the treaty should be made. And. upon examining your Executive Journal, you will find that this construction was given to the Constitution by General WASHINGTON, who, having been the President of the Convention, must reasonably be supposed to have understood the true intent and meaning of the Constitution in all its parts. And, so far did he extend the construction for which I contend, that the Executive Journal will show, in order to ask the advice of the Senate, relative to a treaty he contemplated making, that, in the year 1790, he actually took his seat in the Presidential chair of this body, and asked the advice of the Senate upon sundry articles, which he proposed making the basis of the treaty. Thus it would seem, that the first President of the United States, in discharge of his duty, had given the foregoing construction to the Constitution. Some inconvenience having, however, been found to arise from this mode of asking the advice of the Senate, it has since fallen into disuse. But the latter practice cannot, nor ought not, be considered as condemning the construction of which I conceive the Constitution is fairly susceptible. Because the construction given by the first President so immediately after the adoption of the Federal Constitution must be considered as proceeding from the true sense and correct opinion which he then entertained of the respective rights of the treatymaking power. In support of this construction, Mr. President, I can also show, from your Executive Journals, so late as last session, that the Senate passed a resolution, requesting the President to make a treaty with the Creek nation of Indians. And although it may be said, that the Creeks not being a foreign nation, it is not an apposite case, I however conceive the principle to be precisely the same. For we have always treated the Indians as independent nations, and the same proceedings and formalities had uniformly been had in making the treaties, and ratifying them, as have been had, with other nations. So much, Mr. President, I have thought proper to say, in order to show, that if we pass this resolution, we do not offer any indelicacy to the President. But, on the contrary, will only exercise our Constitutional power, which the peculiar perilous situation of our country seems imperiously to demand. I should not have taken up so much time upon this point, had not the constitutionality of passing the resolution been also objected to by the other honorable member from Vermont, (Mr. BRADLEY.) SENATE. the property of the citizens of the United States, a violation of their neutral rights, and an encroachment upon their national independence. In order to show that the ground we have taken is correct, I will take leave to refer to a book (entitled An Examination of the British Doctrine which subjects to capture a neutral trade, not open in time of peace) ascribed to a gentleman high in office, who has deservedly acquired great celebrity in the political world. It will be found that the principle contended for in the resolution I have cited, obtained as early as the first rise of regular commerce, and was even reduced to system, as early as 1338. To this doctrine Great Britain acceded by treaty with Sweden, in 1655, and afterwards, in 1674, she actually claimed and enjoyed the benefit of a free trade, she being at that time in peace and the Dutch in war with France. With what kind of pretext can Great Britain pretend to deprive us of the exercise of the very rights which she herself has claimed and exercised, upon precisely the same principles? Besides, those neutral rights have, by constant and very long usage, become the established law of nations, and have from time to time been ingrafted into many treaties even where Great Britain was herself a party. Upon this doctrine, thus sustained, we request the President to demand and insist upon the restoration of the property of our citizens, captured and condemned on the pretext of its being employed in a trade with the enemies of Great Britain, prohibited in time of peace, and upon the indemnification of such American citizens for their losses and damages sustained by these captures and condemnations. It has been objected that the language of this resolution is too strong, that the words demand and insist go too far; and that the absolute restoration of our vessels, &c. will, by these words being retained, be made the sine qua non of an accommodation with Great Britain. If, sir, we were to express ourselves in less forcible language, we should, in my opinion, subvert our own principles, and recede from the high ground we have taken, which might eventually radically destroy our neutral rights, and completely paralyze our commerce. The words demand and insist are diplomatic, and as such most proper to be used, and the more so, as they seem to be appropriate to the principle of the first resolution. But, Mr. President, the latter part of this resolution, by which indemnification may be made, and new arrangements entered into with Great Britain, so far ameliorates In discussing the merits of the resolution now those precedent words that the President will posunder consideration, it will be necessary that we sess ample powers, according to a true exposition keep constantly in view the great principle of the of the whole taken together, and he will not, in one, which has already passed this House, by a my opinion, be trammelled in the manner the genunanimous vote, because this second resolution tleman from Ohio conceives. In settling national is predicated upon the principle of the first. In differences, it has ever been necessary, in some the first we declare, that the capture and con- points to give a little, and in others to take, accorddemnation, under the orders of the British Gov-ing to the peculiar circumstances, upon which the ernment, and adjudication of their Courts of Admiralty, of American vessels and their cargoes, on the pretext of their being employed in a trade with the enemies of Great Britain, prohibited in time of peace, is an unprovoked aggression upon 9th CON.-4 negotiation might happen to turn; either upon a point of national honor, or an interesting point of national commerce, or both so connected as not well to be severed. Upon the whole, Mr. President, I do believe it will be highly important that the Senate should, at this interesting moment, express their opinion upon our national concerns with Great Britain in such language, that the sense we entertain of our injuries cannot be mistaken. The principles and policy of our Government require that we should prefer negotiation in the first instance; and the adoption of the resolution, by a strong vote of this body, will doubtless add great weight to the object. If, however, we should unfortunately be driven to the dernier resort, I trust we shall never recede one point from the ground we have taken, as expressed in our first resolution. Mr. MITCHILL said he hoped the resolution would be adopted in its full extent. On this subject he differed wholly from the honorable gentleman from Vermont (Mr. ISRAEL SMITH.) As the proposition recommended to the Senate by the select committee was now before them in its most broad and extensive sense, he should apply his remarks to the principle, rather than to the form of the resolution under debate. Toward the end of of 1803, more than half the articles of the treaty between our Government and that of Great Britain had ceased. Since that event commercial intercourse had been carried on by the two nations, under their respective laws, without any convention or pact between them. Inconveniences had been experienced in various ways from that time to the present. An attempt indeed had been made two years ago to remove a considerable part of them by a repeal of the countervailing duties; but that effort not corresponding with the feelings of the nation, had been relinquished. FEBRUARY, 1806. relaxations were always acts of favor and grace to neutrals. Another of the extravagant consequences of this doctrine was, that the belligerent might inquire into the intention of the neutral, as to colonial produce exported from his own country under drawback, and if he could not prove to the satisfaction of the prize court, that such produce was originally imported into the neutral country for consumption there, without the design of sending it abroad once more, the ship and cargo should be condemned; thus declaring that two distinct commercial operations, were one and the same continued voyage. So it has been pretended and insisted by them that a vessel which has escaped their vigilance on a voyage from the neutral to the belligerent port, and has begun her return voyage loaded with the productions (not contraband) of the latter country in exchange for the cargo carried thither, may be captured and condemned, under an allegation that such outward cargo was the produce of an enemy's colony. By this means, the certificate of origin as to French produce, was made the evidence on which the condemnation was grounded in a British court. The catalogue of grievances, he said, was long and odious; but he would mention the oppressive manner in which the British exercised the right of search, the unjustifiable impressment of seamen wherever they pleased to take them, and their arbitrary proceedings relative to blockaded ports, as tending to wound the feelings of individuals, to excite national irritation, and to revive those sentiments of animosity and hatred which had been dying away ever since the Revolutionary war; and but for these renewed acts of hostility would have risen no more. The war which was rekindled in Europe soon after the expiration of the temporary articles of the treaty had embarrassed the commerce of the great maritime powers, and thrown into the hands of neutrals an extraordinary proportion of the colonial and carrying trade. The citizens of the United States, among others, had profited by the opportunity, and engaged extensively in this neutral commerce. But it had been the policy of Great Britain, the strongest maritime nation among the belligerents, to interrupt this intercourse of neutrals, with the colonies of her colonies, as if they had been her own colonies. A series of outrageous proceedings had been the result; such as had excited the most lively indignation against them from Maine to Georgia, and roused the na-other. It sprang from the former as a natural intion with one voice to resist and repel them. Mr. M. said he would enumerate a few of these injurious principles and acts. The great and fundamental regulation, which served as a groundwork for a principal part of the rest, was, that a commerce allowed to neutrals by belligerents, during and on account of the war, ought to be prohibited. The assumption of such a rule, in contradiction of all the practices, acknowledgments, and treaties, among civilized nations, was a dangerous innovation upon their public law. It was however followed by another declaration of theirs, equally unfounded in truth and reason, and this was, that, as the adherence to the principle was rightfully in them, they might relax from the observance of it when they pleased; and that such With all these difficulties in view, stated and reiterated from all the commercial cities of the nation, the proposition now under consideration had been reported. It was in the nature of an admonition to the President, to make a further effort to accommodate these differences in a just and amicable way. The resolve which passed the Senate unanimously yesterday, comprehended a total denial of the interpolated maxims, and the conduct which they authorized. The resolution now before the Senate was a corollary from the ference. The two were so intimately connected, that he considered the adoption of the former as a favorable prelude to the reception of this. And having declared that unprovoked aggressions had been made upon the persons and properties of our citizens, there was an evident propriety in endeavoring to negotiate on the subject, and settle the differences by fair discussion. But an objection had been made, that the Senate was about to proffer advice to the President of the United States. The resolution certainly was written for that purpose, and in this there was the strictest propriety. For, by the Constitution, this body is the council of that high Executive officer. In questions touching our foreign relations, the Senators are declared by the su FEBRUARY, 1806. British Aggressions. SENATE. preme law of the land to be the President's coun- ought to attach to it. The duty prescribed by the sellors. In urgent and arduous cases it was not resolution is of an Executive nature, and the only allowable for them to exercise this right, but President is charged with the care of those interit was their duty to do so. By such a measure ests for which the resolution provides. By prethere was no reflection on the Chief Magistrate; scribing a course of conduct to the Executive, we for it was well known he had vigilantly and cor- release that branch of Government from responsirectly done his duty. He had left nothing untried bility as to the event, and take it upon ourselves. that was in his power. Now, however, when But, sir, though I feel this objection, yet at the another effort was to be made, he believed the present moment it is outweighed by other conPresident, though firm in the performance of the siderations. The state of our public affairs is critiimportant trusts reposed in him, would be comfort-cal, and at such a time I think it becomes every ed and strengthened by the approving voice of his Constitutional advisers. With this resolution in his hand, he would speak to a foreign nation in a bolder tone, and employ the energetic language of his united fellow-citizens. Mr. M. did not think, with the gentleman who preceded him, that the adoption of the proposition would be productive of discord; but, on the contrary, would have a happy tendency to promote harmony, by a candid and patriotic communication of sentiments between these two important organs of the Government. Of the three resolutions reported by the select committee, the second, which was the one under consideration, was solely of an Executive nature. The two others, to wit: the first which had passed without a dissenting voice, and the third which remained to be acted upon, were of a Legislative complexion. Together, they constituted a series of measures adapted to the present exigencies of the nation. The first declared the wrongs done us; the second proposed to settle the dispute to which those wrongs gave rise, by equitable arrangement or treaty; and the third proposed, in case no settlement could be obtained upon just and honorable terms, to diminish our intercourse with a nation whose administration was so unjust and inflexible. There was another step which might have been the subject of a fourth resolution, and that was war. For his part, he believed the acts of the cruisers and courts of His Britannic Majesty were directly and openly hostile; and it was only necessary for us to consider them so, to make ourselves a party in the strife among the nations. Although the provocation was sufficient to justify us in a declaration of war, Mr. M. said he would at present prefer a different policy. He would in the first place make another overture of civility; and if that did not succeed, our connexion could be discontinued. If, after that, it should be necessary to put ourselves in hostile array, he knew there was courage enough in the nation to make an enemy, now as heretofore, tremble on approaching our shores. Viewing the subject in this manner, and conceiving the proposition as one of a catenation of measures on a subject of great national importance and uncommon public solicitude, he was earnest in his hope that it would be carried, like the preceding one, not by a mere majority, but by an unanimous vote. Mr. BAYARD.-Mr. President, if there be any objection to the resolution now before us, it is that it shelters the Executive Government from that responsibility as to its measures which properly branch and member of the Government to co-operate with cordiality and zeal in support of each other, and to strive to do more rather than less than their respective duty. The design of this resolution, sir, presents itself to my mind in a very different point of view from that in which it appears to the gentleman from Vermont (Mr. SMITH.) That honorable member is opposed to it because he thinks it gives just cause of offence to the President: That we prescribe to the President a duty which he ought certainly to perform without our injunction, and of consequence we betray doubts that he will do what belongs to his office without our interference. For my part, sir, I do not consider the resolution as intended in any degree for the President, but as designed for the British Government. I suppose without the resolution the President would take the course which it marks out. But we intend to manifest by it, that it is not simply the opinion of the President that specific redress should be granted for the wrongs we have suffered, but that it is the concurrent sense of this branch of the Government, that such redress should be insisted on. I do not mean that we should be considered as offering an empty menace to the British cabinet, but a demonstration of the union of different branches of our Government in demanding satisfaction for the wrongs done us. Foreign Governments calculate much on our divisions, our union will disappoint those calculations. It has been objected by the gentleman from Vermont, that it is improper to pass the resolution, because it is not the ground of any legislative proceeding. The gentleman is too late in making this objection. He has voted for the first resolution, which less than the present is the basis of a legislative act. At present it is designed only as the declaration of our opinion as to the conduct of a foreign nation. But I am not disposed to admit that these resolutions may not become the ground of a legislative act. It belongs to Congress to declare war, and when I give my assent to these resolutions, I consider myself as pledged to vote for war, if redress is not granted to us. In adopting the first resolution, we have gone too far to recede. We have declared that unprovoked aggressions have been committed on the property of our citizens-that our neutral rights have been violated and our national independence trenched upon. This unanimous declaration is recorded in your journals; and can we hesitate whether we will bear the wrongs and affronts put upon us, or hazard the peril of a war? SENATE. British Aggressions. FEBRUARY, 1806. Can we, sir, after the declaration which we have | ernor, Judges, and Secretary, of the Indiana Termade, sit quietly down and console ourselves with ritory;" in which they desire the concurrence of the meek virtue of suffering with forbearance? the Senate. For what purpose have gentlemen agreed to the first resolution? To show the world we knew the extent of our injuries, yet from indolence or dread we meant they should pass unredressed and unavenged? I hope, sir, it will not be thought that I wish for war, or would, without adequate cause, plunge the nation into it. I am contending only that we must learn to insist upon our national rights, or, by and by, none will belong to us. We must learn to defend our honor as a people, or soon we shall be without national character. We are best protected against war when it is known that we are ready to meet it. Let the nations of Europe know that a love of ease, a dread of disaster, or an apprehension of privations, chain you to a state of peace, and they will drain your treasury of its last cent, and make you drink the dregs of humiliation. I hope the Government will never go to war without a just and sufficient cause. But when that cause does exist, I hope they will not be appalled by the dangers or calamities of war. The resolution before us is not, however, a declaration of war. We have stated in the first resolution the wrongs we have suffered, we here state the redress we expect. I do not consider that the resolution enjoins on the President any particular mode of negotiation, or to demand any specific satisfaction. But it requires something substantial; direct, satisfaction, or equivalent indemnity, and some assurance of future security. I am in favor of the resolution because I think it will facilitate the negotiations of the President. When it is seen that we are united in insisting upon our rights, that rather than abandon them we are resolved to encounter any alternative, it must create an impression and serious reflection abroad. The resolutions justify the President in speaking in a manly tone to the British Government, in holding a language worthy of a great and free people, and I therefore give them my cordial support. On motion, the Senate now adjourned. FRIDAY, February 14. The bill, entitled "An act declaring the consent of Congress to an act of the State of Pennsylvania, entitled 'An act to empower the board of wardens for the port of Philadelphia to collect a certain duty on tonnage for the purposes therein mentioned," was read the second time, and referred to Messrs. MACLAY, MITCHILL, and LOGAN, to consider and report thereon. The bill to prevent the abuse of the privileges and immunities enjoyed by foreign Ministers within the United States was read the second time, and referred to Messrs. ADAMS, BALDWIN, SMITH, of Maryland, TRACY, and SMITH, of Vermont, to consider and report thereon. The bill last brought up for concurrence was read, and ordered to the second reading. BRITISH AGGRESSIONS. The Senate resumed the consideration of the report of the committee, made on the 5th instant, on that part of the Message of the President of the United State which relates to the violation of neutral rights, and the impressment of American seamen. The second resolution being still under consideration, as follows: "2. Resolved, That the President of the United States be requested to demand and insist upon the restoration of the property of their citizens, captured, and condemned, on the pretext of its being employed in a trade with the enemies of Great Britain, prohibited in time of peace: and upon the indemnification of sustained by those captures and condemnations and such American citizens, for their losses and damages to enter into such arrangements with the British Government, on this and all other differences subsisting between the two nations, (and particularly respecting the impressment of American seamen,) as may be consistent with the honor and interest of the United States, and manifest their earnest desire to obtain for themselves and their citizens, by amicable negotiation, that justice to which they are entitled." Mr. WORTHINGTON-On further consideration of the resolution now before the Senate I confess I feel more opposed to it, and do believe, on the whole, it will be best not to pass it in its present form. The resolution must mean something, or it must mean nothing. It must intend to convey to the President, the opinions and advice of this body, or not to convey it. Now, sir, if it is intended to convey to the President the opinion and advice of the Senate, which is certainly my understanding of it, I beg gentlemen to reflect a little before they adopt it. The advice of this Senate I trust will never be given to the President without having the desired effect; and let me add, sir, that from the intimate connexion which exists between this and the Executive branch of the Government I must believe that the President would not feel himself justified, nor would he be willing to take so much responsibility on himself as entirely to reject it. Sir I could not justify him if he did. We are equally responsible with him in our Exeeutive capacity, and can we for a moment believe that he would act contrary to the decided opinion of the Senate, who can at all times control or defeat him by rejecting a treaty made contrary to their advice and opinions? What, sir, is the object of the resolution? We request the President "to demand and insist upon the restoration of the property of their citizens, captured and condemned on the pretext of its being employed in a trade with the enemies of Great Britain, prohibited in time of peace; and upon the indemnification of such American citiA message from the House of Representatives zens, for their losses and damages sustained by informed the Senate that the House have passed these captures and condemnations:" and afterthe bill, entitled "An act for the relief of the Gov-wards "to enter into such arrangements with the British Government, on this and all other differences subsisting between the two nations, (and particularly respecting the impressment of American seamen,) as may be consistent with the honor and interests of the United States, and manifest their earnest desire to obtain for themselves and their citizens, by amicable negotiation, that justice to which they are entitled." SENATE. gotiation on the subjects which seem to be the particular objects of this resolution, viz: the condemnation of our vessels and the impressment of American seamen. It would therefore seem improper, on this ground, to pass the resolution in its present form. I know, sir, that what has been so often and so properly repeated is all-important on the present subject, that is, that we should be united in what we do. With this view and with the hope that the same committee can offer to the Senate a resolution varied in its form from the one before us, and embracing the wishes of at least a great majority, and I hope the whole Senate, I move that the resolution be recommitted. To my mind, sir, the resolution seems to be at war with itself. It is not, Mr. President, the bold ground taken by the first part of the resolution to which I object. It is not, sir, that I am opposed to demanding or insisting on our rights; but it is because I fear the resolution taken together will embarrass the Executive in negotiating a treaty to Mr. ADAIR.-Mr. President, the motion before settle our differences. A gentleman from Mary- the Senate is to recommit the resolution to a speland has told us, and we know the fact is so, that cial committee. Gentlemen in favor of the resothere are several subjects on which negotiation is lution as it stands, have called upon us to point necessary. At present we know we have no com- out the alterations we wish to make in it, as a mercial treaty with Great Britain. If. sir, this cause of commitment; I will do so by stating my subject is intended to be embraced, (and I so un- objections to it in its present shape. The first derstand it) by the resolution, and if it is the opinion resolution on the paper which I hold in my hand, of the Senate it should, let us be more explicit. and which met with a unanimous vote of the We have such a treaty with Holland, Spain, and Senate two days past, contains a mere declaration France, and I confess I see no good reason why of their opinion on an abstract principle; to this we should not have one with Great Britain if it resolution I fully and freely assent, although I did can be made on terms which will promote the not vote for it, being that day unwell and absent. mutual interests of the two nations. Indeed, I can- But this second resolution, if it is to have any effect not imagine how we are to get along without con- at all, is meant to convey an instruction to the Presitinual jarrings, and probably ultimate war, with dent of the United States. It contains a request all its concomitant evils, unless we know the ground to him, not only that he will endeavor to obtain on which we are placed. Whilst I should deplore an adjustment of our differences by treaty, but an event of this kind, yet if, under all the circum- that prior to this he will "demand and insist upon stances, the honor and interests of my country the restoration of the property of our citizens capmade it necessary, I hope I shall be found among tured and condemned on the pretence of its being those who would firmly resent the insult and vin- employed in a trade with the enemies of Great dicate the injuries of any nation on earth. With Britain, prohibited in time of peace; and upon the so wide a field for negotiation, with so many im-indemnification of such American citizens for their portant objects to accomplish, I submit it to the losses and damages sustained by these captures good sense of the Senate, whether it will be pro- and condemnations;" that he will enter into arper to tie up the hands of the Executive in the rangements, &c. This, Mr. President, is the part manner contemplated by the resolution. If the of the resolution I object to. It is going too far. resolution passes, the President must in every It is circumscribing the powers of the President, event "demand and insist upon the restoration of and tying him down to a particular point. It is the property of our citizens, captured and con- making that the sine qua non, the basis on which demned on the pretext of its being employed in a alone he is to treat; at least it is doing this so far trade with the enemies of Great Britain, prohibited as an opinion of the Senate, expressed in this way, in time of peace; and upon the indemnification can do it. It really looks to me, as if, on this parof such American citizens, for their losses and ticular point of the restitution, we were afraid to damages sustained by these captures and condem- trust our Chief Magistrate. I presume there is nations." This must be made the basis on which not a member who hears me, who does not fully all further proceedings are to be founded. I do believe the captures and condemnations alluded not wish to be understood as being willing to give to in the resolution were unjust; that they are an up the property which has been unjustly taken infringment of our rights; and that we are entifrom our citizens without an equivalent. Antled to restitution. But let it be remembered that equivalent may be obtained in many ways. If these condemnations are the solemn decisions of the resolution is adhered to by the Executive, a a court of very high authority in Great Britain; restitution of the property must be insisted on. a court that, it is well known, acts under the Request the President to demand and insist, and councils (if not the control) of the cabinet. May he must take this ground, and this only, if we pass we not then reasonably suppose that the British this resolution. Although in my opinion this res- Government are as fully assured (in their own olution was not intended to censure the Executive, minds) that these condemnations are just and yet, it would seem to bear that construction. But warranted, under the law of nations, as we are on this ground I will not object to it. It is noto- that they are unjust and unwarranted; and that rious to every gentleman of the Senate that the they will be as unwilling to acknowledge in the President has been, and is now prosecuting a ne- face of the whole world that they have been |