ken up, the amendments were severally agreed to, and the bill, as amended, was ordered to be engrossed for a third reading. CENSUS OF THE UNION. The House then went into a Committee of the Whole on the bill providing for the enumeration of the inhabitants of the United States. After making several amendments to said bill, the committee rose, and reported the bill with amendments to the House. Whereupon, the bill with the proposed amendments was committed to a select committee, consisting of Messrs. FOSTER, GOODHUE, SHERMAN, LAWRENCE, SCHUREMAN, CLYMER, WHITE, SENEY, SMITH, of South Carolina, BALDWIN, and MADISON. REMISSION OF FINES. [JANUARY, 1790. may also open a door for cabal, if at any time the friends of the Senators are employed on such a mission. If the Constitution is silent on this head, and I presume it is, the principle of expe But do gentlemen suppose that they will acquire diency will never lead us to this amendment. a greater degree of security? I apprehend this will not be the case; the President is as nearly related to the people as the Senate are; he will be equally careful of their interests, and he is not from his situation, so exposed to the effects of an intriguing cabal as they are. Hence, I presume the point of security is equally against the motion. Mr. STONE. If we adopt the ideas of the committee, and give to any body a discretionary pow er of disposing of the public moncy, it should be given to the President, by and with the consent of the Senate; because the Constitution has vested them with equal authority in every trans Mr. AMES, from the committee to whom was referred the report of the Secretary of the Trea-action relative to this business. If you give an sury on the petition of C. Sadler, reported that provision ought to be made for the remission or mitigation of fines, penalties, and forfeitures, in certain cases. The report being agreed to, it was referred to the same committee to bring in a bill accordingly. Mr. AMES then presented the draught of a bill conformably to the order of the House. FOREIGN INTERCOURSE. The order of the day being called for, the House resolved itself into a Committee of the Whole on the bill to provide for the means of intercourse between the United States and foreign nations. The bill authorizes the President to draw for a sum not exceeding forty thousand dollars, to compensate the services of such officers as shall be sent abroad. Mr. LIVERMORE moved to make this an annual appropriation, which he supposed was the intention of the committee who brought in the bill. Mr. LIVERMORE's amendment was adopted. Mr. LEE said, that, as the Constitution had vested in the President, with the advice and consent of the Senate, the power of appointing ambassadors and other public ministers, he thought they ought to be equally interested in proportioning their salaries; and further, the President ought not to be empowered to draw money for those purposes without their advice and consent. He thought it would be well to determine whether the Constitution did not bind them to adopt this idea; and, in order to obtain the sense of the House on it, he would move to amend the clause by inserting the words "by and with the consent of the Senate," after the word "President." Mr. SMITH, of South Carolina. It appears very clear, from the Constitution, that the Senate is connected with the President in the appointment of the officers noticed in this bill; but yet I do not presume it follows, as a matter of course, that they should be connected in apportioning the salaries, or drawing for the money. If it is not enjoined by the Constitution, it will be wrong to make such an arrangement, because it will diminish the responsibility of the Executive officer; it influence to the President superior to the Senate, in any thing relating to the intercourse between the United States and foreign nations, you deviate from the principles of the Constitution. If he is to form treaties, by and with the advice and consent of the Senate, they ought to have an equal influence over the persons who are to conduct the negotiations. If you give equal power to A and B to transact your business, and they employ agents, and you give the means of payment exclusively to A, I leave it to any person of candor to say which of the two will have the most influence in conducting it. If A is also to have the power of giving a large or small salary, he will have fire times the influence that the other will. From hence I infer, that if you give a discretional pow er at all, you should give it equally to the persons who are to constitute your agents. Mr. HUNTINGTON observed, that this subject had been discussed in the committee, and it was determined to vest the discretionary power in the President alone, of drawing for the money as circumstances might require; because it might hap pen, that the money might be wanting during the recess of the Senate, and it would hardly be expedient to call that body together for the purpose of making a draft upon the Treasury for a small sum of money; it was also judged prudent to leave it at the discretion of the Executive officer to apportion the salaries; because officers of equal rank might be well compensated with a less sum at some Courts than at others. He apprehended no danger could arise, because the highest sum that could be given was proposed to be fixed by the law. Mr. SEDGWICK.-As far as I am concerned bringing forward this bill, two considerations influenced me not to concur in the idea of the gen tleman from Virginia, and they were these: one arising from the consequences naturally attending such a combination of the departments of Govern ment; and the other, the responsibility which we ought never to lose sight of when we are providing for the distribution of the public money. has told us that we give an unbounded influence The gentleman from Maryland (Mr. STONE) JANUARY, 1790.] Foreign Intercourse. [H. OF R. or the President and Senate. If they could apportion themselves, they might authorize another body to do it; for he presumed, that neither the President, nor the President and Senate could contend for this power as a matter of right; the question then seemed to him to turn altogether upon the expediency, which was conceded to be in favor of the manner prescribed in the bill. to the Executive officer, because we enable him to apportion the money among them. That gentleman, perhaps, did not attend to the bill, which provides expressly for the several grades of officers which the Constitution supposed, in the ordinary events, would be employed in superintending the interests of the United States at foreign Courts. If he had observed this, he would not suppose that the discretion of the President gave him an improper influence. These officers cannot be ap-dent was confined within precise limits; he could pointed to any situation, nor to any rank, but with the advice and consent of the Senate; no particuiar character can be selected by the President; therefore, I presume, the Senate have all the agency he wishes them to possess. Mr. STONE understood that the President was at liberty to give any thing under nine thousand dollars to a minister plenipotentiary, or under five thousand to a resident, or three thousand to a chargé des affaires; if so, he was at liberty to pay them well or ill, as he should conceive they merited. Mr. SEDGWICK.-When it is said that he shall not give a larger sum to a minister of the first grade, I presume that the payment of that particular sum will generally take place; but there are other circumstances attending this business which show the propriety of vesting the discretionary power in the President alone. Suppose a minister actually appointed, and some incidental business should arise, to occasion an actual expenditure of part of this money; for example, a minister at the Court of Prussia might find it necessary to remove some obstructions to his negotiations which had arisen at the Court of Russia; he would be obliged to apply to the President to authorize him to take measures for its prevention; but as money would be essentially necessary to effect the object, the President, though he approved of the idea of the minister, could do nothing without calling the Senate together, if it happened to be a recess; the business would not progress without an expense of more than, perhaps, double the sum that was necessary. To provide for cases of this kind was one of the objects the committee had in view; another was, that the person who touched the public money should be responsible for the expenditure. If the money is to be drawn by the President and Senate, so diffuse is the responsibility, as to be considerably weakened, if not altogether destroyed. These were the considerations that operated conclusively with me, and determined my judgment in favor of the bill as it stands. Mr. LAWRENCE said, that there was a Constitutional necessity that the President, by and with the consent of the Senate, should appoint all the officers employed in foreign negotiations; the same necessity existed with respect to making treaties; but he did not conceive there was any Constitutional necessity for connecting the Senate with the President in apportioning the salaries; it was altogether in the power of the Legislature; they might apportion the salaries and fix them by law, if they thought it convenient, without encroaching upon the right of the President, He remarked that the discretion of the Presi not grant a larger salary to the officers than that prescribed in the bill; all that he could do was, therefore, to give less where he thought less would be sufficient, of which he conceived the President to be the proper judge. Mr. STONE said, that gentleman had not replied to his observation, drawn from the Constitution; he had contended that a discretionary power in the hands of the President, to give a greater or less salary, would give him a greater influence than the Constitution had contemplated. The Constitution had given to the President the power of making treaties; but it must be done by and with the advice and consent of two-thirds of the Senate. Do we then not depart from this principle, when we increase the agency of the President? If it is not contrary to the letter of the Constitution, I presume it is contrary to the principle of it, and we are bound to administer this system of Government upon its real principles. He believed that the President knew very well what would be a proper sum to give to every officer of the diplomatic corps, at all the Courts of Europe; but it did not follow that the Senate was without an equal knowledge; he would always attribute as much knowledge and integrity to that body as to the Chief Magistrate, and this he did on the principle of the Constitution, which supposed that there was equal safety and equal propriety in authorizing them to attend to such part of the public interest as was connected with the appointment of their servants employed in the intercourse between the United States and foreign Courts. However, if this amendment was ever made, he should be against the bill, for two reasons; one, because it vested a discretionary power in the disposal of public money; and the other, because it incurred a perpetual expense, which he hoped at some day would be found to be unnecessary. Mr. LAWRENCE did not apprehend the President would derive any influence from the power of drawing for the money necessary to pay the officers their salaries. He supposed, however, that it would be proper to limit the bill; because the circumstances of the Union might require a less sum perhaps than was contemplated at the present time. Mr. STONE supposed, on a variety of occasions, that the President may wish for one person and the Senate for another. If the person approved by the President be rejected by the Senate, and their favorite employed, the President can make his situation so irksome, on account of his salary and the manner of payment, as to induce him to a voluntary resignation; or if he continues in office, he must change his disposition and be subservient to the Magistrate who can render him more easy in his employment. And can gentlemen say that this is not an influence? Now, if it is admitted to be but the smallest degree of influence, it is contrary to the principles of the Constitution, which interests the Senate equally with the President, in the whole business of negotiation. It is not to be apprehended that any danger will arise, during the present administration, from a trust of this nature; but he was not willing to establish a precedent which might operate hereafter to warrant the Executive in the exercise of an unconstitutional power. Mr. SHERMAN.-The establishment of every treaty requires the voice of the Senate, as does the appointment of every officer for conducting the business. These two objects are expressly provided for in the Constitution, and they lead me to believe that the two bodies ought to act jointly in every transaction which respects the business of negotiation with foreign powers. But the bill provides for the President to do it alone, which is evidently a deviation from the apparent principle of the Constitution. And what do gentlemen urge as an argument to induce the committee to adopt their idea? Why, that the singleness of the officer who appropriates and disburses the public money, will insure a higher degree of responsibility than the mode recommended, at least by inference, by the Constitution. This argument would serve to prove, that a single person ought to exercise the powers of this House-consequently, it goes too far. There is something more required than responsibility in conducting treaties. The Constitution contemplates the united wisdom of the President and Senate, in order to make treaties for the benefit of the United States. The more wisdom there is employed, the greater security there is that the public business will be well done. As to the circumstance of drawing money out of the Treasury, it is of little consequence; but if a discretionary power is to be exercised in apportioning the salaries of the Ministers, there will be more security in connecting the Senate with the President. Mr. SMITH, of South Carolina.-Gentlemen seem to confine their views to ministers employed in making treaties; but this is not all that the bill refers to. Many officers may be established in the diplomatic line without being concerned in making treaties. A minister may reside twenty years in France without being employed in the formation of any treaty whatever. A treaty may be negotiated without the intervention of any person in such a character; or a person may be employed distinct from him, as was the case in the late commercial treaty between France and Great Britain. If the Constitution is involved in the present question, it is because the Senate are connected with the President in appointing the officer. But this doctrine would extend too far. The Senate are joined in the appointment of all superior officers; it would then follow as a consequence, that [JANUARY, 1790. they ought to be concerned in affixing the salaries of them. It would apply, on the same principle, to the Secretary of the Treasury, and every other of the Heads of Departments, except the Judges; it would not extend to them, only because it requires that their salaries shall be permanent, Another inconvenience would result: A Senator might be sent on an embassy, and being, from his situation in that body, in habits of intimacy with all the members of it, there would be danger of an improper allowance being granted to him. These objections, besides the probability of the President's being obliged to take some steps in the business during the recess of the Senate, show the necessity of vesting this discretionary power in the President alone, where gentlemen admit there is the greatest degree of responsibility. But the Constitution does not appear to trust that equal confidence in the Senate; for it gives the President the first and greatest influence. It is he who is to nominate the person, and the concur rence of the Senate may generally be expected to follow, as a matter of course. After giving him this influence, little danger can be supposed to arise from vesting in him a discretionary power which is absolutely necessary, and for the proper exercise of which he is highly respon sible. Mr. SCOTT thought this measure appeared like an expedient, into the use of which they were falling for want of information. The very pre amble which the committee had affixed to the ball warranted the idea. But he not only doubted the propriety of the expedient, but also whether the committee had a right to adopt it. He thought, however, it was a question well worthy of discussion, whether this House was well warranted to commit the appropriation of the money of the people of the United States to any particular body, whether it was the President alone, or the President and Senate combined. He thought, from the first view of the subject, that the voice of this House ought to be given to the disposition of every sum that goes out of the Treasury, and consequently he objected to the principle of the bill, and should vote against it, with or without the amendment. But if the bill must pass in its present form; if the apportionment of the several salaries was so great a secret as to elude the search of the House, and their information must continge in its present incomplete state, he should vote for that mode which appeared to give the greatest se curity; but he could not help believing the House was adequate to forming a complete provision o this head: he did not see what was to prevent them from running the routine of every Court in Europe, and apportioning, as they proceeded, the salaries of every grade of officers in the diplomatic corps, provided a different sum was necessary France, Britain, and Genoa. He just mentioned be paid to ministers of equal rank at the Courts of his objection to the committee, to prepare the for a motion he intended to make when the Speaker resumed the Chair; which was, to commit the bill to the Select Committee, in order to make special provision therein. to Mr. MADISON remarked, that the amendment offered by his colleague (Mr. LEE) would not decide the question for which it was intended; because the part of the bill into which he moved to have it inserted, only related to the power of the President to draw for the money, which was a thing totally distinct from apportionment, and which could be better performed by the President alone than connected with a large body. Mr. LEE hereupon withdrew his motion, and having modified the whole clause of the bill, so as to embrace this question, "Whether the advice and consent of the Senate ought not to be had in the exercise of the discretionary power of apportioning the salaries?" proposed it in order to take the sense of the committee. Mr. BENSON said, it would be wrong to blend the Senate with the President, in the exercise of an authority not jointly vested in them by the Constitution; and in any business whatever of an Executive nature, they had no right to do it any more than they had a right to associate a committee of this House with him. Now, he had not yet heard any gentleman say the Constitution expressly commanded the association moved for, and unless it was a command, he presumed they were not disposed to conform to it. Mr. LEE informed the committee, that his motion was likewise intended to strike out the provision for contingent expenses; not that he thought them disallowable, but because he wished for a general bill providing for all the contingents of the Government. FOREIGN INTERCOURSE. [H. OF R. Committee of the Whole, Mr. BALDWIN in the Mr. JACKSON.-The question before us, I presume, turns upon the propriety or impropriety of trusting the President alone, or the President and Senate, with a discretion in the disposition of the public money. It will be a matter of indifference to me which of these it is given to; but I am clear we have the power to give it to whom we please; we may even give it to a committee of this House, if we deem it expedient. But I am inclined to give it to neither. The appropriation of public money belongs, in a peculiar manner, to this House, and I am for retaining the power in our own hands. It was objected to this, that it would take up time; but I ask, for what were we sent here, but to watch over the public treasure? Gentlemen have said, that the President and Senate ought to have discretionary power in allowing salaries to our ministers abroad, because they are best informed what will be a proper compensation for the service which they have an exclusive right to order to be performed. I beg these gentlemen to look at the law passed last session, providing for commissioners, which commissioners, by the by, were, to all intents and purposes, officers of the diplomatic corps. Did this House view themselves as inadequate to say what would be a proper compensation for any gentleman the President might employ? No, sir; this House annexed a daily pay to the office, sufficient to procure good men. Why cannot the same be done at this time? Did the late Congress ever think of vesting such a discretionary power in their President? Certainly they did not. On what principle, then, is it contended that we should vest a discretionary power in an individual? Is it because it will take up our time? That is a poor excuse. It is out of our power to learn what is sufficient to maintain a minister at Paris, Madrid, Amsterdam, or London, or to discriminate between them and Genoa. If we are not possessed of full information on this head, cannot we acquire it of the proper officer? Will not the records of the late Congress elucidate the subject? Is it not fair to suppose, that what was sufficient three or four years ago, will be sufficient now; or if a difference is necessary, we can judge thereof as well as another? But any how, sir, I am clear for keeping the power of disbursing the public money in our own hands, If we adopt this bill now, on some future occasion we shall have to go further; and the princiThe engrossed bill for giving effect to the laws ple that one is more responsible than many, will of the United States therein mentioned, in re-lead us to establish an arbitrary Government. spect to the State of North Carolina, was read the third time and passed. Mr. SEDGWICK was as much opposed to the amendment in this form as any other. He would ever be in favor of singleness in the Executive, but especially when it was proposed to join with it a body that existed forever-for this was his idea of the Senate ;-a body in which every member, from their long adherence thereto, learned to understand each other, and might, on any occasion, impede the progress of the other branch of the Government to the injury of the whole. Mr. LEE said, these ministers were the joint servants of the President and Senate, and therefore ought to be equally under their care; they had a joint agency throughout, and therefore they ought to have the same in apportioning the compensation for their services. Mr. LIVERMORE deemed the question of some importance, and therefore wished for time to consider it more fully. In order to obtain this, he moved the committee to rise and report progress. This motion obtained, and the House adjourned. WEDNESDAY, January 27. The bill for the remission and mitigation of fines, penalties, and forfeitures, was read a second time, and committed to a Committee of the Whole. Mr. BOUDINOT conceived that this difference of opinion rose from not attending fully to the subject-matter of the bill on the table. Gentlemen seemed to argue, that a discretionary power, with respect to the disbursement of the money granted in the bill, ought not to be vested in the President H. OF R.] Foreign Intercourse. [JANUARY, 1790. but I differ from this opinion, and think that the power of reducing a certain sum enables him to fix the sum as much as if it had been in his dis cretion to raise it. It is, in either case, doing a complete Legislative act, which the Constitution has in part assigned to this House, and which we cannot dispose of to any man or body of men. If the committee join with me in this sentiment, they will concur in the rising of the committee, in order to have the bill recommitted to a select committee, to bring it in upon differen principles. Mr. SEDGWICK Would have no objection to ge through and fix the salaries in the manner some gentlemen wished; but he feared the House had not sufficient information for that purpose; but then, in the opinion of the gentleman las up they were obliged to do it in this way. Now he did not believe such a necessity existed; because he was satisfied, from the Constitution, and the construction put upon it by the House at the last session, that it was in the power of the Legisla ture to vest a discretionary authority in a proper body to dispose of specified sums for spe cific articles. How else could the business of the quartermasters' or commissaries' department performed, when such business was required But, though he did not approve of the gentleman's reasoning, he would vote for the rising of the committee, because he did not think they hat sufficient information before them to warrant 1 decision. alone, because the Senate were connected with him in appointing the ministers among whom it was to be distributed. Now this objection, he thought, had been fully answered; therefore, he should make no further observations upon it. But the gentleman last up opposed this discretionary power altogether, whether vested in the President alone, or the President in conjunction with the Senate, because he supposes the House is competent to decide. Now, I conceive we are so circumstanced as not to be able to ascertain the proper sum required by every diplomatic officer who may be sent to the various Courts of Europe, and other quarters of the globe. Now, what power do we propose to vest in the President? Not that of giving away the public money in such a manner as he may please; but that for certain services he shall give a sum not exceeding a fixed amount; if he can get the business done for less than we suppose it deserves, it is a proper caution that we use to enable some one to reduce it. And who is so proper as the President? The gentleman says, we should fix the salaries of ministers at the different Courts. I much question the propriety of making such discrimination in a public act. I had rather refer it to the Executive Magistrate, under such restrictions and limitations as are provided in the bill. Mr. SCOTT.-The subject in dispute I view but as a secondary consideration, Mr. Chairman. I think we ought first to determine upon the principle, whether a discretion can be given at all. This was the idea I suggested yesterday, and which has been again brought forward by the gentleman from Georgia. Now, to decide this question, we ought to inquire whether this power is of an Executive or Legislative nature? I think disposing of, or giving away sums of public money, is a Legislative, not an Executive act, and cannot be performed in any other way than with all the formalities of Legislative authority. This being my conception of the business, I shall take no notice of the propriety of giving it to the Pre-dollars to be expended in the business of Indian sident, or to the President and Senate, because the same objection lies against both; it would be improper to give it to either, because we have not authority so to do; it being a Legislative transaction, we cannot put the part which depends upon us off our own shoulders, or on the shoulders of any other. It has been said, we cannot fix the necessary sum for each, without making invidious distinctions between foreign nations. If that argument amounts to anything, it amounts to this, that all officers who are sent abroad must have an equal compensation; for if a discrimination is made in any manner, it amounts to a distinction, and must be invidious. But I cannot see a distinction in this light; we may have occasion for officers who have little to do; and it cannot be thought invidious that we do not pay them as much for doing less business, as we do others for doing more, or who are put to greater expenses in performing their duties. It is said, that the proposition does not amount to an absolute appropriation by the President; Mr. SMITH. If the doctrine of the gentleman is true, it is flagrantly violated at the last session and that by the very act referred to by the gen tleman from Georgia. He observed, that we red the pay of the commissioners who were sent to treat with the Creek Indians, at eight dollars per day. True, sir; but we did not limit the whole sum which should be given them; they were em ployed for a term in the discretion of the Presi dent; but besides, we appropriated forty thousand treaties, and that at discretion. The Senate, to be sure, reduced this sum to twenty thousand. which the House ultimately agreed to; but in the first instance we agreed to appropriate forty thousand. We certainly did not think we acted unconstitutionally at that time; and yet, all tha we directed the expenditure of was but a serenth or eighth part of the amount. From some papers before this House, but which it may be improper to notice very particularly we find that instructions have been signed by the President alone, and he it was who drew the money for certain uses out of the Treasury; th is a precedent in favor of the bill as it now stands The case referred to, respecting the practice the late Congress, is not at all in point; the lat Congress were invested with both Legislative a Executive powers, it was therefore they, a they only, who could accomplish the whet business. Mr. JACKSON denied having said that Congres had not power to vest the President with a disere tionary authority in the case now before the |