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H. OF R.]

Abrogation of Treaty with France.

[JULY, 1798. the United States may abrogate the treaties | mit their speaking to them, although they with France? Is it because the Legislature may, waited for months at the palace-gate of Directoat pleasure, set aside a treaty? If it is proper rial Arrogance supplicating in vain for an auto do this, without any external cause, a pre- dience. Were the gentleman from Maryland to amble is needless in the present instance. Ac-go himself, or send one of his clerks, to present cording to his view of the subject, the act was a demand for a sum justly due to him, if his founded on a different principle. France has debtor, instead of discharging or attending to violated the faith pledged by her treaties with the account, would not consent even to hear America: this by the law of nations, puts it him on the subject, but should kick him from within the option of the Legislature to decide, the door, or order a servant to do it, would not as a question of expediency, whether the United the gentleman consider such conduct as a refuStates shall any longer continue to observe their sal to satisfy the demand. He who knows that stipulations. It is owing to the perfidy of the claims of justice merit the respect of GovernFrench Government that the abrogation of our ments, as well as of individuals, and ought treaties with that nation has become justifiable never to be neglected without reasonable cause, and necessary. As an American, he hoped the must know that evasions, intentional procrastiUnited States would always regard the faith nation, and affected delays, are equivalent to a due to treaties, and that all their acts would, on refusal of satisfaction. This is the doctrine of the face of them, appear consistent with it. In reason, of common sense, of municipal law, and this respect, he wished the conduct of the of the law of nations. The facts stated in the American Government to exhibit a marked preamble, therefore, are strictly true; they are contrast to French perfidy. It is of importance established by the very statement which the to the fairness of our national character. There- gentleman has made to disprove them. And fore it is that the facts should be stated which since he has made a question on the subject, it have led to this measure. is of additional importance for the Legislature to declare its conviction of their truth.

Mr. CRAIK believed with the gentleman from Connecticut, last up, that from the declaration of his colleague this question was of consequence. He believed gentlemen were now called upon to testify to the truth of this statement, since it had been doubted. The people ought not to be left in doubt on this subject.

The gentleman from Delaware, in support of the amendment which he has moved, supposes it sufficient to state one cause for setting aside the treaties. He is understood to admit that a sufficient cause should be stated. In this principle, said Mr. D., we are agreed. But the question arises, whether a violation of the treaties on the part of France is, of itself, sufficient for setting them aside? The idea of Mr. Mr. OTIS said, exactly the same effect which D. was, that it would not be sufficient, accord- had been produced upon the mind of the gentleing to the liberal principles which should be man last up, was also produced upon his. Becherished in the United States. A treaty might fore he had heard the arguments of the gentlebe violated by the imprudence of some person in man from Maryland in its favor, he intended authority, or by persons acting without author- to vote for the motion of the gentleman from ity; and yet the foreign Government, on proper Delaware, as being more concise, and as he representations, might be willing to redress the thought stating sufficient ground for the act injury. In such case, it would ill become the about to be passed; but when that gentleman Government of the injured party immediately says we have no evidence of reparation for the to dissolve friendly connections. Why is it now injuries committed upon our commerce being deemed requisite to abrogate the treaties by refused to be made, the abhorrence he felt at the which this country has been connected with idea of being ranked among members of this France? It is because France has not only opinion would lead him to vote against it. He violated them, but has also refused that atten- believed the facts stated in the preamble unquestion which was due to our representations on tionably true, and he did not think there could the subject, and persists in the violation. On have been a man in the United States who had this account, and in order to show that the a doubt on the subject. He believed there could United States were completely justifiable in be no doubt that when a sum of money is negtaking the measure, he was against the amend-lected to be paid, when due, though the debtor ment of the gentleman from Delaware, and in favor of retaining the several clauses of the preamble.

A gentleman from Maryland (Mr. SMITH) has declared himself in favor of this amendment, because, in his view, there is no proof that our claim for the injuries committed on our rights, as a neutral nation, have been refused to be adjusted by France. The reason assigned for this opinion is so extraordinary that it may astonish every man acquainted with subjects of this nature. It is, that the French would not receive the Envoys charged with this business, or per

may refuse to see any person authorized to make the demand, that it is legally refused to be paid.

If the documents on the table were examined, Mr. O. said it would be found, that so far from Mr. Talleyrand having listened to the claims of our Commissioners, he had expressed his surprise that they should have been made, alleging that the priority of claim was on the part of the French Government. Mr. O. made several other observations, when he concluded by saying, that if any offers of pacification were made by men of the description of those at present in power in the French Directory, he should have no con

JULY, 1798.]

Abrogation of Treaty with France.

[H. OF R.

fidence in them: he should think them insidi- | a preamble is to be adopted, it ought to contain ous, and that they originated in their fears, those reasons which operated in producing the and were intended to effect our ruin. law. He thought this would be more correctly stated by leaving the preamble as it is, than by adopting the amendment.

Mr. HARPER said he would say only a few words in justification of his vote in favor of the present motion. He disliked preambles altogether. He voted against the one from the Senate, and he should be in favor of reducing this; for, if we must have a preamble, he thought the less the better. It is the business of the Legislature, Mr. H. said, to pass laws; if a manifesto is proper to be published on this occasion, it would more probably fall under the Executive Department. It is his business to issue State papers, and he could do it much better than it could be done in this House. He was sorry it should be thought necessary to have any preface at all to the law, as it was departing from a good old rule laid down by Congress.

Mr. S. SMITH was not convinced, by any thing that had been said against this motion, that what he had before stated was ill-founded. It had been asked whether, if he sent three persons to demand a debt, and the debtor ordered them away without seeing them, he should not consider the act as a refusal to pay. He answered, he should. But he would put a case, which he thought more in point. Were he to send three persons to settle an account with a debtor, and he were to send two of them home again, but keep one, and promise to adjust the business with him, he should naturally expect he would do so, and should not think of proceeding to any rigorous measures with him, until he heard the result.

The gentleman from Massachusetts has said that he can never consent to accept of any terms from the present Executive Directory, as he shall consider them insidious, and not to be relied upon. After a two years' war, perhaps, he may be of a different opinion. Mr. S. said he should be as unwilling as any man to accept of any terms from the French Government which would be derogatory to the United States; but if the Directory will engage that all the depredations upon our commerce shall cease, and will offer to treat with us on equitable terms, (which he did not think improbable,) he should be for acceding, most cheerfully, to the proposal. Mr. GALLATIN said he should vote against the motion to strike out a part of the preamble agreed to in the Committee of the Whole. He was of opinion with gentlemen, that it was better to pass laws in general, without preambles; but this proceeding is altogether of a novel nature. He knew of no precedent of a Legislature repealing a treaty. It is therefore an act of a peculiar kind, and it appeared to him necessary that Congress should justify it by a declaration of their reasons. Nor could he understand the argument of the gentleman from South Carolina, when he said the Executive Department was better calculated for the publishing of a manifesto than the Legislature, or, in other words, could assign the reasons that influenced Congress better than Congress themselves. If, then,

There was also another reason for preserving the preamble as at present. The French have violated the Treaty of Commerce made with this country; but it would be rather difficult for any gentleman to show that repeated violations have taken place of our Treaty of Alliance with France. The ground of complaint is, that France has violated the Treaty of Commerce between the two countries, and the laws of nations, and not the Treaty of Alliance; and, therefore, a breach of that treaty is not the reason why it is set aside. Besides, if repeated violations of a treaty are sufficient reasons for setting it aside, it could not be forgotten that certain orders had been issued by another country, which are not conformable to our treaty with that power. So, that it is not sufficient to say, that because a treaty has been violated, we will repeal it; but we ought to show to the world that repeated attempts have been made, in vain, to obtain redress.

But the gentleman from Maryland is apprehensive that the statement of the French Government having refused to make reparation for the injuries committed upon our commerce could not be correct, from the possibility of Mr. Gerry having succeeded in making a treaty since the date of our last despatches. He acknowledged there was a bare possibility of the fact being so; but this ought to operate as a reason against passing the bill at all, and not against the preamble.

Mr. EDMOND said, he voted for rejecting the Senate's preamble. It appeared to him that no preamble was necessary. For, if it were necessary to state the reasons which induced the passing of this act, it would be proper to state all the reasons, and to do that would be a work of considerable time; and, upon the facts stated, there might probably be a considerable differ ence of opinion. If reasons were stated for passing this law, and, at a future day, when an adjustment of differences should take place, the negotiator on the part of the United States were to adduce other reasons for passing this act than are stated in this preamble, it might be stated by the negotiator, on the part of France, why do you muster up complaints now, which you did not think of when the law passed? He therefore thought it would be best to pass the law without a preamble at all.

No question in the laws of nations, Mr. E. said, was more clear, than that, when a treaty is violated by one nation, the other party, who has maintained good faith, may either discharge themselves from the obligations of it, or, if kindly disposed, they may set on foot a negotiation, or they may declare war, without doing either of the other two. He laid it down as a further principle, that where there are several treaties in existence between two countries, and

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one of them is violated, the injured party may demand satisfaction; and if it be not given, they may declare the whole of the treaties void. He therefore was of opinion that France having violated our treaty with her, we have a right, without assigning any reason for it, to set it aside; and as we have repeatedly applied to them for redress, and they have refused to grant it, we have a right to reject the whole or to declare war, without assigning any reason whatever. However, if we wish to appear fair in the eyes of the world, we may, if we please, assign a reason for our act; but, in this case, he would either give all the reasons which exist, or make them as precise as possible. He should, therefore, vote in favor of striking out the words in question.

The question to strike out was negatived; and the question being taken on the preamble, it was carried-there being 53 votes for it.

[JULY, 1798. Mr. BAYARD thought the gentleman from Pennsylvania had better bring this subject forward by itself, than have this bill recommitted, as it was no way connected with it. Mr. SITGREAVES Consented.

The question was now on the passing of the

bill.

Mr. MCDOWELL called for the yeas and nays upon it.

He

Mr. NICHOLAS rose, he said, to ask an explanation of the principles upon which this bill is founded. He confessed it was strongly impressed upon his mind, that it was not within the powers of the House to act upon this subject. He looked in vain amongst the enumerated powers given to Congress in the constitn tion, for an authority to pass a law like the present; but he found what he considered as an express prohibition against passing it. found that, in order to quiet the alarms of the people of the United States with respect to the silence of the constitution as to the liberty of the press, not being perfectly satisfied that the Bart-powers not vested in Congress remained with the people, that one of the first acts of this Government was to propose certain amendments to the constitution, to put this matter beyond doubt, which amendments are now become a part of the constitution. It is now expressly declared by that instrument, "that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people ;" and, also, "that Congress shall make no law abridging the freedom of speech, or of the press."

The bill was ordered for a third reading this day. It afterwards received its third reading, and was passed-yeas 47, nays 37, as follows: YEAS.-John Allen, George Baer, jr., Bailey lett, Jas. A. Bayard, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, George Dent, William Edmond, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, Jas. H. Imlay, John Wilkes Kittera, Samuel Lyman, William Matthews, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thos. Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth.

NAYS-Abraham Baldwin, David Bard, Thos. Blount, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, John Dawson, Thomas Evans, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Samuel Smith, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams.

TUESDAY, July 10.

Punishment of Crimes.

The bill, in addition to the act for punishing crimes against the United States, and for other purposes, was read the third time; when

Mr. SITGREAVES wished the bill to be recommitted. It had been suggested to him that great inconvenience arises in the Federal Courts, from its having been conceived that they have not the power to bind to good behavior, and he was desirous of removing this defect, by adding a section to this bill for the purpose.

Mr. N. asked whether this bill did not go to the abridgment of the freedom of speech and of the press? If it did not, he would be glad if gentlemen would define wherein the freedom of speech and of the press consists.

Mr. N. wished gentlemen, before they give a final vote on this bill, to consider its effects; and, if they do this, he thought they would consent to stop here. He desired them to reflect on the nature of our Government; that all its officers are elective, and that the people have no other means of examining their conduct but by means of the press, and an unrestrained investigation through them of the conduct of the Government. Indeed, the heart and life of a free Government, is a free press; take away this, and you take away its main support. might as well say to the people, we, your Representatives, are faithful servants, you need not look into our conduct; we will keep our seats for a little longer time than that for which you have given them to us. To restrict the press, would be to destroy the elective principle, by taking away the information necessary to election, and there would be no difference between it and a total denial of the right of election, but in the degree of usurpation.

You

Mr. OTIS said, the professions of attachment to the constitution, made by the gentleman from Virginia, are certainly honorable to him; and

DEBATES OF CONGRESS.

JULY, 1798.]

Punishment of Crimes.

[H. OF R.

he could not believe that an attachment so land it was declared to be the law of the land. deeply engrafted, as he states his to be, would If, then, we find in an instrument digested by be shaken by this bill. The gentleman had men who were all familiarized to the common caught an alarm on the first suggestion of a law, not only that the distribution of power, sedition bill, which had not yet subsided; and and the great objects to be provided for are though the present bill is perfectly harmless, congenial to that law, but that the terms and and contains no provision which is not practised definitions by which those powers are described, upon under the laws of the several States in have an evident allusion to it, and must otherwhich gentlemen had been educated, and from wise be quite inexplicable, or at best of a very which they had drawn most of their ideas of uncertain meaning, it will be natural to conclude jurisprudence, yet the gentleman continues to that, in forming the constitution, they kept in view the model of the common law, and that a be dissatisfied with it.

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The objections of the gentleman from Vir-safe recourse may be had to it in all cases that ginia, he believed, might be reduced to two would otherwise be doubtful. Thus we shall inquiries. In the first place, had the constitu- find that one great end of this compact, as tion given Congress cognizance over the offences appears in the preamble, is the establishment of described in this bill prior to the adoption of justice, and for this purpose a Judicial departthe amendments to the constitution? and, if ment is erected, whose powers are declared "to Congress had that cognizance before that time, extend to all cases in law and equity, arising have those amendments taken it away? With under the constitution, the laws of the United respect to the first question, it must be allowed States," &c. Justice, if the common law ideas that every independent Government has a right of it are rejected, is susceptible of various conto preserve and defend itself against injuries structions, but agreeably to the principles of and outrages which endanger its existence; for, that law, it affords redress for every injury, and unless it has this power, it is unworthy the provides a punishment for every crime that name of a free Government, and must either threatens to disturb the lawful operations of fall or be subordinate to some other protection. Government. Again, what is intended by "cases arising Now some of the offences delineated in this at law and equity arising under the constitubill are of this description. Unlawful combi- tion," as distinguished from cases nations to oppose the measures of Government, under the laws of the United States?" What to intimidate its officers, and to excite insurrec-other law can be contemplated but common tions, are acts which tend directly to the de-law; what sort of equity but that legal discretion struction of the constitution, and there could be no doubt that the guardians of that constitution are bound to provide against them. And if gentlemen would agree that these were acts of a criminal nature, it follows that all means calculated to produce these effects, whether by speaking, writing, or printing, were also criminal. From the nature of things, therefore, the National Government is invested with a power to protect itself against outrages of this kind, or it must be indebted to and dependent on an individual State for its protection, which is absurd. This essential right resulting from the spirit of the constitution, was still more evident in the language of that instrument. The people of the individual States brought with them as a birthright into this country the common law of England, upon which all of them have founded their statute law. If it were not for this common law, many crimes which are committed in the United States would go unpunished. No State has enacted statutes for the punishment of all crimes which may be committed; yet in every State he presumed there was a Superior Court which claimed cognizance of all offences against good morals, and which restrained misdemeanors and opposition to the constituted authorities, under the sanction merely of the common law. When the people of the United States convened for the purpose of framing a federal compact, they were all habituated to this common law, to its usages, its maxims, and its definitions. It had been more or less explicitly recognized in the constitution of every State, and in that of Mary

which has been exercised in England from time
immemorial, and is to be learnt from the books
and reports of that country? If it be answered
that these words comprise civil controversies
only, though no reason appears for this distino-
tion, yet what is to be done with other terms,
with trial, jury, impeachment, &c., for an ex-
It has been said by
planation of all which, the common law alone
can furnish a standard?
the gentleman that the constitution has specified
the only crimes that are cognizable under it;
but other crimes had been made penal at an
early period of the Government, by express
statute, to which no exception had been taken.
For example, stealing public records, perjury,
obstructing the officers of justice, bribery in s
Judge, and even a contract to give a bribe,
(which last was a restraint upon the liberty of
writing and speaking,) were all punishable, and
why? Not because they are described in the
constitution, but because they are crimes against
the United States-because laws against them
are necessary to carry other laws into effect;
because they tend to subvert the constitution.
The same reasons applied to the offences men-
tioned in the bill.

Mr. MACON said, the same section of the constitution which forbids any interference with the freedom of speech and of the press, extends also to religious establishments, and says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This bill ought to be considered, therefore, as the commencement of a system

H. OF R.]

Punishment of Crimes.

[JULY, 1798.

which might as well be extended to the estab- | The States have complete power on the subject, lishment of a national religion, as to a "restraint and when Congress legislates, it ought to have of speech, and of the press." He acknowledged confidence in the States, as the States ought the bill was less exceptionable than when it also to have confidence in Congress, or our came from the Senate; but it yet contained the Government is gone. This Government deprinciple which he considered as violating the pends upon the State Legislatures for existence. constitution. They have only to refuse to elect Senators to Congress, and all is gone. He believed there was nowhere any complaint of a want of proper laws under the State Governments; and though there may not be remedies found for every grievance in the General Government, what it wants of power will be found in the State Governments, and there can be no doubt but that power will be duly exercised when necessity calls for it.

Mr. M. said, he had attended to all that had been said in support of this bill; but could find nothing like argument in it. When the words of the constitution were so express, it seems impossible they could be understood as the gentleman from Massachusetts had represented them. Several authorities, Mr. M. said, had been read to show that this bill will form a constitutional law. He believed, however, far more might be adduced to show the reverse. He believed the best way of coming at the truth of the construction of any part of the constitution, was, by examining the opinions that were held respecting it when it was under discussion in the different States.

Mr. M. then proceeded to quote the opinions of the leading members in several of the State conventions, in order to show, from the opinions of the friends of the constitution, that it was never understood that prosecutions for libels could take place under the General Government; but that they must be carried on in the State courts, as the constitution gave no power to Congress to pass laws on this subject. Not a single member in any of the conventions gave an opinion to the contrary. The following are the words of Judge Iredell, of North Carolina, on the occasion. Judge Wilson, of this State, and several others, were equally strong; but we have them not at hand, and if we had, to give extracts from the whole would occupy too much room. In the Convention of North Carolina, in reply to a member who had said that the General Government might make it treason to write against the most arbitrary proceedings, but who, it appears, afterwards corrected himself, and said he meant only misprision of treason, and only that it might be done within the ten miles square, where they were to have exclusive legislation, Judge Iredell, thus spoke: "Where is the power given them to do this? They (Congress) have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; but they have no power to define any other crime whatever. This shows how apt gentlemen are to commit mistakes. The powers of the Government are particularly enumerated and defined. They can claim no others but such as are so enumerated. In my opinion, they are excluded as much from the exercise of any other authority, as they could be by the strongest negative clause that could be framed."

Gentlemen, Mr. M. said, might call this a harmless bill; but however harmless it may be, it is a beginning to act upon forbidden ground, and no one can say to what extent it may hereafter be carried. He thought this subject of the liberty of the press was sacred, and ought to be left where the constitution had left it.

Mr. LIVINGSTON said, that notwithstanding the sarcasms which had been thrown out against those who oppose this measure; notwithstanding that kind of accommodating principle which has been set up and reiterated, that the powers of this constitution extend to every possible case-a principle which goes to the destruction of State authorities, and makes that instrument mean any thing or nothing-notwithstanding this, he should again venture to engage the attention of the House while he endeavored to show that this bill is not only contrary to the spirit, but to the direct letter of the constitution.

The constitution declares that "no law shall be passed to abridge the liberty of speech or of the press." Let us inquire, said Mr. L., what was the liberty enjoyed at the time this decla ration was agreed to, and see whether citizens will enjoy the same liberty after this law passes that they then enjoyed. Will gentlemen say that the same liberty of writing and speaking did not exist then that now exists? If they will not say this, must they not allow that the constitution is positive in prohibiting any change in this respect? Gentlemen may call this liberty an evil, if they please; if it be an evil, (which he was far from believing,) it is an evil perpetrated by the constitution.

The constitution seems to have contemplated cases which might arise at a future day. It seems to have foreseen that majorities (far be it from him to believe the present majority is of the number) might be actuated by disposi tions hostile to the Government; that it might wish to pass laws to suppress the only means by which its corrupt views might be made known to the people, and therefore says, no law shall be passed to abridge the liberty of speech and of the press. This privilege is connected with another dear and valuable privilege -the liberty of conscience? What is liberty of conscience? Gentlemen may to-morrow establish a national religion agreeably to the opinion of a majority of this House, on the ground of a uniformity of worship being more consistent with public happiness than a diversity of worship. The doing of this is not less forbidden than the act which the House are about to do. But, it is said, will you suffer a printer to abuse his

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