Part 97

Attest: WM. C. WINSTON,

Clerk House of Reps. M. T.

WEDNESDAY, January 30.

Territory of Orleans.

The Senate took into consideration the amendment proposed yesterday, by Mr. DANA, to the bill, entitled "An act to enable the people of the Territory of New Orleans to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes:" and, on motion, by Mr. CLAY, it was agreed to divide the question; and, on the question to agree to the first division of the amendment, to wit:

Provided, That this act shall not be understood to admit such State into the Union, as aforesaid, unless each of the States shall consent to the same:

It was determined in the negative--yeas 10, nays 18, as follows:

YEAS.--Messrs. Bradley, Champlin, Dana, German, Gilman, Goodrich, Horsey, Lloyd, Pickering, and Reed.

NAYS.--Messrs. Campbell, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Leib, Mathewson, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington.

On the question to agree to the second division of the amendment, to wit:

Provided, That this act shall not be understood to admit such State into the Union as aforesaid, unless there shall be a constitutional amendment empowering the Congress to admit into the Union new States formed beyond the boundaries of the United States, as known and understood at the time of establishing the Constitution for the United States:

It was determined in the negative--yeas 8, nays 17, as follows:

YEAS.--Messrs. Champlin, Dana, German, Gilman, Goodrich, Lloyd, Pickering, and Reed.

NAYS.--Messrs. Campbell, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Leib, Mathewson, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington.

On motion, by Mr. BRADLEY, to postpone the further consideration of the bill to the second Monday in February next, it was determined in the negative.

On the question, Shall the bill be read a third time as amended? it was determined in the affirmative--yeas 17, nays 10, as follows:

YEAS.--Messrs. Brent, Clay, Condit, Franklin, Gaillard, Gregg, Lambert, Mathewson, Pope, Robinson, Smith of Maryland, Smith of New York, Tait, Taylor, Turner, Whiteside, and Worthington.

NAYS.--Messrs. Bradley, Champlin, Dana, German, Gilman, Goodrich, Horsey, Lloyd, Pickering, and Reed.

FRIDAY, February 1.

The credentials of JAMES A. BAYARD, appointed a Senator by the Legislature of the State of Delaware, for the term of six years from the third day of March next: and of WILLIAM H. CRAWFORD, appointed a Senator by the Legislature of the State of Georgia, for the term of six years from the third day of March next, were severally read, and ordered to lie on file.

WEDNESDAY, February 6.

Mr. BRADLEY presented the petition of Charlotte Hazen, relict of the late Brigadier General Moses Hazen, praying a grant of land may be made to her, as a Canadian refugee, or that a small addition, in lieu thereof, may be added to her present pension from Congress, for reasons stated at large in the petition; which was read, and referred to a select committee, to consider and report thereon by bill or otherwise; and Messrs. BRADLEY, FRANKLIN, and GERMAN, were appointed the committee.

MONDAY, February 11.

Bank of the United States.

The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, one thousand seven hundred and ninety-one.

Mr. ANDERSON said that having been a member of the committee who reported the bill before the Senate, and not feeling himself at liberty to oppose the introduction of the report, yet, thinking it might be advisable to try the principle before they proceeded to discuss the details, he should move to strike out the first section of the bill. He would barely observe that, was this not a question which was generally understood, on which not only every member of this House, but every citizen of the United States had made up his mind, he should feel himself bound to offer reasons in support of the motion; but, inasmuch as it was a question which every gentleman had doubtless decided in his own mind, he felt unwilling to take up any more of the attention of the Senate, especially so late in the session, when there was so much business of importance before them which required to be acted on.

Mr. CRAWFORD said that he should proceed, though reluctantly, to explain the reasons of the committee for reporting the bill, which is now under consideration. After the most minute examination of the constitution, the majority of that committee were decidedly of opinion that the Congress of the United States were clearly invested with power to pass such a bill. The object of the constitution was twofold: 1st, the delegation of certain general powers, of a national nature, to the Government of the United States; and 2d, the limitation or restriction of the State sovereignties. Upon the most thorough examination of this instrument, I am induced to believe, that many of the various constructions given to it are the result of a belief that it is absolutely perfect. It has become so extremely fashionable to eulogize this constitution, whether the object of the eulogist is the extension or contraction of the powers of the Government, that whenever its eulogium is pronounced, I feel an involuntary apprehension of mischief. Upon the faith of this imputed perfection, it has been declared to be inconsistent with the entire spirit and character of this instrument, to suppose that after it has given a general power it should afterwards delegate a specific power fairly comprehended within the general power. A rational analysis of the constitution will refute in the most demonstrative manner this idea of its perfection. This analysis may excite unpleasant sensations; it may assail honest prejudices; for there can be no doubt that honest prejudices frequently exist, and are many times perfectly innocent. But when these prejudices tend to destroy even the object of their affection, it is essentially necessary that they should be eradicated. In the present case if there be any who, under the conviction that the constitution is perfect, are disposed to give it a construction that will render it wholly imbecile, the public welfare requires that the veil should be rent, and that its imperfection should be disclosed to public view. By this disclosure it will cease to be the object of adoration, but it will nevertheless be entitled to our warmest attachment.

The 8th section of the 1st article of the constitution contains among others the following grant of powers, viz: to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to raise and support armies; to provide and maintain a navy; to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; to establish post-offices and post roads. This selection contains five grants of general power. Under the power to coin money it is conceived that Congress would have a right to provide for the punishment of counterfeiting the money after it was coined, and that this power is fairly incidental to, and comprehended in, the general power. The power to raise armies and provide and maintain a navy comprehends, beyond the possibility of doubt, the right to make rules for the government and regulation of the land and naval forces; and yet in these three cases, the constitution, after making the grant of general power, delegates specifically the powers which are fairly comprehended within the general power. If this, however, should be denied, the construction which has been uniformly given to the remaining powers which have been selected, will establish the fact beyond the power of contradiction. Under the power to regulate commerce, Congress has exercised the power of erecting light-houses, as incident to that power, and fairly comprehended within it. Under the power to establish post-offices, and post roads, Congress has provided for the punishment of offences against the Post-Office Department. If the Congress can exercise an incidental power not granted in one case, it can in all cases of a similar kind. But it is said, that the enumeration of certain powers excludes all other powers not enumerated. This is true so far as original substantive grants of power are concerned, but it is not true when applied to express grants of power, which are strictly incidental to some original and substantive grant of power. If it were true in relation to them, Congress could not pass a law to punish offences against the Post-Office Establishment, because the constitution has expressly given the power to punish offences against the current coin, and as it has given the power to punish offences committed against that grant of general power, and has withheld it in relation to the power to establish post-offices and post roads. Congress cannot, according to this rule of construction, so warmly contended for, pass any law to provide for the punishment of such offences. The power to make rules for the regulation and government of the land and naval forces, I have shown to be strictly incidental to the power to raise armies, and provide and maintain navies; but, according to this rule of construction, all incidental powers are excluded except the few which are enumerated, which would exclude from all claim to constitutionality, nearly one-half of your laws, and, what is still more to be deprecated, would render your constitution equally imbecile with the old articles of confederation. When we come to examine the 4th article, the absurdity of this rule of construction, and also of the idea of perfection which has been attributed to the constitution, will be equally manifest. This article appears to be of a miscellaneous character and very similar to the codicil of a will. The first article provides for the organization of Congress; defines its powers; prescribes limitations upon the powers previously granted; and sets metes and bounds to the authority of the State Governments. The second article provides for the organization of the Executive Department, and defines its power and duty. The 3d article defines the tenure by which the persons in whom the judicial power may be vested shall hold their offices, and prescribes the extent of their power and jurisdiction. These three articles provide for the three great departments of Government called into existence by the constitution, but some other provisions just then occur, which ought to have been included in one or the other of the preceding articles, and these provisions are incorporated and compose the 4th article. The 1st section of it declares, that "full faith and credit shall be given in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." In the second section it declares, that a person, charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. A similar provision is contained in the same section, relative to fugitives who are bound to labor, by the laws of any State. In the first case which has been selected, express authority has been given to Congress, to prescribe the manner in which the records, &c., should be proved, and also the effect thereof, but in the other two, no authority is given to Congress, and yet the bare inspection of the three cases will prove that the interference of Congress is less necessary in the first than in the two remaining cases. A record must always be proved by itself, because it is the highest evidence of which the case admits. The effect of a record ought to depend upon the laws of the State of which it is a record, and, therefore, the power to prescribe the effect of a record was wholly unnecessary, and has been so held by Congress--no law having been passed to prescribe the effect of a record. In the second case there seems to be some apparent reason for passing a law to ascertain the officer upon whom the demand is to be made; what evidence of the identity of the person demanded and of the guilt of the party charged must be produced before the obligation to deliver shall be complete. The same apparent reason exists for the passage of a law relative to fugitives from labor. According, however, to the rule of construction contended for, Congress cannot pass any law to carry the constitution into effect, in the two last cases selected, because express power has been given in the first and is withheld in the two last. Congress has nevertheless passed laws to carry those provisions into effect, and this exercise of power has never been complained of by the people or the States.