Part 339

FOOTNOTES:

Of this talent, Mr. Gales has lately given a most remarkable instance, in drawing out from notes which had remained as lost for near forty years, a most important speech of Mr. Randolph, delivered shortly before the late war with Great Britain, and in relation to the then condition of public affairs, both with Great Britain and the Emperor Napoleon the First. Mr. Gales had taken down the speech: the notes of it got into the bottom of a trunk, and lay there till a year ago, when Mr. Gales, searching high and low for matter for the Annals, chanced to find them; and immediately drew out the full speech with the freshness and vigor of a morning report of a previous day's debate.

In the first five years of the existence of the Federal Government, there was no publication of debates in the Senate, that body having sat with closed doors, in its legislative as well as in its executive capacity, until the 20th of February, 1794. Until that time there will be no Senate debates to be abridged; but the proceedings of the body were fully kept in journals, and selections from these proceedings will afford much curious and instructive information to the student of American political history, as showing the manner in which the founders of the government put it into operation, their views in relation to important points, and the changes which the constitution of the Senate has undergone.

A list of the Senators and Representatives who composed the First Congress is inserted at page 20.

his address being in the nature of an Inaugural, and confined to general recommendations, only the beginning and the ending, so characteristic of the father of his country, have been given.

These entries in relation to the Secretary of Foreign Affairs show the early method of communicating with the Secretaries, being called before the Senate to give explanations and bring papers--a method now superseded by reports. The early Senators lamented the change, believing the old way to be the best for getting the information that was wanted, and also the best security against the appointment of incompetent Secretaries.

Another instance of the early practice of the government. The President consults the Senate beforehand upon the negotiation of Indian treaties, and sends the Secretary at War in person to give the necessary explanations: this mode of consulting the Senate since so far departed from that that body has no knowledge of the treaty until sent in for ratification.

This message of President Washington is a strong instance of his deference for the Senate, thus giving up upon its objection the nomination of a citizen which he knew to be fit and meritorious. It was also a strong instance of the deference of the Senate to the Senators of the State interested in the nomination, Col. Fishbourn having been rejected simply because the Georgia Senators preferred another.

These proceedings of President Washington and the Senate, in fixing on the mode of communication between them when treaties were to be formed, or appointments to be made, was their interpretation of the clause in the constitution which requires the advice and consent of the Senate on such occasions. Their interpretation was (according to the obvious meaning of language) that the advice and consent should be obtained beforehand; and the practice was in conformity to that interpretation, as will be seen in the proceedings of the next day, when the President and Secretary at War attended the Senate, and the President gave in a statement of facts, which, in his opinion, rendered treaties with the Southern Indian tribes necessary, and asked the advice and consent of the Senate upon their formation. These proceedings will be read with interest by all who study the working of our government, and observe the changes which its practice has undergone. The change has been great in the mode of obtaining this advice and consent, and greatly to the prejudice of the free and independent action of the Senate in such cases. Instead of consultation and concurrence beforehand, as the words of the constitution imply, and as the practice under Washington required (even to the minute provisions of an Indian treaty), the most important, and even unusual and extraordinary treaties, and with foreign powers, have come to be negotiated (oftentimes) without even the knowledge of the Senate, concealed from it until concluded, and then laid before the body for ratification, as an administration measure--the ratification to be pressed under all the influences of an executive measure, and upon all the considerations of inconvenience and danger to attend the rejection of a measure executively concluded with a foreign power. Under such circumstances treaties are often ratified, and appointments often confirmed, under a moral duress of the Senate, the weight of the executive and the inconveniences of rejection leaving no chance for the free action of the body. President Polk revived the Washingtonian mode of consulting the Senate, in the formation of the Oregon Treaty in 1846, asking the advice of the Senate beforehand on the point of establishing the boundary line with Great Britain on the parallel of 49 degrees; whereof the secret as well as the public history may be seen in the "Thirty Years' View," under the proper year. The personal attendance of the President and Secretaries being found to be inconvenient, that part of the mode of communication was dispensed with in Washington's time.

The question in relation to North Carolina arose out of the circumstance that she had not then accepted the Federal Constitution, and was not at that time a member of the Union.

North Carolina was not represented in the first Session of this Congress, not having at that time accepted the Constitution.

Rhode Island, for the same cause, did not appear till the third Session.

Mr. Bland deceased during the second recess of Congress, and was succeeded at the third Session by William B. Giles.

See notes to list of Senators.

Ibid.

For a list of the Representatives in the first Congress, see p. 20.

For this list see the Senate Journal.

This scale of duties, thus offered by the Continental Congress of 1783, and agreed to by the States, after proposing small specific duties on a few enumerated articles, (wines, spirits, teas, coffee, cocoa, molasses, sugars and pepper,) proposed an ad valorem duty of five per centum upon all other goods, computed on the value of the article at the time and place of importation.

In bringing forward the measure for imposing impost and tonnage duties, Mr. Madison proceeded in the approved parliamentary form, of first discussing and agreeing upon the provisions of the measure, and then appointing a committee to bring in a bill according to what had been agreed upon. Long experience had proved that to be the safest mode of legislation, giving full scope to the whole intelligence of the House, before the measure had taken a form which it might be difficult to alter, as is always the case when a committee brings in a detailed bill, (without previous instructions from the House,) and which, as an act of a committee, and as a matured plan, (though done by a few,) has an authority which resists alteration, and renders amendments, at the instance of a member, most difficult to obtain. This wise and safe practice, of settling the provisions of a bill beforehand, has been nearly abandoned by our Congress--to the great prejudice of beneficial legislation.

Not additional. The enumerated articles were not to be subject to the ad valorem duty of five per centum.

The delegates from that State were gone to meet the Vice-President, who was expected in town this day.

The members of the two Houses of Congress began to assemble on the 4th day of March, but a quorum did not appear in the House of Representatives until the 1st of April, nor in the Senate until the 6th of that month. The organization of the two Houses necessarily preceded the inauguration of the President, which took place on the 30th of April. Some of the ceremonies observed on that occasion, and for some time afterwards, have since been discontinued: as, the proclamation for the long life of the President--his repairing to church to attend divine service, accompanied by the two Houses--his re-conducting to his own house by a committee of the two Houses--the answer to the inaugural address by each House.

In this measure of the tonnage duties the House, as in the case of the impost duties, (and in fact in all other cases in which a law was wanted,) first settled the provisions of the bill in discussing the propositions on which it was to be founded, and then directed a committee to bring in a bill accordingly: but the bill, when brought in, still open to debate and amendment. This was the safe mode of legislation, approved by long experience in the British Parliament, and still more commended by the evils which have grown out of its abandonment in our Congress.

The legislative and diplomatic history of the United States affords abundant evidence of the wisdom of the objection taken in this debate against the indefinite duration of public acts. To repeal such laws, or to terminate such treaties, is almost impossible. Besides the difficulty of getting the three legislative branches to agree at the same time upon the repeal, or the termination, an interest grows up under the measure which becomes identified with its existence, and works for its perpetuity; and when it has been continued for some years, and the temporary circumstances in which it originated have been forgotten, it becomes invested with the sanctity of age, and finds protection in the spirit which dreads change as innovation. Of this character, two acts of Congress, and two conventions with foreign powers, may be mentioned as samples of many in our history, to wit: 1. The Factory system of supplying the Indians with cheap goods through Government agents, established as a temporary experimental measure for three years, &c., under Washington, and which was soon found to be working badly both for the Indians and for the Government, and yet which could not be got rid of for thirty years! nor until after the whole capital had disappeared.

2. The salt tax, and the fishing bounties and allowances founded upon it, revived as a temporary war-tax during the late war with Great Britain in 1812, and now continued forty years after the war has been finished! successfully resisting all attempts at repeal, while burthening the people with an odious tax, and enabling the fishing interest to take some $300,000 annually (near five millions up to this time) out of the public treasury, most of it unduly. Of treaties may be considered as instances the convention with Great Britain for the joint occupation of the Columbia, where the stipulated right of each party to terminate it at pleasure upon a year's notice, could not be exercised for twenty years! and then, with alarms of war and great disturbance to the country. And also the convention of 1842, with the same power for keeping up each a squadron on the coast of Africa, (for the suppression of the slave trade,) for five years; and until either party should give notice for its abrogation. The five years have been out three times over! yet the notice cannot be given; and a temporary measure becomes permanent through an illusory limitation.

The preamble to this act, and the speeches in favor of it, have been greatly relied upon in support of a protective tariff, but without reason, as the speeches themselves, and the rate of duties established, fully show. Every speech showed revenue to be the object of every proposed duty--protection to domestic industry being an incident to result from the accomplishment of that object, and from such moderate duties as were then imposed--the ad valorems being five per centum, 7-1/2 and 12-1/2; and only a single class going as high as fifteen per centum, and that class confined to an article of luxury, to wit: imported pleasure carriages. The specific duties were on the like moderate scale; yet these moderate duties, thus laid for revenue, gave all the protection which was then asked, and to the satisfaction of every part of the Union, and cannot be quoted as any argument for the protective system which so much disturbed the country.

This call to order, and enforcement of it, for so slight a deviation from the point in debate, is a striking illustration of the business habits of our early Congresses, and accounts for the reason (inter alia) why the debates of that early time were so pithy, pointed, sententious, instructive and beautiful.

It is presumable he alluded to Mr. GERRY, a member of a Committee of Congress, appointed to superintend the Treasury.