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

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.

JAMES MADISON.

February 9, 1810.

Department State, Feb. 8, 1810.

The Secretary of State, to whom the President has been pleased to refer the resolution of the House of Representatives of the 22d of last month, has the honor to state that it appears from the records in this department, that in the years 1801 and 1802, the Executive had endeavored to obtain, for the citizens of the United States residing on the waters of Tombigbee and Alabama rivers, the free navigation of the Mobile river to its confluence with the ocean – first, by claiming this navigation as a natural right, sanctioned by the general principles of the law of nations applicable to rivers similarly situated; and, secondly, by endeavoring to purchase the country held by Spain on the Mobile.