JAN. 3, 5, 1835.]

stitutional to-day, may become constitutional to-morrow, by the simple passage of a law establishing a port of entry at the head of supposed navigation, and that the constitution can be changed, and new powers given to it, by the legislative power; a power which it has created, prescribed, and limited.

A port of entry, on some central position of this extensive navigation, will be convenient and useful. It will, probably, soon be indispensable. It was moved in the other House, at the last session, and conversations were bad with the chairman of the Committee on Commerce here on the same subject. It was thought then to be premature, as the applications for aid in improving the river and in constructing the canal had, on previous occasions, been considered. I am anxious to have the reasonable assistance of this Government in perfecting this navigation, and the proper facilities created for using it when perfected. I am disposed, then, as I was last session, that a port of entry or delivery should be established at Lafayette, upon the Wabash; and have, at this time, this additional reason, that I doubt not it would remove all objections to an approval of the bill if it should again pass both Houses. These objections, however, I hope will be done away by other considerations; in addition to those already named, by the rapid and extensive progress of the canal since the close of the last session of Congress, and by the advance already made towards a perfect inland navigation between the two commercial emporiums of the country, New York and New Orleans. Important facts exist in the case now, that did not exist at the close of last session, Then, it was not a fact that thirty-five miles of the canal had been finished, and that the water had been let into the summit level section of the canal. Now these facts exist. The waters of the St. Joseph, a tributary of the Maumee, already flow upon the summit level of the country, and mingle with the waters of the Wabash. The water communication is now continuous, very imperfect to be sure, but it is continuous, between the ports of entry and delivery, which are numerous, on Lake Erie and those upon the Mississippi.

When Mr. HENDRICKS had concluded

Mr. HILL moved to lay the bill on the table; which was negatived.

Mr. HILL then called for the yeas and nays; which were ordered.

Mr. POINDEXTER said that there was no difficulty in his mind in voting for this bill, other than that it was understood to have been introduced to remove the objections of the President to the improvement on the Wabash. He wished it to be understood that he had no such scruples as those of the President on that subject, and that he would not, by any vote of his, countenance so senseless a distinction as that between a river where there was a port of entry and where there was none. The President himself, said Mr. P., had signed a bill for clearing out the raft on Red river, where there was nothing but wolves and bears, for miles above the improvements, and what animals might be benefited by them he did not know. As to the President's refusal to sign a bill for the improvement of the Wabash, until a port of entry was established on the river, it was one of those senseless distinctions that might suit the school of a certain class of politicians, but would find no countenance from him.

The question was then taken on the engrossment of the bill, and decided in the affirmative, as follows:

YEAS-Messrs. Benton, Clay, Clayton, Ewing, Frelinghuysen, Hendricks, Kane, Kent, Knight, Linn, Naudain, Poindexter, Porter, Robbins, Robinson, Silsbee, Smith, Swift, Tipton, Tomlinson, Waggaman, Web

ster-22.

NAYS-Messrs. Bibb, Black, Brown, Buchanan, Cal

[SENATE.

houn, Grundy, Hill, King of Alabama, King of Georgia, Leigh, Mangum, Moore, Morris, Preston, Shepley, Tallmadge, White, Wright-18. The Senate then adjourned.

SATURDAY, JANUARY 3.

The Senate did not sit to-day.

MONDAY, JANUARY 5.

EXEMPTION OF MERCHANDISE FROM DUTIES.

The bill to exempt merchandise imported under certain circumstances, from the operations of the act in alteration of the several acts laying duties on imports, coming up for consideration

Mr. BENTON said that this bill, on being ordered to be read the third time, a few days ago, seemed not to have attracted the attention of the Senate; it was ordered to a third reading, after a few minutes' conversation between two or three Senators; and he knew members who were standing behind the colonnade, who did not even know that the bill, if passed, would take a million and a half of dollars out of the treasury, and thus violate the plainest principles of law and equity that had ever been exhibited on the records of the Senate. There were many Senators who were not aware that the bill was on its passage. He (Mr. B.) was not speaking without duly considering what he was saying, when he stated that this bill was carried by virtue of its amount, and that it could not get along if it was reduced to about one-third. It was necessary, in order to get it through, that it should amount to a million and a half. Now, what was the principle of the bill? It was, that there should be a refunding of the duties paid on goods ordered within six months after the passage of the tariff bill of 1828.

And what would be the operation of the bill? It would be a refunding of the whole amount of the difference which accrued under the tariff law of 1828 over that of 1824, and between the passage of the act and the last day of that year. This was the effect of the bill: to refund the entire difference between the two acts, paid into the treasury for a period of six months. And. for whose benefit was this money to be refunded? Was it for the consumer who had to pay the merchant for the advanced duty on his goods? No, not at all; the whole was to go into the pockets of the merchants who received their profits in proportion to the costs and charges which they had to pay. Yes, the whole was to go into their pockets. On what did the bill rest? Did it rest on the idea that Congress, in 1828, passed an act to take effect within a brief period, to operate on the orders that were then given, and the cargoes of goods that were coming in, and that, too, without letting those interested know what was done? Was this the case presented under this bill? Was there a gentleman, cognizant of the proceedings of the Senate and House of Representatives in 1828, who did not know that, so far from there being a mistake on the part of Congress, there was a most settled and persevering resistance made by those who carried the bill through, against postponing its operation. A motion was made, in this body, to postpone its operation from the 30th of June to September, but it was negatived by yeas and nays. The entire high tariff party were against allowing one hour beyond the 30th day of June, and now they were desirous of taking that money out of the treasury, which they, under a solemn oath, decided should be there deposited. He meant nothing offensive in stating this fact, but he thought it right that it should be called to the recollection of honorable Senators and the American people.

JAN. 5, 1835.]

was unnecessary for him to say that he entertained a high opinion of the judgment of that gentleman in all such cases. But it appeared to him that the principle of this bill was perfectly clear, and he would not forego what seemed to be a correct course on the opinion of any gentleman whatsoever. What was the principle of this bill? In all civilized countries, it was deemed necessary, before any law should take effect on the public, that the public should have every opportunity to understand its provisions, and to accommodate their conduct to the new state of things produced by the law. On that very principle, the French Government had agreed to indemnify us for captures made before the Berlin and Milan decrees had become known in this country. And what was the case with the tariff of 1828? It went into effect before it was possible that the commercial classes of the community could be prepared for it. No notice had been given of its provisions, the operation of which was retrospective, and consequently unjust. What was the principle of the present measure? It was to do no more than ought to have been done in 1828. It was to place the merchants precisely in the situation in which the tariff bill itself ought to have placed them.

There could be no perpetration of fraud under the provisions of this bill--no merchant could obtain the benefit it provided, unless he could satisfy the Secretary of the Treasury that he had ordered the goods in time. This was one provision. Another was, that the goods must have been ordered in a foreign country before there was any knowledge there of the existence of the law: and, further, that the merchant had no possible opportunity of countermanding the order. If the merchant were able to satisfy these provisions of the bill, it was just that he should not suffer. The bill was then so guarded, that, if these prerequisites existed, the merchant must also show that he had suffered actual loss to the amount claimed by him under the bill.

Now, although he was disposed to be as careful of the public money as any Senator, he was equally disposed to do justice, as far as he knew how, to every class of the people. He did not now intend to go into any detailed argument; but it was necessary that something should be done. He would vote for the recommitment of the bill, because he would rather, if it could be done with out injustice, that an earlier day than the 31st of December should be fixed. But he should vote for the bill, let it come up when it would; because he considered that the Government was, in justice, bound to make good any losses which might have been sustained in consequence of any neglect sufficiently to protect the rights of any class of the people.

Mr. SILSBEE said that it appeared strange to him that it had never been discovered by at least three several Committees of Finance, by which this subject had been considered, that the bill would call for so large an amount from the public treasury as that intimated by the Senator from Missouri. The Senator had said this bill would call for $1,500,000, but he could not conceive by what calculation so large a sum was estimated. They had a report from the Secretary of the Treasury, by which it was estimated that not more than $450,000 would be required to the 1st of September, and he (Mr. S.) thought that even that estimate was too large. to the danger of frauds, so much apprehended by the gentleman from Missouri, the bill was sufficiently guarded to prevent them. The importer must show to the Secretary of the Treasury, before he obtains the benefits of this bill, that he had ordered his importations before he had any knowledge of the passage of the tariff' of 1828, that the goods were imported from a foreign country, and that he sustained a loss by the importation. All this, in so many cases, would be so exceedingly dif ficult to prove, that no attempts would be made to re

As

[SENATE.

cover the duties that have been paid. His opinion, therefore, was, that $450,000 was more than would be called for.

If gentlemen wished for more information before acting on the bill, he was perfectly willing to give every opportunity for obtaining it; the only difficulty, however, in his mind, was the danger of protracting the further consideration of the bill until too late in the session to pass it through both Houses of Congress. He thought the Senator from Missouri would find it very difficult to prove that goods had risen in consequence of the act of 1828. He recollected obtaining from Philadelphia a price current, which showed that many articles of importation, particularly the most bulky articles, had considerably fallen. He knew the idea prevailed among Senators, that, on the change of a tariff, such as that in 1828, the merchant gets the difference in the duty; but there was no more fallacious an idea ever entertained, nor one more utterly repudiated by all intelligent commercial men.

The tariff of 1828 contained a greater increase of duties than any that ever passed through Congress, besides taking a more speedy effect. On the West India articles, particularly molasses, the duty was greatly increased. On the Mediterranean articles they were, many of them, raised as high as 150 per cent.; iron, hemp, and duck, were enormously increased; some duck even as high as 500 per cent. The merchants importing under these circumstances must have been subjected to very heavy losses, and he thought, with the Senator from Pennsylvania, that sheer justice required that they should be remunerated. Mr. S. repeated that he had no objections to a postponement, if the object was to obtain more information, and he would give his vote to recommit the bill.

Mr. KANE, after a few remarks which were very indistinctly heard, wished the bill to be recommitted, not only to gratify the honorable Senator from Missouri, but also to call the attention of the committee more particularly to the provisions of the bill. Mr. K. then asked for the yeas and nays.

Mr. BENTON replied that he was aware that this bill had several times passed through the Senate with but little opposition on his part; and he would give the reason for it. He seldom addressed the Senate on ques tions of commerce or finance. During the fourteen years he had been a Senator, he had observed (he meant no offence to any one by the remark) that the gentlemen from the seaboard considered that they alone were qualified to judge on commercial affairs; and that it was a work of supererogation from one from the West to attempt to enlighten the Senate on such subjects. Again, it was well known that there was always a calculation of what effect a Senator's vote on a money bill, preventing a single miserable dollar from going to his section of the country, would produce on his future political prospects. It would be stereotyped in a column as long as his arm, and brought out against him on the occasion of every election for the balance of his life. He had felt this himself, and had no doubt it was the case with other gentlemen. Thus the firmness of a legislator was put to the test. But this bill, it had been remarked by the Senator from Massachusetts, had passed two or three times. In reply to this, he would say that it had been well remarked, by the soundest statesmen, that those bills were the most dangerous which passed with the most rapidity and with the least discussion. For example, was there a member present who did not feel mortified when he reflected on the heedless speed with which a bill was hurried through, by which two individuals of this city were authorized to call on the Treas ury to an unlimited extent? Yes, it has been considered a plume in the cap of a high public functionary, that he

SENATE.]

has determined, on his own responsibility, to arrest that expenditure at four hundred and fifty thousand dollars, when we, sir, (the Senate,) never dreamed, when we passed the law, that we were going to expend ten thousand. Look, said Mr. B., at the monstrous amount of your expenditures for pensions. Who ever dreamed of paying the tithe of what we now annually expend? You have an army, said he, on paper, of revolutionary pensioners alive now, after the lapse of half a century, more than Washington ever saw. With respect to the observation of the Senator from Pennsylvania, [Mr. BUCHANAN,] he concurred with him as to their justice, though he did not agree with him as to their application. He did not know whether the gentleman was a member of the other House when the tariff of 1828 was passed; or, if so, how he voted on that occasion; or whether he then used the arguments that he has used to-day.

[Mr. BUCHANAN said he did not remember how he voted on that occasion, or whether he addressed the House on the subject--that is, to prolong the time for the bill's going into effect.]

Mr. BENTON said he well remembered how he himself had voted, and that his vote had been influenced by the same arguments as those to-day used by the Senator from Pennsylvania. He voted for the longest time, and gentlemen who were now on the other side voted for the shortest time.

We, said Mr. B., used the same arguments then that they use now. There was one continued struggle by himself, and those with whom he acted, to prolong the time; for they viewed the law in the same light that they did those of the despot, which were written in so small a character, and on so high a pillar, that no one could read them. He knew that that leading principle in the Justinian code, and in the code of Napoleon, which requires that the law shall take effect after the lapse of a sufficient time for all to have notice of its passage, was again and again urged on them. The gentleman from Massachusetts was right in saying that goods fell after the passage of the tariff of 1828. He (Mr. B.) remembered being at St. Louis, and he almost thought he was in Holland, when the order came there to the colonel of the regiment of infantry at that post to march them to the Canada line to prevent smuggling. It was predicted, when the law was passed, that smuggling to an enormous amount would be the consequence of it; and the order to the regiment of infantry was an acknowledgment of the justice of the prediction.

Mr. B. said, as there seemed to be a general consent in the Senate for the recommitment of the bill, he would withdraw the motion for the yeas and nays.

[JAN. 5, 1835.

amendment, which was supposed to affect the whole bill, in fact and in intention affected only particular sections of the bill. The errors, he (Mr. W.) repeated, had been accidental. It was due to the Senate to say this.

Mr. BENTON made a brief explanation, which was not perfectly audible to the reporter. He was understood to say that he had accurately construed the amendment in the bill.

Mr. POINDEXTER asked for a division of the motion, so that the question might first be taken on the motion generally to recommit.

The motion to recommit was then agreed to without a division.

Mr. WEBSTER moved to lay the residue of the motion, embracing the instructions, on the table.

Mr. BIBB expressed a wish to hear from the chairman of the Committee on Finance if it was his intention to inquire of the Secretary as to the amount of money which the bill, in its extended character, would draw from the public treasury.

Mr. WEBSTER replied that, if this information was not already before the committee in the official papers which had been received, application would certainly be made for it.

Mr. BIBB expressed himself to be perfectly satisfied with the explanation.

Mr. WRIGHT then rose to state what he understood to have been already done for the purpose of obtaining the information which was alluded to by the Senator from Kentucky. He had been told that the only call made on the Treasury for this information was from a committee of the House of Representatives. The in. formation was communicated to the committee only; and, not being sent to the House, was not to be found on the files of the House. He had been told, by a member of the committee, that he had made search for the letter of the Secretary on the subject, and that it was not to be found; and the original had been destroyed when the Department was burned down. It appeared, therefore, that the information which the gentleman from Kentucky, the Committee on Finance, and he himself, desired, could only be obtained from the different collectors.

The instructions had gone one step further, and had desired that the call on the Treasury should ask as to the competency of the treasury to meet the appropriation provided by this bill; and, if it was not competent, to state in what manner the means could be obtained. He knew not what amount of money would be required, whether a million or a million and a half. But he thought that, if the bill was to be recommitted to the Committee on Finance, inquiry should be made upon these points.

Mr. WEBSTER, in explanation, said that he presumed the gentleman from New York saw no reason to doubt that the Committee on Finance would make every inquiry which a sense of duty could suggest.

[Mr. WRIGHT. Certainly not.]

Mr. WEBSTER resumed: The main reason why be desired the bill to be sent back to the Committee on Finance, unembarrassed by any instructions, was this: that when instructions were sent to a committee, it raised a parliamentary doubt whether the committee could, afterwards, exercise the power to amend any provision of the bill. He wished to avoid being placed in this situation. Another reason was, that a portion of the claims rested on the ground of clear right; and, if so, required no information as to amount to justify their allowance.

Mr. WRIGHT said he was very well satisfied. The motion was then agreed to, and the instructions were laid on the table.

FRENCH SPOLIATIONS.

The Senate then proceeded to the special order of the day, being the bill concerning French spoliations previous to 1800.

Mr. ROBBINS rose and addressed the Senate as follows:

When the grounds of these claims are clearly understood, for which this appropriation is proposed to be made, I should think there would remain no unwillingness to make it; indeed, that our regret would be that this act of justice had been so long deferred.

I am not unaware that this long delay has been supposed to be, and urged by some as an argument against these claims. But let it be remembered that, through all this length of time, with the exception of some intervals, these petitioners have been before Congress, praying indemnity for these claims. The delay of justice, then, if justice has been delayed, does not lie at their doors. And on the part of Government, I hope it will not be contended that a bona fide debt is paid, because the payment has been delayed for any no matter what length of time.

But let me here remark, that the honorable gentleman from New Hampshire [Mr. HILL] is mistaken when he represents that nothing favorable to these claims had taken place in Congress, prior to 1826. As early as the 15th of March, 1802, the House of Representatives had before them a resolution expressed in these words:

"Resolved, That it is proper to make provision by law towards indemnifying the merchants of he United States for losses sustained by them from French spoliations; the claims for which losses have been renounced by the final ratification of the convention with France, as published by proclamation of the President of the United States."

A motion to postpone this resolution was made, but it was overruled by a vote of fifty-four to thirty-three. On the 22d of April following, Mr. Giles, as chairman of the committee, made a report upon this resolution, in which he reported facts without reporting any opinion. It does not appear by the journal that any thing further was done upon the subject at that session; and it fell of course with the unfinished business.

On the 31st of January, 1822, Mr. Russel, as chairman of the committee of the House of Representatives, reported on these claims; and decidedly in their favor.

But why has not the gentleman told us, as the fact is, that, from 1802 down to the present time, there have been thirteen different reports made upon these claims, by successive committees of the one House and the other; and out of this whole number but three unfavorable reports have been made; that nine of the others have been in favor of the claims; and that one, as I stated, reported facts without reporting any opinion.

But dismissing this topic, introduced, I presume, to excite our prejudices against these claims, (for certainly it is not material to their merits,) let us now proceed to the consideration of those merits.

Is, then, this a bona fide debt, due from this Government to these petitioners?

Three-fourths of the claims of these petitioners are for vessels and cargoes condemned by the tribunals of France merely for the want of a role d'equipage; a document made necessary by a decree of their National Assemblya decree passed for no other purpose than to give to those tribunals a warrant for these condemnations. The role d'equipage was to be a list of the crew made out in the particular form prescribed by the decree itself. Now, this decree was wholly arbitrary; and it was in direct violation of our treaties then subsisting with France, which had prescribed the documents which our vessels should VOL. XI.-7

[SENATE.

carry, as the evidence of their nationality, and which did not prescribe this document. It was also in direct violation of the laws of nations, which repudiates any such ground for the condemnation of neutral property. Ten millions of bona fide American property, it is computed, was seized and confiscated under this arbitrary decree. The other fourth part of these claims is for vessels and cargoes condemned under other decrees, equally arbitrary, equally unjust. Decrees, for instance, that made a neutral vessel, if destined to an enemy's port, liable to seizure and condemnation, and even to conflagration on the high seas; decrees, too, that made the having on board a neutral vessel a supercargo, if born in England, though naturalized in the United States, a cause of condemnation.

France hereself, however, let it be remembered, never pretended to justify these high-handed proceedings on the ground of right. She did indeed attempt to defend them on the ground of the necessity created upon her by her enemy; attempting, as that enemy then was, to reduce her by cutting off all foreign supplies, and by famine, but there never has been a moment, not even in the highest phrenzy of her revolution, in which she denied her liability for the property thus condemned. In all our negotiations with France, no minister on the part of France ever interposed that defence against these claims. Never denying, but always admitting her liability for these claims, she only interposed a plea of set-off by counter claims; she ever agreed to pay on being paid, and being restored to her treaty rights.

But our Government felt this outrage upon our neutral rights as a national indignity as well as a national injury; and they invited these claimants to put into their hands these claims, in order that the demand for reparation and indemnity should be made a national concern. In pursuance of this invitation, these claims were confided to the hands of Government. Two several missions were instituted and despatched to settle our differences with France; and the instructions in both instances made it a sine qua non to any treaty, that these claims should be satisfied; yes, a sine qua non to any treaty that these claims should be satisfied.

I do not refer, by name, to the documents on which these statements are predicated, and by which they are warranted; because I presume that Senators have looked into the case, and made themselves acquainted with these documents; and, if so, I trust they have seen, and will recognise the correctness of my statements. (And here I beg leave to observe that, by documents, I mean the authentic and recorded papers of the two Governments, and not the newspaper trash of the day, which the hon. orable gentleman from New Hampshire [Mr. HILL] has thought proper to introduce into this debate, and other ephemeral productions of the occasion, and which passed away with the occasion, and have gone into oblivion.) And because most of these documents have been particularly referred to by the honorable gentleman from Maine, [Mr. SHEPLEX,] with the appropriate comments; and to refer to them again would be a needless waste of the Senate's time. And I further beg to appeal to these documents, as my vouchers, for the further statements which I am going to make; desiring so much credit, and only so much, as they will entitle me to.

Now these claims to indemnity, asserted by our Government to be just, admitted by the French Government to be just, were by treaty released to France by our Government for great and valuable considerations.

In the first place, in consideration of the release by France to the United States from the guarantee contracted by the treaty of alliance, in 1778, and of the abroga tion of that treaty, and of the treaty of amity and commerce, and of the consular convention; containing, as they did, other inconvenient and onerous stipulations