H. OF R.

Evidence in the case of Contested Elections.

DECEMBER, 1806.

The last clause of the 8th section of the 1st article of the Constitution which contains the following words: "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Govofficer thereof," shall be construed so as to comprehend ernment of the United States, or in any department or only such laws as shall have a natural connexion with and immediate relation to the powers enumerated in the said section, or to such other powers as are expressly vested by this Constitution in the Government of the United States, or in any department or officer thereof.

truly terrible; and should I be so unhappy as ever by the Legislatures of three-fourths of the said States, to see the time arrive when State institutions shall be valid and binding as a part of the Constitushall be done away, or when their energies shall tion of the United States. be lost, I should expect soon afterwards to behold the dawn of that melancholy day, which in its meridian will blast the liberties of America, whose evening will close perhaps with their utter and eternal destruction, and be succeeded by a long, a dreary, a dismal, a tremendous night of despotism. I pray God that such a dreadful day may never be permitted to dawn!-that the American people, true to the memorable and glorious principles for which they fought, for which they bled, for which their fathers, their brothers died, may ever cherish, cultivate, and guard them, as well against the secret approaches of corruption as against the open assaults of violence, and effectually guard them against both!-that the arm of usurpation may never reach the State institutions, so essential to the preservation of American liberty!—that co-extensively with the duration of time itself, such institutions may continue to exist, retaining their full portion of energy in this grand and beautiful system; howsoever other systems, founded in erroneous principles, may shrink before the flame of ambition, or be shaken down by the storms of party; howsoever those which have arisen on the ruins of liberty may in their turn be subjected to other changes-howsoever they may experience a train of vicissitudes in the fluctuating course of human affairs.

Much, indeed, sir, might be said in favor of this system of Federal Government, as far surpassing anything of the sort which has ever yet appeared amongst the productions of men; but, being a production of men, it cannot be completely perfect. Admirable as it is, it is a system of experiment; and it is from experiment that its defects are to be discovered. Whenever, therefore, any defect is discovered, which threatens to be of dangerous tendency, I think it behooves this nation, as far as practicable, to amend the defective part. I will trouble the House with no further remarks, however, upon this subject at present; but with their permission will submit this proposition, as an effort towards bringing about an amendment to that clause in the Constitution, which I have read, being thoroughly impressed with the belief that it is materially defective.

I am sensible, sir of the great difficulty of framing a clause, which may effectually guard at all times against improper construction; and therefore cannot have full confidence that the one about to be submitted is such: yet in the proposition the subject will be introduced to the notice of the House, and if the object of it should be deemed expedient, I have no doubt but that one may be framed so as to answer the important purpose. The proposition which, with leave of the House, I shall have the honor to submit, is in the following words:

Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, That the following article be submitted to the Legislatures of the several States, which when ratified and confirmed

amendment, and referred it to a Committee of The House immediately considered the said the Whole on the state of the Union.

FRIDAY, December 12.

The SPEAKER laid before the House a letter from the Governor of the State of Pennsylvania, accompanying the copy of a letter from MICHAEL LEIB, Esquire, containing his resignation of a seat in this House, as one of the members for the said State; also, a copy of the Governor's writ of election to supply the vacancy occasioned thereby, and a duplicate return of the election of JOHN PORTER, to serve in this House, as a Representative for the said State of Pennsylvania, in the room of the said MICHAEL LEIB; which were read, and referred to the Committee of Elections.

The SPEAKER stated to the House that he had received information from the Clerk of the Public Buildings that he was ready to proceed in se curing the ceiling of the Chamber of the House.

CONTESTED ELECTIONS.

On motion of Mr. BIDWELL, the House resolved itself into a Committee of the Whole on the bill to revive and make permanent "An act to prescribe the mode of taking evidence in cases of contested elections for members of the House of Representatives of the United States and to compel the attendance of witnesses," and in addition to the same.

Mr. J. CLAY remarked that in all the contested elections which had been conducted by ballot, a eonsiderable difficulty had arisen in ascertaining from which of the candidates the votes given by unqualified persons should be deducted. For the purpose of removing, or at least lessening of difficulty, he had draughted a new section, which he purposed to submit for consideration. The objection heretofore made to examining the votes, to determine for which candidate they had been given, had been founded on the opinion that it interfered with the sacredness of the ballot. This, if a sound objection, could only apply to persons. legally qualified to vote, as a principle fitted to save the rights of electors, and not of persons not legally qualified to vote. Mr. C. said his object was to authorize a magistrate to examine on oath persons who had voted without being qualified for whom they had voted; that votes thus given might be deducted from the candidate for whom

DECEMBER, 1806.

Evidence in the case of Contested Elections.

they were given. This would obviate much of the difficulty at present existing. Intending to offer such a provision, he moved that the Committee should rise and ask leave to sit again.

H. OF R.

tleman from Massachusetts, who had brought in the bill, would make this motion.

The question was then taken on the rising of the Committee, and carried without a division; when the Committee rose and obtained leave to sit again.

PETITIONS REFERRED.

Mr. HOLMES moved that the Committee of Claims should be discharged from the further consideration of the petitions of Arnold Martin, and Sarah his wife, William Kincaid, John Hargisheimer, Philip Turner, and Ludwig Kuhn, all

Mr. BIDWELL observed that the principle of the gentleman from Pennsylvania was a new one, that they should undertake to decide by law what votes shall not be examined. It appeared to him useless, as it was settled by the Constitution, and unless Constitutional evidence was given to the House of the existence of unqualified votes, this provision would abridge its Constitutional power. A decision on the qualification of elec-barred by the statute of limitations, and that they tors was expressly vested by the Constitution in the House. It, therefore, appeared to him improp er by statute to decide this point, which was the proper province of the House. A provision of that kind would go to put a construction by statute on the meaning of the Constitution, or to interfere with the Constitutional powers vested in the House. Such being his present sentiments he felt a repugance to the proposition.

Mr. J. CLAY said it was true that they could not by law decide what were the qualifications of Electors. But he would ask, if in cases of voting viva voce, where the votes given for a particular candidate were proved not to be good, they were not deducted from him? His object was that the same process should be pursued where the election was by ballot. They had unquestionably a right to say that a man who votes, without being entitled, shall say for whom he voted. Such a provision would not be putting a construction on the Constitution not at present attached to it. It would only require those not entitled to vote to declare on oath for whom they had voted.

should be referred to the committee appointed to consider what provision should be made for such claims; to which motion the House agreed.

Mr. J. RANDOLPH observed that, during the last session, several petitions from persons engaged in the collection of the public revenue, praying for an increase of emolument, had been referred to the Committee of Ways and Means-likewise the report of the Secretary of the Treasury; and that the committee, under the instructious of the House, as well as from the general powers delegated to them, had taken up the subject in a general point of view, in order to modify the existing system, as circumstances required. The subject had required much attention, and after a schedule had been made out, it by some means got mislaid. Mr. R. concluded by moving that the report of the Secretary of the Treasury, together with the petitions, should be referred to the Committee of Ways and Means, which motion was agreed to.

MONDAY, December 15.

Two other members, to wit: GEORGE CLINTON, junior, from New York, and WILLIAM DICKSON, from Tennessee, appeared, and took their seats in the House.

Mr. SMILIE said he had no objection to the Committee rising for the purpose of more fully considering the subject. He recollected that in the State in which he lived this point had often been discussed. Where votes were given viva voce there was no difficulty. But where ballots were received, they could not compel the voter to say for whom he voted. He agreed with his colleague, that it would be no violation of principle to compel the unqualified voter to say on oath for whom he voted. The principle was so plain, it conld not be denied. He hoped, however, that the Com-rence of this House. mittee would rise, that his colleague might be enabled to bring forward his proposition.

Mr. BIDWELL said he was not disposed to precipitate a decision. He had, therefore, no objection to the Committee rising, that gentlemen might mature their ideas on the subject. He would, however, observe that he considered the proposition objectionable in one point of view, as giving a magistrate the right of determining who were qualified voters; a point only to be decided by the House.

Mr. J. CLAY observed that before the question was taken he would suggest the propriety of recommitting the bill, either, to a select committee or to the Committee of Elections, to determine the propriety of his amendment, where the subject might be canvassed, and the amendment so modified as to be unexceptionable. He hoped the gen

A message from the Senate informed the House that the Senate have passed the bill, entitled "An act to suspend the operation of an act entitled 'An act to prohibit the importation of certain goods, wares, and merchandise,' and to remit the penalties incurred under the same," with several amendments; to which they desire the concur

The House having agreed to consider the amendments,

Mr. J. RANDOLPH moved to refer them to a select committee.

Mr. ALSTON Opposed the motion. He believed no reference necessary, as the subject was too plain to require any detailed investigation; if it should be referred, he would prefer a reference to a Committee of the whole House, and, accordingly, made a motion to that effect.

Mr. J. CLAY supported the motion of Mr. RANDOLPH; and stated that the object of the reference was merely to introduce a provision to secure the payment of costs by those who had incurred the penalties of the non-importation act, which otherwise would be chargeable to the United States.

Mr. SMILIE opposed the reference to a select

The Message was read, and, together with the should like it better if it were more extensive. He papers, ordered to lie on the table.

Mr. DANA accorded with the chairman of the Committee of Commerce and Manufactures (Mr. CROWNINSHIELD) in respect to the utility of an At the last session of Congress, an act was accurate survey of the shoal which he had menpassed for another survey. It made provision for tioned, but was against altering the resolution so surveying the coast of North Carolina between as to include any islands at a greater distance than Cape Hatteras and Cape Fear, with the shoals ly-twenty leagues from the shore. The treaty of ing off or between those capes. I understand that measures have been taken for executing this act, but that the vessel employed in the service, and all the papers respecting the survey which had

distance of twenty leagues along the whole of our coast. If any shoals at a greater distance from shore are to be surveyed, special provision for this purpose may be made in the details of a bill which the committee may report. It would be more convenient to specify the details in a bill than in a general resolution for inquiry.

H. OF R.

ing a suspending power in the President, he might, perhaps, have no objection to the measure; but was there at this time any such necessity, when the probability was that the House would not rise until the 3rd of March; and when it could not be known whether important information might not previously reach them? If no necessity can be Mr. CROWNINSHIELD then moved to strike out shown, why now legislate? He was also opposed twenty and insert fifty in the resolution. He was to the amendment, because it looked like holding confident that there were shoals lying more than out to England that we were tired of the non-imtwenty leagues distant from the shore, and he portation act. For these reasons he hoped the thought it important to have them surveyed. It amendment would not be agreed to. might be that there are no islands beyond that distance. He was not certain in regard to them, but he was sure that there were extensive shoals. Mr. DANA suggested that the gentleman (Mr. CROWNINSHIELD) might designate, by way of amendment, particular shoals which he wished to be surveyed.

Mr. Cook, of Massachusetts, doubted whether all of St. George's Bank was within even fifty leagues of the shore. If it were in order, he would move to strike out twenty and insert seventy.

A division of the question on striking out twenty and inserting fifty was called for.

Mr. CROWNINSHIELD at length withdrew his motion, and it was agreed that the resolution should lie on the table.

NON-IMPORTATION ACT.

Mr. J. RANDOLPH, from the committee to whom had been referred the amendments of the Senate to the bill to suspend the non-importation act, made a report, viz:

To agree to the first amendment proposed by the Senate, which is to strike out the following words at the end of the section, "This act shall take effect from and after the passing thereof" with an amendment, viz: to add after the word "remit," as follows: "on payment by the parties by whom such penalty, fine, or forfeiture, may have been incurred, of all costs which have accrued, or may accrue before notice of this act shall have been received by the attorneys of the several districts of the United States."

And to agree to the second amendment, authorizing the President to suspend the non-importation act till the 31st of December.

A concurrence with the first amendment was carried without a division.

Mr. DAWSON moved to amend the amendment of the Senate by substituting the words "public interest," in lieu of the words "public service." Mr. J. RANDOLPH said he did not see how the public interest could be disconnected from the public service.

Mr. DAWSON's motion was agreed to-ayes 43,

noes 40.

Mr. SMILIE said he was against the amendment offered by the Senate. He hoped that gentlemen who proposed concurring in it would show its necessity at this time. The Message of the President had recommended a short suspension of the non-importation act, which had been done by the act passed by the House. If at a late period of the session, circumstances should justify the vest

Mr. J. CLAY said, he did not know that the operation of the amendment proposed by the Senate would be to show Great Britain that we were tired of the act. On the contrary, by making its further suspension conditional, it would show that unless further arrangements were made between the two Governments it would be carried into effect. It was very true, that further information might be received during the session, which might render a repeal of the act proper. But suppose an accommodation should take place between the two Governments between the close of the present session and the commencement of the next-still, notwithstanding this, the law in question must go into force on the 1st July, although every pretext for it was done away. Mr. C. said he was not very fond of placing this discretionary power in the hands of the President. But he did not perceive any other way in which the views of Congress could be accomplished. He was, therefore, reduced to the dilemma, either of giving the President power to suspend the act, or of suffering a measure confessedly hostile, to go into effect after a satisfactory adjustment of differences. The arguments in favor of the passage of the act were that it would induce Great Britain to suspend her depredations, and to recede from her injurious doctrines. If she abandoned these, and made reparation for her depredations, he apprehended all necessity for the continuance of the act would be done away. Why then continue it after the occurrence of these circumstances? If, however, the gentleman from Pennsylvania would point out any other less exceptionable mode, by which the views of the House could be effected, he would adopt it in preference to the amendment of the Senate.

Mr. CROWNINSHIELD remarked that, like the gentleman from Pennsylvania, (Mr. SMILIE,) he could not give his sanction to the proposed amendment. He saw no necessity at this time for authorizing the President of the United States further to suspend the non-importation act. What had the House done? A few days since they had sent a bill to the Senate to suspend the act until the first of July. They had received from that body an amendment further to suspend it until December; and on what grounds? They had received no additional communications from the President. The House, then, to be consistent, ought to pursue the same course they had followed a few days since. Mr. C. said he then voted against a suspension of the non-importation act to the 1st of December. He considered the pro

position under consideration as nearly the same thing; the principle of both was similar. He did not know that he should object to passing a bill late in the session, empowering the President to suspend the act, provided the negotiations were in such a situation as to promise a satisfactory is sue; but he saw no necessity for precipitation. The bill would do as well without the amendment as with it. He should therefore vote against it. A motion was here made to adjourn, in favor of which only four members rose.

DECEMBER, 1806.

adopted; either the prohibition must be suffered to operate from the first of July until December, which, in case of a satisfactory arrangement, would not be desirable, or Congress must be convened to provide for such a state of things, which might be very inconvenient; or the Executive must suspend the operation of the law until the next ordinary session of the Legislature. The latter course appeared to him to be attended with the least evil. He was, therefore, in favor of providing such an authority; and, as the Senate had Mr. BIDWELL said he did not view the subject judged it most expedient to insert it in this bill, in the same light, in which it was seen by his col- although he should individually have preferred a league near him, (Mr. CROWNINSHIELD.) To him separate and future bill for the purpose, he would there appeared to be a material difference between not refuse to concur in the amendment. the amendment of the Senate, now under consid- Mr. SMILIE said, he had but a single additional eration, and the proposition which had been nega- observation to offer; after making which, he would tived by the House, when the bill was before un-confine himself to giving his negative to the der discussion. The one was an absolute suspen-amendment. He had ever held it to be his duty sion of the act until next December; whereas the other was only the provision of a power to suspend it, if an occasion for such further suspension should occur, when Congress should not be in session. To the former he thought there were objections, which did not lie agaist the latter.

not to grant legislative power to the Executive but in cases of necessity. If such a necessity could be shown to exist at present, he would consider whether it were proper to grant the proposed power. But, when there was no such necessity, he would never vest such a discretion in the Executive.

He could not agree to the observation of the gentleman from Pennsylvania, (Mr. J. CLAY,) that Mr. DANA observed that the principle laid down the prohibitory act is confessedly a measure of by the gentleman from Pennsylvania was worthy hostility. On the contrary, he thought it a paci- of attention; but it was extremely questionable fic measure. It was no more than a system of whether it were applicable to the case then before commercial regulation, which, consistently with them. If the amendment of the Senate went to the established laws and usages of nations, we have acknowledge a general power in the President to an undoubted right to adopt. It did no injury, dispense with the laws, a power once claimed as and could give no just occasion of offence. It a prerogative by the King of Great Britain, all was indeed intended to press upon Great Britain. must be against it. But what was the power here One principal object of it was to convince that proposed to be given? To authorize the President Government and nation, that we have the power to continue the natural state of things in this and the determination, by granting or withhold-country. The act of the last session went to ing our market for their manufactures, by peace-change the general politics of the United States, able means, to make it their interest to do us jus- whose general political system was peace, and tice, and be on good terms with us. This was not a hostile but a pacific and lawful policy.

He observed that when the bill was before the House on a former day, he had taken the liberty to express an opinion that the event of a treaty, intervening before another session of Congress, might be provided for by a separate section in this bill, or by a separate act, to be passed, if necessary, before the close of the present session. He had preferred the latter; but the reasons for that preference were not so strong as to induce him to dissent from the course which the Senate had thought proper to pursue.

He was generally not in favor of vesting discretionary powers in the Executive. But in the present case, where the principle was contained in the law, the discretion was so limited in its object and duration, and the rule for the exercise of that discretion was so obvious, he thought the authority could not be dangerous, and the objection was not applicable.

There was, he said, one strong consideration in favor of the section. If a treaty should be made, during the recess of Congress, or at so late a date as not to be known here until Congress should have adjourned, one of three courses must be

freedom of commerce with the whole civilized world. That law impaired this principle, by taking away that freedom of commerce so far as respected Great Britain. Now, the power we propose to give is nearly allied to that exercised on a change from a state of peace to a state of war. Although the Legislature should change the state of things from peace to war, yet the President would be authorized to agree to an armistice, which would, for a time, restore peace, and suspend the laws. In point of principle, therefore, the power at present proposed to be given was similar to that exercised in the case of an armistice. Further, in giving this power to the President, we do no more than what we have done already. The President has given us merely general information relative to our negotiations with Great Britain; and, on his responsibility, we have passed the act sent to the Senate. He recommends a suspension of the non-importation law to a reasonable time, without specifying it. We fix the time. Perhaps the President may consider this reasonable time of suspension as extending to December. The language of the amendment is, if he thinks so, let him suspend it to that time. The same principle, therefore, is