the President had not power to settle it, this furnishes strong evidence that the vote of approbation of his conduct was a proper proposition.

As to the interdiction by the non-intercourse act, I apprehend that was founded on the violation of our neutral rights by the belligerent powers, the President of the United States being authorized to renew trade whenever the edicts violating our lawful commerce should be revoked. Whether or not the President has done right in accepting the assurance instead of the fact, gentlemen have considered it unnecessary for them to express any opinion upon it. If there be no edict affecting our lawful commerce in force by one belligerent, the interdict is at an end in point of fact in relation to that one. The question of the affair of the Chesapeake is settled, if the President had power to settle it; and as to the other cause of interdiction, the President has declared that the British orders will have been revoked on the 10th of June. Has the President acted correctly or not? If he has acted correctly in taking the assurance for the fact, the very principle of the non-intercourse is at an end as respects one of the belligerents, and there can be no ground for the exclusion of British armed vessels.

Mr. Taylor said he thought the gentleman from Connecticut used the word hostility in relation to this measure of including British armed vessels from the United States. Now, I believe, sir, said Mr. T., that if we go to the opinions entertained, not by the President of the United States, but entertained and expressed in the very foundation of the arrangement which was made, it will be found that the very hostility intended to be produced by the President's proclamation ceased at the moment when we passed the non-intercourse act in which we excluded the vessels of both the belligerents. The hostility was in the admission of the armed vessels of one, and excluding those of the other. It ceased by the non-intercourse law, and so satisfactory was this law of the last session, that it was the very foundation on which the overture was made which ended so much to the satisfaction of this nation. So that, in fact, when we perpetuate the order of things produced by that act, we do not perpetuate the state of things produced by the interdictory proclamation of the late President. It was matter of satisfaction to the British Government, as expressed by their Minister here, that the quality of hostility in the exclusion of her vessels was taken away by the non-intercourse law. Have we promised, in the negotiation which has taken place, that we will commit an act of hostility against France for the boon which we have received from the hand of Great Britain? No, sir; and yet, if we take the definition of Mr. Canning, as to excluding the vessels of one belligerent and receiving those of the other, according to the mode proposed by the amendment, without the sentence moved to be admitted to it, it will in fact be agreeing to go to war with France. According to the opinion of Britain, promulgated not only to this Government but to the world according to the demonstration made by the British Government, you will undertake a measure of active hostility against France; for what? For any great boon that this Government has received from the hands of Great Britain? No, sir. If all the promises were fulfilled to their full extent, we should then receive but justice at her hands. It was acknowledged, too, in the discussion which took place, that any nation, particularly a neutral nation, has a right to exclude the armed vessels of both belligerents; but that, on the contrary, the state now proposed to be produced, the exclusion of one and admission of the other, is an act of hostility of the party excluded. As I would not be compelled by the utmost ill usage by either belligerent to take part with the other against that one, neither will I take a consent or refusal from one or the other to do us justice as a motive for alliance, or a war which shall compromit our neutrality. I now speak of both, for both have used us as ill as was in their power. As kicks and cuffs have not compelled us to take part with them, neither shall caresses or fawning, for we will mete out an equal measure of justice to both. I consider the state of things produced by the non-intercourse as totally distinct from that produced by the proclamation of our late illustrious President.

Mr. Fisk. – It was my intention not to have troubled the House with any remarks on the bill now under consideration. I could readily have reconciled it to my feelings to have given a silent vote in favor of the bill, had not so many and various objections been made against it. But as it seems to be objectionable, and susceptible of so many amendments, in the opinion of so many gentlemen, the House will indulge me, while I offer the reasons which will govern my vote.

This bill for which we were convened, has, during the time we have been here, received as yet but a small portion of our attention; and it is so important that upon its passage, and the principles it shall embrace, may depend the destinies of our country. It deserves our immediate and most serious attention. I hope it may be coolly and dispassionately examined, and treated according to its real importance. Its principles have been carefully and scrupulously investigated by the committee who reported it, or a bill similar in its provisions, of which committee I had the honor to be a member.

The language is plain; public ships are not interdicted. There is but one question to be decided in disposing of this bill, and that is respecting public ships; for I believe all will agree to renew the non-intercourse act as respects France. The question is, what regulation shall we make respecting public ships, and one of three courses is to be pursued? Shall we exclude both, admit both, or discriminate?

There are many who would be willing to exclude the armed ships of every foreign power from our harbors and waters. And considering what we have suffered by admitting them, it may be well questioned whether it would not be the best policy of this nation to interdict them by a permanent law. Yet many gentlemen object to this, as being inexpedient at this period. It is said, and it is the principal argument urged against it, that it might embarrass our impending negotiations with Great Britain to interdict her public ships by this act. As I feel as much disposed for an amicable adjustment of our differences with that nation as any member of this House, and would be as unwilling to embarrass the negotiation, I would not insist on this interdiction.

It is also said that England has made reparation, or agreed to make reparation, for the aggression which caused the interdiction of her public ships, and that as the cause no longer exists the interdiction should cease. Be it so; and may we never have fresh cause to renew it!

But, say gentlemen, we must not now recede from the ground we have taken with respect to France, we must discriminate. Let us for a moment view the ground we have taken – not only as relates to France, but England also.

We are not at war with either of the belligerents. Our Ministers at their respective Courts are endeavoring to negotiate, and by negotiation to obtain redress for the injuries of which we complain, and whatever precautionary measures we might adopt would not be deemed a violation of our neutral character, so long as those measures were equally applicable to both the belligerents. We could not be deemed to have taken part with either to the prejudice of the other, while no other was benefited by our measures. While British public ships were interdicted, and our embargo existed, an offer was made to both the belligerents to resume our trade – the same equal terms were tendered to both. The nation refusing is left without a cause of complaint against us, for resuming our trade with the nation accepting the offer.

Before either nation does accept, America changes her position. The embargo is abandoned, and a general interdiction of the public ships of England and France, and a non-intercourse with these nations and their dependencies, is substituted. By this non-intercourse act, the particular interdiction is merged in a general regulation. This was to exist until the end of the next session of Congress only. This was virtually saying, that the proclamation interdicting British public vessels from our waters for a particular aggression shall be revoked; and a general municipal regulation, over which the President shall have no control, shall be substituted in its stead. It was then, in order to preserve our neutral character, necessary that this rule should embrace both the belligerents. It may be said, and has indeed been frequently said, that the reason of extending this restriction to France, was her having burnt our vessels and imprisoned our seamen. But never, at least in the history of diplomacy, have cause and effect been more distant and unconnected. France, on the high seas, burns our vessels, and in her own territories imprisons our seamen. We, at the distance of three thousand miles, interdict our ports and waters to her public ships, which do not or dare not come within five hundred leagues of the line of our interdicted territory, and this is to retaliate for the aggression. Can this interdiction be defended on this ground? It cannot. There must have existed some other reason. It was to preserve our relations with the belligerents in that state that should be consistent with our professions of neutrality.

Had the interdiction been confined to British vessels by this law, what would Great Britain have said to this discrimination? In vain might we have told her that we meant to preserve our neutral character, and not to take a part with her enemies in the war against her. Our acts would have been directly opposed to our professions. With this discriminating, permanent, municipal law, could we expect Great Britain to treat with us as a neutral? If we did, we should be disappointed. If, then, it be inexpedient to make this discrimination against Great Britain, how is it less so, when directed against France? We are to admit British and exclude the French. And, are we to endeavor to negotiate, as neutrals, with France, upon this ground, with any reasonable prospect of success? It is desirable that the commercial intercourse between this country and France should be restored. Peace and free trade is the interest and the object of America. While we throw wide open the door of negotiation to England, why should we shut it against France? While we facilitate negotiations with the British, why should we embarrass and prevent the same with the French? I wish to leave the Executive and treaty-making powers of our Government free and unshackled, to enter on negotiation with both these Governments, under every advantage of success which we can give. On what ground can this discrimination be defended? You adopt this measure. Our Minister at Paris is requested to explain it. Is there any advocate for this discrimination in this House, who can conceive the grounds upon which our Minister or our Government are to justify this measure with our relations of neutrality? It cannot be defended. I am not for yielding to either nation, but, let our conduct be consistent, impartial, and defensible. If then, we are to be involved in a war with either, the resources of the country and the hearts of our citizens will support the Government, and we need not be afraid of the world. But those men, or that Administration that will, upon a mere useless, punctilious point of etiquette, commit the peace and happiness of this country to the ravages of war, will meet the indignation, and feel the vengeance of the intelligent citizens of the country. This temerity would meet its merited punishment. The people of America can see, and will judge for themselves; they can readily discern the difference between shadow and substance; they are neither to be deceived or trifled with, especially on subjects of such immense moment to their liberties and happiness.