Part 55

Mr. R. here read the fourth resolution:

“That the good people of Georgia, impressed with general indignation at the act of atrocious perfidy and unparalleled corruption, with a promptitude of decision highly honorable to them, did, by the act of a subsequent Legislature, passed on the 13th day of February, 1796, under circumstances of peculiar solemnity, and finally sanctioned by the people, who have subsequently ingrafted it on their constitution, declare the preceding act and the grants made under it, in themselves null and void; that the said act should be expunged from the records of the State and publicly burnt--which was accordingly done--provision at the same time being made for restoring the pretended purchase money to the grantees, by whom, or by persons claiming under them, the greater part of the said purchase money has been withdrawn from the treasury of Georgia.”

This is another of the resolutions not even substantially embraced in the proffered amendment, which has been rejected by the committee. The evidence of the facts contained in the former part of it is to be found in the act of Georgia, which I hold in my hand, commonly called the rescinding act. The report of our Commissioners furnishes the proof of the withdrawal of the money, with a detailed statement of that nefarious business, which in the former stages of this bill has been amply explained. In the rescinding act the Legislature of Georgia take other objections to the usurpation of 1795, besides those founded on its corruption. They deny the constitutional right of their predecessors to have made such an alienation of the public domain, even with honorable views and for a fair equivalent. They declare that their constitution prescribes a certain mode whereby vacant lands shall be sold and granted, and that the pretended act of 1795 is void, not only from its corruption, but from its contravening those provisions. This is a weighty and vital objection. The slow yet equitable method known to the Constitution of Georgia of laying off new counties, granting out the lands, when they were appropriated and settled, laying off and settling others, was ill-suited to the gigantic rapacity of the Assembly of 1795, and their ravenous accomplices, who grasped at every acre within the nominal limits of the State, whether covered by Indian titles, or whether those claims were extinguished.

I must beg leave, in answer to the objection of some gentlemen here, to repeat what was advanced by me in a former discussion of the subject. Georgia ceded this territory to us subject to certain specified claims, arising under Great Britain, under Spain, and under her Bourbon act, as it is commonly called, which has no relation to any of the Yazoo acts, as they are termed. For these claims we have stipulated to provide, moreover paying her a certain sum out of the first proceeds of the lands, as a consideration for the grant. Besides the above-mentioned claims there were others not recognized by, or provided for, in our compact. In relation to these, Georgia gives a reluctant assent, (which is to be inferred as well from the expressions which are used in the treaty, as from the declaration of the Commissioners on both sides,) that we may apply, not exceeding five millions of acres to quiet other claims, generally, without specifying what they are--the appropriation not to exceed the amount above, and to be made within six months from the ratification of the compact, or to revert back to Georgia. Among the claims of this vague description may be ranked those of the Virginia and South Carolina Yazoo Companies (under the act of Georgia of 1789, and those arising under the corrupt act of 1795.) We are at liberty, therefore, to give these reserved five millions of acres to either, or to both, of those descriptions of conflicting claimants, but we are certainly not bound to bestow an acre on one of them, either by compact with Georgia or by our own act of appropriation. When that act passed it was at the close of our session; there was not time to investigate any of these claims. It was then understood that some of them were equitable, and not founded in corruption. If we had not then made the appropriation, the term within which we were permitted to make it, would have elapsed before the next session of Congress. We therefore made the appropriation in the same general terms of our compact with Georgia, pledging ourselves to none, while we thereby reserved the right of examining and recompensing all, in case they should thereafter be found to deserve it. The day of investigation having arrived, you are invited to decline it altogether, and hold that the reservation of the right to give, is converted by some political magic into a duty, and that too by those who propose to give nothing to the companies of 1789, although their claim is embraced by the general provision of our compact with Georgia, and by the terms of our act of appropriation as much as the claims of the companies of 1795.

FRIDAY, March 9.

Government of Louisiana.

The House went into a Committee of the Whole on the bill for the government of Louisiana. The fifth section being read, as follows:

“SEC. 5. The judicial power shall be vested in a superior court, and in such inferior courts, and justices of the peace, as the Legislature of the Territory may, from time to time, establish. The judges of the superior court, and the justices of the peace, shall hold their offices for the term of four years. The superior court shall consist of three judges, any one of whom shall constitute a court. They shall have jurisdiction in all criminal cases, and exclusive jurisdiction in all those which are capital, and original and appellate jurisdiction in all civil cases of the value of one hundred dollars. Its sessions shall commence on the first Monday of every month, and continue till all the business depending before them shall be disposed of. They shall appoint their own clerk. In all criminal prosecutions which are capital, the trial shall be by a jury of twelve good and lawful men of the vicinage; and in all cases, criminal and civil, in the superior court, the trial shall be by a jury, if either of the parties require it. The inhabitants of the said Territory shall be entitled to the benefits of the writ of habeas corpus; they shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great; and no cruel and unusual punishment shall be inflicted:”

Mr. G. W. CAMPBELL moved to strike out “which are capital, the trial shall be by a jury of twelve good and lawful men of the vicinage; and in all cases, criminal and civil, in the superior court, the trial shall be by a jury, if either of the parties require it,” and to insert “the trial shall be by jury, and in all civil cases above the value of twenty dollars.”

Mr. C. said he conceived that in legislating for the people of Louisiana, they were bound by the Constitution of the United States, and that they had not a right to establish courts in that Territory on any other terms than they could in any of the States. Wherever courts were established in a Territory, they must be considered as courts of the United States, and of consequence cannot be otherwise constituted than as courts in the States. The constitution expressly declares that, in criminal cases the trial shall be by jury, and in all civil cases where the sum in controversy exceeds the value of twenty dollars, the trial shall be likewise by jury. In the ninth article of the amendments to the constitution, we find the following words: “In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” The eighth article says: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury.”

I will observe that the right of trial given by this section, to wit: “if either of the parties require it,” is a dangerous mode of proceeding, and may tend unwarily to entrap them. The person brought before the court for a misdemeanor, asked if he requires a jury trial, may be ignorant of the evidence, and may not know the benefits of a trial by jury; he must at all events show a want of confidence in the court, or waive a jury trial. If he does the first, he may sour the minds of the court. The party is thus put in a situation which may be worse than if he was deprived altogether of the right of a trial, by the necessity of making a choice which may operate more against him. The bill therefore does not secure the right of a jury trial, as contemplated by the constitution.

Mr. SLOAN said a few words in support of the motion, which was lost--yeas 20.

SATURDAY, March 10.

Georgia Claims.

Mr. J. RANDOLPH moved the taking up for consideration the resolution offered by him on the claims under the act of Georgia of 1795.

Mr. ELLIOT moved the order of the day on the bill for the compromise of those and other claims.

Mr. GREGG moved to postpone the further consideration of the resolutions till the first day of December next. He was, he said, perfectly prepared to act on the bill for the settlement of the claims, and to give it his decided negative; and should have no objections, but for the lateness of the session, and the great mass of important business that demanded attention.

The SPEAKER said, the motion to consider the resolutions, being first made, must be first put.

It accordingly was put, and carried--yeas 58.

Mr. JACKSON then moved a postponement of the resolutions until the 1st Monday in December.

Mr. STANFORD inquired whether the motion of postponement was not susceptible of a division, so as to apply to each resolution separately.

Mr. J. RANDOLPH hoped the question would be so taken.

Mr. RODNEY expressed the same wish, and that the yeas and nays might be taken on each division of the question. He was opposed to a postponement. He should not have risen at this late period but for the warm opposition the resolutions had received from various quarters, and but for his desire to avail himself of the opportunity to state his reasons for giving them a firm support.

It is objected to these resolutions that they are abstract propositions. By abstract principles, I understand axioms unapplied. But when they are applied to facts, they cease to be considered in the abstract. In geometry there are certain elementary principles which are the basis of all reasoning on any proposition in that department of science. So in law there are principles in the abstract while they remain unapplied, and which bear in every case where facts admit of their application. So in politics certain principles are held sacred, either in the view of right, or in relation to the constitution of a State. But when these principles are applied to a given state of things, they cease to be abstract. In the Declaration of Independence there are several abstract principles, such as “that all men are free,” &c. But when applied to a certain state of things, they are no longer abstract. I apprehend, therefore, that my worthy friend from Pennsylvania will, on more mature reflection, perceive that the principles contained in the resolutions bearing on facts cease to be abstract; on facts which it is necessary for us to decide, and against examining the consequences of which no reason can be urged. But, says another gentleman, we have no jurisdiction in the case; we have nothing to do with the act of Georgia of 1795; we have no authority over it. I confess myself really surprised to be assured, over and over again, that the act of 1795 which gives the House all this trouble, is the corner stone of the present claims, and without which there would not be a shadow of claim, is not to be considered as blended with our proceedings. What! when we are called upon to compromise claims, are we not to go to the cause, to the fountain source, and decide whether they have, or have not, a foundation in justice? Put the act of 1795 out of the way, and would we have ever heard of this compromise? Remove it, and would we have a single claimant before us soliciting a compromise? I consider the act, to Georgia, as involving the all-important point; as intimately and indissolubly blended with the question before us. That question is whether we will consent to give five millions to effect a compromise of claims, directly emanating from the act of 1795; and then, as an incidental question, we are obliged to look at the act of 1795. If the House have authority over the main question, ex vi termini, they have authority over every question incidental to it; and common sense teaches us that it is absolutely necessary to determine on the validity of the act of 1795, in order to decide the justice or policy of compromising claims arising out of it.

Having settled, as I conceive, these preliminary points, I will call the attention of the House to the great point on which their decision must turn. Either the act of 1795 or of 1796 is in force. If that of 1795 is in force the claimants have a legal title to unascertained millions. If that act is not binding, they have no claim at all. If that act is of no authority, there is an end of their title. The tree is cut up by the roots, and all its branches fall. They have either then a title to fifty millions, or they have no title at all. Their case cannot be compared to a common saying, which declares half a loaf better than no bread.

Now let us compare these facts and reasonings with the resolutions. When I rose I intended to have taken them up in order, but as I have been diverted by the course of the argument, I shall pursue the track I have taken. One of the resolutions states “that a subsequent legislature of an individual State has an undoubted right to repeal any act of a preceding legislature, provided such repeal be not forbidden by the constitution of such State, or of the United States.”

This is, I think, a plain and clear axiom. Both legislatures flow from the same source, and are armed with equal powers. What one legislature can do, another may undo, if the interest of the public prescribes it. I know an ingenious distinction is taken, as to the power of a legislative body, between municipal acts and those constituting contracts. The distinction holds to a certain degree as to expediency, but not as to power. When a legislative body forms a contract, it is a solemn thing, and it ought not to be touched, except when the private evil arising from its being annulled should rather be endured than the public calamity arising from its continuance. But still the position of the resolution is perfectly tenable. What one legislature has done another may undo; what one has enacted, a subsequent one may repeal.

Let us examine whether there is any thing in the rescinding act of Georgia at variance with the constitution of that State, or the Constitution of the United States. The whole course of the business shows the previous act to have been a violation of the Constitution of Georgia. The Constitution of the United States declares that no State “shall pass any ex post facto law, or law impairing the obligation of contracts.” That no contract has been impaired, is evident from attending to the sense of the word. I know of no contract formed, either in a legal or equitable sense. Did the Constitution of Georgia authorize her Representatives to rob the people of their property? Or did it authorize them only to dispose of it for their welfare? If they had a right to dispose of it in a wrongful manner, it knocks up the argument at once. If they were vested with a right to rob and plunder their constituents, I give up the point. But until this is shown I shall remain of opinion that they only had the right of disposing of it for the general good. I am not about to travel through the fruitful wilderness of inquiry disclosed in the progress of this affair. But gentlemen say that we have no evidence of corruption. What do they want more than we possess? The whole business has been referred to a set of Commissioners, whose comprehensive powers embraced an investigation of every claim. They have fully examined the claims under the act of 1795, and they have reported that--