Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 2 (of 16)

by United States. Congress

Monday, February 25.

Mr. Gregg presented two petitions praying for a repeal of the alien and sedition laws; the one from Cumberland County, signed by 270 persons; the other from Mifflin County, in Pennsylvania, signed by 314 persons.

Mr. Gallatin presented another petition of the same kind from Chester County, signed by 692 persons.

Mr. Livingston, one of a similar nature, signed by 2,500 citizens of New York.

Mr. Heister, one of the same kind, from 1,400 inhabitants of Berks County.

Mr. Bayard, one from the inhabitants of Newcastle County, State of Delaware, signed by between 700 and 800 persons.

Mr. Bayard and Mr. Brown each of them presented petitions to the same effect, signed by a small number of persons.

The whole were referred as usual.

On motion of Mr. Livingston, the petition presented some days ago from a number of alien Irishmen against the alien bill, was also referred—44 to 35.

Alien and Sedition Laws.

On motion of Mr. Goodrich, the House went into a Committee of the Whole on the report of a select committee, on the petitions praying for a repeal of the alien and sedition laws; which was read by the Chairman, as follows:

The committee to whom was referred the memorials of sundry inhabitants of the counties of Suffolk and Queen, in the State of New York; of Essex County, in New Jersey; of the counties of Philadelphia, York, Northampton, Mifflin, Dauphin, Washington, and Cumberland, in Pennsylvania; and of the county of Amelia, in Virginia; complaining of the act, entitled "An act concerning aliens," and other late acts of Congress, submit the following report:

[The report was a condensation of the arguments used in support of the two bills by the members who supported them, and was accompanied by three resolutions, offered for the adoption of the House.]

Impressed with these sentiments, the committee beg leave to report the following resolutions:

Resolved, That it is inexpedient to repeal the act passed the last session, entitled "An act concerning aliens"

Resolved, That it is inexpedient to repeal the act passed the last session, entitled "An act in addition to the act, entitled 'An act for the punishment of certain crimes against the United States.'"

Resolved, That it is inexpedient to repeal any of the laws respecting the Navy, Military Establishment, or revenue of the United States.

The question being upon agreeing to the first resolution declaring it to be inexpedient to repeal the alien law,

Mr. Gallatin rose and spoke as follows:

Mr. Chairman: This subject was so fully discussed during the last session, that I would not have addressed the committee on this occasion, did I not entertain some hope that the change of circumstances which has taken place since the laws were enacted, and above all, the sense which so many of our fellow-citizens have expressed on their propriety and constitutionality, may induce the House to reconsider their decision of last year.

Petitions, signed by near 18,000 freemen of this State alone, collected in a few counties and within a few weeks, have been laid on your table, earnestly requesting Congress to repeal laws, at best of a doubtful nature, and passed under an impression of danger which does not now seem to exist, of general alarm, which has nearly subsided.

Sixteen hundred of my immediate constituents have joined in these petitions, and their opinion on this subject being the same which I have uniformly entertained, I feel it forcibly to be my duty to examine the reasoning used by the select committee who have reported against the repeal of the obnoxious laws.

The act concerning aliens comes first under consideration. Two laws were passed during the last session of Congress on that subject, the one concerning aliens generally, and the other respecting alien enemies. No petition has been presented against the last, and it would remain in force even if the first should, agreeably to the request of the petitioners, be repealed. The petitions apply solely to those provisions of the first act which are not included in the last. The provision, therefore, complained of, and which is the subject-matter of the reference to the committee, is that which authorizes the President to remove out of the territory of the United States, "all such aliens, (being natives, citizens, denizens, or subjects of a nation which is not at war with the United States, and which has not perpetrated, attempted, or threatened any invasion or predatory incursion against the territory of the United States,) as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the Government thereof."

This authorization is considered by the petitioners as unconstitutional—1st, because such power being neither among the specific powers granted by the constitution of the General Government, nor necessary to carry into effect any of those specific powers, is, both by incontestable deduction, and by the 12th amendment, reserved to the individual States; 2d, because, even supposing such power to be by implication comprehended among those granted to the General Government, its exercise is, for the present, expressly prohibited to that Government by the section which provides that the migration or importation of such persons as any of the States shall think proper to admit shall not be prohibited by Congress prior to the year 1808; and 3dly, because aliens are supposed to come under the general description of persons to whom, by the constitution, the right of a trial of all crimes by jury is secured.

In answer to the first objection, it is not contended that the power of removing such aliens is specifically granted by the constitution. But it is insisted, first, that every nation has a power at will to admit, or to remove aliens; second, that this power is necessary and proper in order to carry into effect the specific powers vested in Congress to declare war and to protect each State from invasion.

To admit the first position in its full extent does not destroy the force of the objection; for that objection rests not on a supposition that the power of removing aliens does not exist in the nation; but on the principle that it is not one of those granted by the nation to the General Government; that it is one of those intrusted by the nation to the Governments of the individual States respectively. The second position is predicated on a construction of the clause of the constitution and an application of that construction to the act, which to me appear inadmissible. The expressions used in that clause are "necessary and proper." The idea conveyed by the word "proper" is implied in that of the word "necessary," for whatever is necessary must be proper. The addition of the word "proper" was therefore useless, unless designed more precisely to ascertain the meaning of the word "necessary," the better to prevent a construction "that by necessity nothing more was meant than propriety," and to establish, beyond contradiction, that whatever might by Congress be thought proper, was not on that account to be judged necessary. Hence the meaning of the word "necessary" is confined in that clause to its strict sense, to wit: the power of passing laws without which some of the powers delegated to Congress could not be carried into effect.

In the present case it cannot be said that a power generally to remove aliens, not belonging to a nation from which a war or invasion is apprehended, is necessary or even proper in order to protect the States against such a war or invasion. Aliens individually may commit acts tending to assist the enemy, and, in such case, it would become necessary to punish them. Should a body of armed aliens (the supposed case of the select committee) land with views evidently hostile, to whatever nation they might belong, the act itself would be an invasion, and the necessity of repelling, or if another expression is selected, of removing them, would be self-evident and immediately flowing from the specific power delegated to Congress to protect the States against invasions. But it is preposterous to say that the necessity of a general removal of alien friends flows from the apprehension of an invasion. The law concerning aliens, however, does not designate the acts which shall establish the necessity of their removal individually. Although they may not have been concerned in any machinations against Government; although the machinations in which they may have been concerned shall not have tended to promote or assist an invasion; and although their machinations might be sufficiently prevented and punished in the common course of law; although, therefore, their removal may not be necessary to protect the States against an invasion; yet, by the present law, they are liable to be removed, if they shall be suspected of being concerned in those machinations. Their having actually and individually committed certain acts is requisite to constitute that necessity which alone can justify the exercise of the power delegated by this law. And yet that removal, which, in order to be constitutional, should rest on its necessity, depends, by the provisions of this law, on the bare suspicion of a necessity. But necessity implies proof, and cannot rest on suspicion. The law cannot be supported by the constitution unless that instrument had declared that Congress shall have power to pass laws which they may suspect to be proper or necessary in order to carry into effect certain specific powers delegated to them.

But the law does not even confine its operation to cases when a war or invasion should be apprehended. Supposing the alarms on that subject to be completely at an end, still the power remains with the President to remove aliens suspected by him to be concerned in secret machinations against Government. The power delegated by this law is not applicable exclusively to cases where it may be thought necessary in order to carry into effect the power to protect States against an invasion. It is to apply generally and under color of its necessity for executing certain specific powers, it may be exercised in a case where that specific power, on which alone it rests, has itself, nothing on which to operate. Although it may happen that there shall be no necessity to protect States against invasion, it will even then, according to this constructive doctrine, still be lawful to do an act which cannot be constitutional, except on account of its being necessary to protect States against invasion.

In order, therefore, to support the constitutionality of the law, the select committee must suppose, in the first place, that Congress may pass laws, without a certainty of their being necessary for carrying into execution some of the specific powers granted to them; that is to say, that Congress have a right to pass laws which may be unnecessary for that purpose. In the next place, that if a certain law is necessary only for executing a constitutional measure of a temporary nature, that law may constitutionally be executed, although the temporary measure itself should not be executed at all; that is to say, that the incidental power may be exercised for a purpose different than that of executing the original power on which it rests.

The application of that constructive doctrine to the sedition and alien laws justifies a conclusion that, if adopted, it will substitute in that clause of the constitution a supposed usefulness or propriety to the necessity expressed and contemplated by the instrument, and will, in fact, destroy every limitation of the powers of Congress. It will follow that instead of being bound by any positive rule laid down by their charter, the discretion of Congress, a discretion to be governed by suspicions, alarms, popular clamor, private ambition, and by the views of fluctuating factions, will justify any measure they may please to adopt; that, instead of being bound by a constitution, they may claim the omnipotence of a British Parliament; that all the reserved powers of the people or of the States will be swallowed up at their pleasure by that undefined discretion; in a word, that the constitution itself, so far as respects a limitation of powers, is by that doctrine completely annihilated. Even the positive checks, which, in a few instances, prohibit the exercise of certain powers, will not prove a sufficient guard against an inordinate appetite to legislate on some favorite subject.

Thus, in the case of the sedition law, the prohibitory clause, respecting an abridgment of the liberty of the press, is attempted to be construed away by star-chamber definitions, by exotic doctrines, which, if suffered to flourish, will overshadow and smother every plant of American growth; doctrines incompatible with the principles of a Government elective in all its Executive and Legislative branches; of a Government which the people, the sole fountain of power, cannot properly carry into execution, if the sources of information are shut up from them; if a free and full discussion of every public measure is at the will of those who enjoy only a delegated authority, checked and embarrassed by prosecutions for libels, grounded solely on the British system of hereditary prerogative.

And thus, in the case of the alien law, it is said that the temporary prohibition enjoined on Congress, to forbid the importation of persons, must be understood as applying only to slaves; and that a power to remove emigrants may be constitutionally exercised, though that of prohibiting their migration should be unconstitutional.

The evidence of members of the Convention which framed the constitution, has sometimes been offered to prove that that body by persons, meant slaves. But the evidence of those members cannot prove any thing beyond their own individual intention, or, at most, their belief of what might have been the intention of some other members. Nor is, on any possible supposition, the intention of the Convention itself of any importance to decide the true meaning of the constitution. For they were not the legislators who passed and ratified the act, but only the framers who drew the instrument and offered it for consideration. As well might the Judges of the Supreme Court be induced in their decision on a point of law, to abandon the clear construction pointed out by the precise meaning of the words of the statute, on account of the supposed opinion of some one of the members of the committee of this House that had drafted the law, as we be guided by what was, at the time, the meaning of some of the gentlemen who drew the constitution. After a lapse of ten years, it is preposterous to receive parole evidence against a sacred record. Are the people of America to be told, after a lapse of ten years, that the delegation of powers, which they sanctioned under the impression of what on its face appeared to be its meaning, is to receive a contrary construction, bottomed on private meaning, on the unknown opinion of the members of a body whose deliberations were secret? And if, even through mistake, those individuals adopted expressions which conveyed a different meaning from what they intended, is that supposed intention to prevail over the explicit sense of those expressions?

But we are told by the select committee, that "there could not have been the least reason" for confining the restriction to the then existing States, and to a period of twenty years, had the restriction "been intended" to apply to all emigrants in general. Here again, a supposed intention is brought as an argument against the general acceptation of the word "persons." The question is not, whether we are at a loss to find the reasons which dictated a modification of the restriction. Yet, if we were to recur to suppositions, we might as well suppose that the then existing States, which alone formed the constitution, felt interested only for themselves, and not for future non-existing States; and that those States, who were interested in promoting the migration of free persons, were satisfied with the same regulation which satisfied those States who were apprehensive of an interference in the importation of slaves. But the only question is, whether modification is contradictory with the common acceptation of the word "persons," which, it will not be denied, in its natural sense, will apply to free as well as to the other description of individuals? Whether there is any thing absurd or repugnant to common sense, in saying that Congress shall not, for twenty years, prohibit the migration of free persons in the existing States? If there be nothing inconsistent in that provision, the modification of the restriction cannot modify and alter the meaning of the word "persons."

Was there any possibility of doubt on the sense of that word, it might be explained by other parts of the constitution and by other expressions in the clause itself.

The 2d section of the 1st article of the constitution, speaking of the mode of ascertaining the respective numbers of the several States, declares that they shall be determined by adding to "the whole number of free persons" (including those bound to service for a term of years, and excluding Indians not taxed) "three-fifths of all other persons." A sentence in which the word persons is expressly applied first to freemen, and secondly to slaves.

The prohibitory clause itself declares that the migration or importation of such persons as any of the States, &c., shall not be prohibited. The word "migration," as contradistinguished from "importation," clearly implies the free will of the person, and applies exclusively to free persons.

The select committee have also informed us that the power to send off emigrants, who abuse the indulgence granted them to remain, is a very different thing from the power of preventing emigration; meaning, I suppose, that although Congress might be forbidden by the constitution to prohibit migration, they may constitutionally send off such emigrants. Was the power claimed by this law, that of punishing by transportation aliens convicted of certain offences, defined by the law, although the constitutional necessity of the mode of punishment would still remain to be proven, yet the argument of the committee would deserve some consideration. But it is denied that there is the least difference between a power of prohibiting emigration and that of sending off any alien at the will of the President, merely because he is suspected by that Magistrate. The transportation of the emigrant does not rest on any act committed by him, but on the degree of suspicion entertained by the President. The removal, therefore, contemplated by the law, is not the special removal of certain emigrants, but a general power to remove all the emigrants, on suspicion, if the President shall please. I must confess that, to my understanding, that power to remove all emigrants would, if exercised, (and the law authorizes its general exercise,) amount precisely to the same thing with a general prohibition of emigration.

So far is it true that the clause of the constitution admits of a construction which would defeat its object; that, at the end of it, we find a provision permitting Congress to lay a duty of ten dollars, not on migration, but on the importation of persons. Had it not been for that provision, Congress could not even have checked that importation by any duty. As the clause now stands, they cannot check the migration by any duty whatever, nor the importation by a duty higher than ten dollars. And yet it is contended that notwithstanding so much caution, Congress may, by a general power of sending off emigrants, evade the restriction laid upon them, and altogether prevent the effect of migration.

Finally, if there be any difference between the power of prohibiting migration and that of sending off emigrants, it consists in this, that it might have been apprehended that, under color of the general power over commerce given to Congress, they might, by duties or other commercial regulations, have prevented or checked migration; but that there does not exist any power granted to the General Government by the constitution which can rationally serve as a pretence to claim an authority to remove emigrants generally. And the only deduction to be thence inferred is, that the clause now under consideration, although it might be proper for preventing the exercise of the first power, was unnecessary for the last purpose—a conclusion to which I agree in its full extent, and which it seems to me I have already fully established in the first part of my arguments.

The select committee (driven thereto, perhaps, by the weakness of the ground they were compelled to defend) have recurred to a last argument, the most extraordinary, perhaps, of any they have advanced. Having said, in the former part of their report, that every nation had a right to send off aliens at will, they afterwards assert that, "as the constitution has given to the States no power to remove aliens," it is necessary to conclude that the power devolves to the General Government.

It is, I believe, the first time it has been suggested that the powers of the individual States were derived from the Constitution of the United States. That constitution has heretofore been considered as a delegation of powers to the General Government, and not to the several States. But the assertion of the committee may be shortly answered by reading the twelfth amendment to the constitution, viz: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." In order to prove that the powers are not reserved to the States, it is necessary to prove that they are delegated to Congress; and the committee, with that kind of logic which pervades the whole of their report, in order to prove that powers are delegated to Congress, assume the position that they do not belong to the States. The constitution declares that the powers not prohibited to the States are reserved to them, and the committee asserts that the powers not given to the States, are not reserved to them. It would seem, as the committee had been desirous of justifying, by their own arguments, what I have advanced, that the doctrine necessary to support the constitutionality of this law would infallibly swallow up all the powers of the several States.

That the States had a right to legislate on this subject never was denied. It is a fact, that some of them have legislated upon it. Virginia has passed an alien law, which has been quoted by the supporters of the law of Congress. It was strange enough, that on a constitutional question, whether the United States or the several States had a right to pass such laws, the advocates for the right of Congress should quote a law of one of the States, which proved the very reverse of their doctrine. But their object was to puzzle and confound, and not to enlighten the understanding; and if they meant to rescue the law of Congress from the charge of impropriety and injustice, by the instance of that of Virginia, they have been guilty of a gross misrepresentation; for the act of that State, so far from being similar to that complained of, is not a law concerning alien friends, but a law respecting alien enemies, perfectly similar to that of Congress, of which no one complains, and which passed without opposition.

To the argument against the law, drawn from that part of the constitution which secures the trial of all crimes by jury, the most satisfactory answer given by the committee is, that aliens not being parties to the constitution, have no rights under it. Without entering into an examination of the constitutional question arising on that point, I will only remark, that the construction is harsh; and that, to transport emigrants, "merely from motives of policy," and "without their having committed any offence," is often unjust—always oppressive and cruel. The manner in which aliens have been invited to this country, and the peculiar situation in which they stand, justify the assertion.

The constitution gives to Congress no power over aliens, except that of naturalization. The power, therefore, remains with the States to give to aliens the rights of denizens. That power has not been exercised by that name; but it has, in fact, been carried into effect. Not only in some States have aliens been enabled to purchase, to hold, to inherit, and to leave by will, real estate—a right which principally constitutes a denizen—but many have actually been admitted in some States, either by special acts of the Legislature, or in conformity to former general laws, to all the rights of citizens of those States, so far as it was in the power of individual States to do it; that is to say, that they have received every right, but such as arise from naturalization—every right of denizens. On the other hand, the laws of the Union have invited emigration, by holding out the prospect of being naturalized at the end of a period which, till nearly the time when the alien law passed, never exceeded five years. Under these laws, emigrants have, by a formal declaration before our courts, given evidence of their intention of becoming citizens and of renouncing their former allegiance—a declaration almost tantamount to an actual renunciation. They have abandoned their native countries for ever; many of them have acquired lands, and married in America; most of them have here the whole of their property, or their only means of subsistence. Under all these circumstances, it may be doubtful whether a great proportion of these aliens are not entitled to the rights of denizens; and if they are not so, by a strict construction of positive laws, at least, it can hardly be denied that the provisions of the law violate, in this respect, the dictates of humanity and justice.

The policy of this measure seems to be defended by the select committee on the same ground which is to be a pretence and a justification for every act of domestic oppression, for every encroachment of power, for every new tax, for every extravagant loan, for every prodigal act of expenditure, for every increase of the navy, for every standing army which may be raised under the various names of permanent army, additional army, provisional army, eventual army, or well-affected volunteers. The alien and sedition acts form, in the opinion of the committee, an essential part of our general system of defence against France. I do not mean to follow them, whilst they use, instead of arguments, the mere cant of the day. They cannot be serious when they tell us of the employment of the active talents of a numerous body of French citizens here as emissaries and spies. And if they are, does that committee mean to impose upon this House, as upon the people of some parts of the Union? Do we not know that, if there be any danger from France, the act respecting alien enemies is applicable to her citizens, and that the law now complained of respects alien friends, and was originally intended to operate, not against subjects of France, but against Irish emigrants and other subjects of Great Britain? Do we not know that, notwithstanding all the clamor of last summer, and notwithstanding the two laws passed on that subject, not a single French citizen has been removed?

Still less can I suppose that the committee were in earnest when they pretended to believe that the United States offered as easy and alluring a conquest to France as Egypt. They seem to have forgotten that Egypt was governed and defended by Mamelukes and inhabited by slaves; that the United States are as yet inhabited and defended by the people themselves. But if the committee thought that the fear of an invasion did justify those laws, when passed, will they pretend to say that the danger, even in their opinion, now exists, and that the same necessity now justifies the continuance of the laws?

It is not only against invasion that those laws are said to be necessary. We are told of a system which convulses the civilized world, and has shaken the fabric of society; of an unprecedented combination to establish new principles of social action, on the subversion of religion, morality, law, and Government. If these are the dangers which threaten us, and if Congress think themselves vested with all the powers which they may think expedient to repel them, I wish to know to what extent they may not legislate, and by what possible limitation they can be restrained, in their assumption of powers? There is not an individual on this floor, there is not a man of common understanding and common information in the nation, who, unless he is under the influence of the illusions of the new anti-republican fanaticism, or blinded by party spirit, does not know that these pretended dangers are, in America, the visionary phantoms of a disordered imagination. And I have taken notice of those sentiments merely to give an additional proof, that under pretence of preventing imaginary evils, an attempt is made to establish the omnipotence of Congress, and substantial despotism, on the ruins of our constitution.

Is that a measure of security and general defence which puts a numerous body of aliens—aliens who are represented as so desperate and dangerous—under the absolute control of one man, which, by holding the rod of terror over their heads, and leaving their fate at his sole disposal, renders them complete slaves of the President, and makes them proper instruments for the execution of every project which ambition may suggest, which faction may dictate? Is that a Government of laws which leaves us no security but in the confidence we have in the moderation and patriotism of one man? And do the abettors of these laws forget that even that is precarious, and that the unlimited power which they think safely lodged in one individual may in a day be vested in another man in whom they do not place the same confidence?

Is that a measure of general defence which has diminished confidence in the Government and produced disunion among the States and among the people?

Yet I am happy to find that even this law has produced such general dissatisfaction. I was the more alarmed on account of this law, because, attacking only aliens, for whom no immediate concern could be felt, it might the more easily become the vehicle to introduce doctrines and innovations which would hereafter serve as a precedent to attack the liberties of the citizens themselves. A pretence of general defence may justify oppressive measures against citizens as well as against aliens. Although some nice distinctions may now be made in order to discriminate one class from the other, yet it must be remembered that the only security of citizens against unconstitutional measures consists in a strict adherence to the constitution; that their liberties are only protected by a parchment—by words—and that they may be destroyed whenever it shall be admitted that the strict and common sense of words may be construed away under the plea of some supposed necessity; whenever the constitution shall be understood and exercised as an instrument unlimited where it grants power, and nugatory where it limits power.

We may feel alarmed when we see a committee of this House asserting that the powers not given to the States (and it may be added, by the same rule of construction, the powers not given to the people by the constitution) belong to the General Government. We may feel alarmed when that committee insist that, although it is true that the trial of all crimes must be by jury, yet, to inflict a punishment when no offence—no crime—has been committed, is not a violation of the constitution; when the only distinction they apply to citizens consists in the difference of punishment, but not in a difference of the principle. We may feel alarmed when we find that Congress have already acted on those principles towards citizens; that they have already passed another law—the sedition law—grounded on the same principles, on the same doctrine, or rather on the same abandonment of the explicit and evident sense of the constitution, which alone could justify the alien law. I hope—I trust—that the spirit which dictated both laws has subsided, even within these walls, and that the same Congress who, under the impressions of a momentary alarm, which prevented a cool investigation, hastily adopted those two measures, will have courage enough to revise their own conduct, to acknowledge their own errors, and, by a repeal of the obnoxious acts, restore general confidence, union, and harmony, amongst the States and the people.

When Mr. Gallatin had concluded, the question was taken and carried—yeas 52, nays 48.

The 2d resolution being next in order, viz:

Resolved, That it is inexpedient to repeal the act passed the last session, entitled "An act in addition to the act, entitled An act for the punishment of certain crimes against the United States:"

Mr. Nicholas rose and spoke as follows:

Mr. Chairman—I am sorry to be obliged to rise at this late hour of the day, indisposed also as I find myself, to speak on this important question; but, since gentlemen are determined now to decide upon it, I must be indulged in making some observations upon it, previous to the question being taken.

The select committee had very truly stated, that only the second and third sections of the act, in addition to the act for the punishment of certain crimes against the United States, are complained of—that the part of the law which punishes seditious acts is acquiesced in, and that the part that goes to restrain what are called seditious writings, is alone the object of the petitions.

This part of the law is complained of as being unwarranted by the constitution, and destructive of the first principles of Republican Government. It is always justifiable, in examining the principle of a law, to inquire what other laws can be passed with equal reason, and to impute to it all the mischiefs for which it may be used as a precedent. In this case, little inquiry is left for us to make, the arguments in favor of the law carrying us immediately, and by inevitable consequence, to absolute power over the press. The case chosen for our first legislation, that of "false, scandalous, and malicious writings," is specious, and as likely as any can be to establish an interest in its favor; but when it is fairly examined, it will be found to operate on cases, which could not, at first view, be expected to come under it; to be the instrument of most unjust oppression, and to restrain that free communication of honest opinion which is the soul of the Government. But when you come to inquire further, and learn, from the advocates of the law, the authority which they claim for passing it, you will find that the power claimed does not stop even with this law, mischievous as it may be, but that it extends to absolute and unlimited control.

It is not pretended that the constitution has given any express authority which they claim for passing this law, and it is claimed only as implied in that clause of the constitution which says, "Congress shall have power 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 Government of the United States, or in any department or office thereof." It is, therefore, necessary to fix a just construction of this clause.

That the powers of the Federal Government were intended to be limited, is universally admitted, in the abstract; is proved by every clause of the constitution, and is positively declared by the 12th amendment in these words: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The just construction of the constitution, if the clause respecting necessary and proper powers had been omitted, would have been the same that it ought to be with the addition; for there can be no doubt, that a grant of specified powers would have contained a grant of such power as is necessary to carry the specified power into effect, and therefore the declaration ought to make no difference, according to a well-known maxim. This was the understanding of all the friends of the constitution at its adoption, and the constitution ought now to be construed as if the clause had been omitted. But it is proper to examine the meaning of it, as expressed.

It is clear, that this clause was intended to be merely an auxiliary to the powers specially enumerated in the constitution; and it must, therefore, be so construed as to aid them, and at the same time to leave the boundaries between the General Government and the State Governments untouched. The argument by which the select committee have endeavored to establish the authority of Congress over the press, is the following: "Congress have power to punish seditious combinations to resist the laws, and therefore Congress must have the power to punish false, scandalous and malicious writings; because such writings render the Administration odious and contemptible among the people, and, by doing so, have a tendency to produce opposition to the laws."

It is expressly admitted by the committee, that the power to punish seditious combinations to resist the laws, is only derived, by construction, from the clause giving all necessary and proper powers before recited; and that there is no express power in the constitution to that effect. There is no dispute about this construction being just; but I contend that the inference from this implied power cannot be supported, viz: That Congress have a power to punish seditious writings.

The constitution says: "Congress shall have power over all acts which hinder the execution," &c.; but, to make it support the construction of the committee, it should say that, "Congress shall have power over all acts which are likely to produce acts which hinder the execution," &c. Our construction confines the power of Congress to such acts as immediately interfere with the execution of the enumerated powers of Congress; because the power can only be necessary as well as proper, when the acts really would hinder the execution. The construction of the committee extends the power of Congress to all acts which have a relation, ever so many degrees removed, to the enumerated powers, or rather to the acts which would hinder their execution. By our construction, the constitution remains defined and limited, according to the plain intent and meaning of the framers; by the construction of the committee, all limitation is lost, and it may be extended over the different actions of life as speculative politicians may think fit.

The suggestion on which the authority over the press is founded, is, that seditious writings have a tendency to produce opposition to Government. What has a greater tendency to fit men for insurrection and resistance to Government, than dissolute, immoral habits, at once destroying love of order, and dissipating the fortune which gives an interest in society?

The doctrine that Congress can punish any act which has a tendency to hinder the execution of the laws, as well as acts which do hinder it, will, therefore, clearly entitle them to assume a general guardianship over the morals of the people of the United States.

Again: nothing can have a greater tendency to ensure obedience to law, and nothing can be more likely to check every propensity to resistance to Government, than virtuous and wise education; therefore Congress must have power to subject all the youth of the United States to a certain system of education. It would be very easy to connect every sort of authority used by any government with the well-being of the General Government, and with as much reason as the committee had for their opinion to assign the power to Congress, although the consequence must be the prostration of the State Governments.

But enough has been said to show the necessity of adhering to the common meaning of the word "necessary," in the clause under consideration, which is, that the power to be assumed must be one without which some one of the enumerated powers cannot exist or be maintained. It cannot escape notice, however, that the doctrine contended for, that the Administration must be protected against writings which are likely to bring it into contempt, as tending to opposition, will apply with more force to truth than falsehood. It cannot be denied that the discovery of maladministration will bring more lasting discredit on the government of a country, than the same charges would if untrue.

This is not an alarm founded merely on construction; for the governments which have exercised control over the press, have carried it the whole length. This is notoriously the law of England, from whence this system has been drawn; for there, truth and falsehood are alike subject to punishment, if the publication brings contempt on the officers of government.

I have shown, as I promised, that the authority on which this act is supported, gives unlimited power over the press, as to its investigation of public affairs, which is its most important function; and I will now endeavor to show, that the effect of the present law is very little short of the complete restraint of all useful discussion on public men and measures.

The law has been current by the fair pretence of punishing nothing but falsehood, and by holding out to the accused the liberty of proving the truth of the writing; but, it was from the first apprehended, and it seems now to have been adjudged, (the doctrine has certainly been asserted on this floor,) that matters of opinion, arising on notorious facts, come under the law. If this is the case, where is the advantage of the law requiring that the writing should be false, before a man shall be liable to punishment, or of his having the liberty of proving the truth of his writing? Of the truth of facts there is an almost certain test; the belief of honest men is certain enough to entitle it to great confidence; but their opinions have no certainty at all. The trial of the truth of opinions, in the best state of society, would be altogether precarious; and, perhaps, a jury of twelve men could never be found to agree in any one opinion. At the present moment, when, unfortunately, opinion is almost entirely governed by prejudice and passion, it may be more decided, but nobody will say it is more respectable; chance must determine whether political opinions are true or false, and it will not unfrequently happen, that a man will be punished for publishing opinions which are sincerely his, and which are of a nature to be extremely interesting to the public, merely because accident, or design, has collected a jury of different sentiments.

If the effect of the present law is to restrain the free communication of opinion, and its principle will justify any control Government chooses to exercise over the press, an inquiry may safely be entered on, whether Congress ought to possess the power, even if the clause giving necessary and proper power would extend to such remote cases? It is the more necessary to inquire into the usefulness of this power in the hands of Congress, since the opinion is becoming current, that that alone will give Congress a right to assume it, upon the principle that Government must have a right to do every thing proper for its safety. This doctrine may be very fallacious, if not taken in the restricted sense to be found in the clause giving necessary powers. No government can assume a power not delegated, on pretence of its being necessary; for none have a right to judge of what is necessary but the makers of the constitution, otherwise all governments would be competent to make every alteration in a constitution they might think proper, and the constitution would rank with the laws, and not above them. For the execution of powers expressly given, there must have been some latitude allowed to those who were to execute them, the same in fact which is expressed in the clause respecting necessary powers.

Is the power claimed proper for Congress to possess? It is believed not, and will readily be admitted, if it can be proved, as I think it can, that the persons who administer the Government have an interest in the power to be confided, opposed to that of the community. It must be agreed that the nature of our Government makes a diffusion of knowledge of public affairs necessary and proper, and that the people have no mode of obtaining it but through the press. The necessity for their having this information, results from its being their duty to elect all the parts of the Government, and, in this way, to sit in judgment over the conduct of those who have been heretofore employed. The most important and necessary information for the people to receive is, of the misconduct of the Government; because their good deeds, although they will produce affection and gratitude to public officers, will only confirm the existing confidence, and will, therefore, make no change in the conduct of the people. The question, then, whether the Government ought to have control over the persons who alone can give information throughout a country, is nothing more than this, whether men interested in suppressing information necessary for the people to have, ought to be intrusted with the power, or whether they ought to have a power which their personal interest leads to the abuse of? I am sure no candid man will hesitate about the answer; and it may also safely be left with ingenuous men to say whether the misconduct which we sometimes see in the press, had not better be borne with, than to run the risk of confiding the power of correction to men who will be constantly urged by their own feelings to destroy its usefulness.

The mode of thinking which countenances this law, and the doctrines on which it is built, are derived from a country whose government is so different from ours, that the situation of public officers ought to be very different. In Great Britain, the King is hereditary, and, according to the theory of their government, can do no wrong. Public officers are his representatives, and derive some portion of his inviolability from theory, but more from the practice of the government, which has, for the most part, been very arbitrary. It was, therefore, of course, that they should receive a different sort of respect from that which is proper in our Government, where the officers of government are the servants of the people, are amenable to them, and liable to be turned out of office at periodical elections. In Great Britain, writings are seditious, though they are true, if they tend to bring a public officer into contempt.

In this country, it is seen that the same principle is contended for, and that in practice, with respect to matters of opinion, we have gone the whole length of the principle. How long can we expect to maintain the other distinctive qualities of the magistracy of the two countries, when this sameness is established? How long can it be desirable to have periodical elections, for the purpose of judging of the conduct of our rulers, when the channels of information may be choked at their will?

But, sir, I have ever believed this question as settled by an amendment to the constitution, proposed with others, for declaring and restricting its powers, as the preamble declares, at the request of several of the States, made at the adoption of the constitution, in order to prevent their misconstruction and abuse. This amendment is in the following words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances." There can be no doubt about the effect of this amendment, unless the "freedom of the press" means something very different from what it seems; or unless there was some actual restraint upon it, under the Constitution of the United States, at the time of the adoption of this amendment, commensurate with that imposed by this law. Both are asserted, viz: that the "freedom of the press" has a defined, limited meaning, and that the restraints of the common law were in force under the United States, and are greater than those of the act of Congress; and that, therefore, either way the "freedom of the press" is not abridged.

It is asserted by the select committee, and by every body who has gone before them in this discussion, that the "freedom of the press," according to the universally received acceptation of the expression, means only an exemption from all previous restraints on publication, but not to an exemption from any punishment Government pleases to inflict for what is published. This definition does not at all distinguish between publications of different sorts, but leaves all to the regulation of the law, only forbidding Government to interfere until the publication is really made. The definition, if true, so reduces the effect of the amendment, that the power of Congress is left unlimited over the productions of the press, and they are merely deprived of one mode of restraint.

The amendment was certainly intended to produce some limitation to legislative discretion, and it must be construed so as to produce such an effect, if it is possible. This is required in the construction of all solemn acts, but must be more particularly due to this on account of the various examinations it underwent, previous to its adoption. It was first recommended by the conventions of several States, was adopted by two-thirds of both Houses of Congress, and finally ratified by three-fourths of the State Legislatures. To give it such a construction as will bring it to a mere nullity, would violate the strongest injunctions of common sense and decorum; and yet that appears to me to be the effect of the construction adopted by the committee. If subsequent punishments are sufficient to deter printers from publishing any thing which is prohibited, there is no stint to the power of Congress; and yet, it appears to me that a limitation was clearly intended. I cannot doubt the power of Government to bend printers to their will by subsequent punishments, when all other offences are restrained only in this way. Government does not punish men for keeping instruments with which they can commit murder, but contents itself with punishing murder when committed. The effect of the amendment, says the committee, is to prevent Government taking the press from its owner; but how is their power lessened by this, when they may take the printer from his press and imprison him for any length of time, for publishing what they choose to prohibit, although it may be ever so proper for public information? The result is, that Government may forbid any species of writing, true as well as false, to be published; may inflict the heaviest punishments they can devise for disobedience; and yet we are very gravely assured that this is "the freedom of the press."

But it is worth while to trace this definition to the place from whence it is taken, and inquire into the circumstances in which it is used. Blackstone, in his Commentaries on the Laws of England, after stating the law respecting libels, which is, that every thing which brings a magistrate into contempt is punishable, whether true or false, goes on to say, that this law is not inconsistent with the liberty of the press; and then gives a definition of the liberty of the press in the manner it is used by the committee. The meaning of all Blackstone has said is this, that the press has the proper degree of liberty in England, and that libels, whether true or false, ought to be punished there. Let us apply what he has called a definition, in the way he used it, to the legislation of the United States. Suppose the present question was, whether we should punish truth, as well as falsehood, in libels, would gentlemen venture to tell us that it was consistent with the freedom of the press, or that the degree of freedom proper for the United States would remain? I venture to say they would not. Ought they, then, to support the doctrine which hereafter may be practised on to the full extent? Is there not reason to believe gentlemen hope to conceal the full extent of their principles, by bringing them into operation only by degrees? But, sir, it is a manifest abuse of Blackstone's authority to apply it as it has been here applied. He had advanced into the fourth volume of a panegyric on the laws of England, and after stating the law on this subject, makes a theory to justify the actual state of the law. It must be remarked, in his justification, that the nature of their government justifies more rigor than is consistent with ours, and that the existing law, of which he was writing the praise, had been greatly softened in practice, by public opinion. In this case, there was no danger of impairing the security to liberty, intended by the constitution; for England has no constitution but what may be altered by the Parliament, and therefore no great precision was necessary with respect to general principles. Indeed, his observations on this subject ought to be called a theory, and a theory adapted merely to his own country, and not a definition. Very different are the circumstances in which his doctrine has been applied here. A restrictive clause of the Constitution of the United States, by its application, is made to mean nothing, and when it is clearly the intention of the constitution to put, at least, some acts of the press out of the control of Congress, by the authority of this writer, all are subjected to their power.

But it is said, that the States have all adopted the same construction which is given to freedom of the press by the committee, for that all the State constitutions provide for it, and yet the law of libels remains part of their codes. If this is fact, about which however I am uninformed, it is easily to be accounted for. At the Revolution, the State laws were either the law of England, or were built on it, and, of course, they would contain the monarchical doctrine respecting libels. When the State constitutions were formed, the old law was continued in force indiscriminately, and only a general exception made of what should be found inconsistent with the State constitutions. Now, to prove that the States have considered the law of libels consistent with the freedom of the press, gentlemen should show that this law has been practised on since the Revolution, and that the attention of the States had been called to it by its execution, and that it still remains in force. I believe this cannot be done. So far as I know, it has been a dead letter. I mean the law of libels against magistrates, and if so, the argument is reversed, and is wholly on my side. The terms of this law furnish one of the best proofs of the truth of my opinion; for the framers of it, wound up as they have been, in their notions about Government, since the adoption of the State Governments, endeavored to take a middle course between real liberty and the State law, which is supposed to continue in force, and have studiously endeavored to conceal that their doctrine leads to the same thing by constantly pretending that their law is to punish only falsehood. This is a plain admission, that even now, public opinion would not support what they pretend is the law of each State. But from the argument before urged, I think it must be admitted, that if the States had so understood it, the construction could not be extended to this amendment. No solemn instrument can be construed so as to destroy it. I have seen somewhere, and I beg leave here to remark on it, the authority of the Convention who formed the constitution of Virginia, quoted to justify this construction. That Convention is said to have passed a law similar to the law of Congress, after having provided for the liberty of the press in their bill of rights. Let us examine that law. The first section is to punish those who shall "by any word, open deed, or act, advisedly and willingly maintain or defend the authority, jurisdiction, or power of the King, or Parliament of Great Britain, heretofore claimed over this Colony, or shall attribute any such authority," &c. This section, passed at the beginning of the most awful contest in which ever man was engaged, a contest for the right of self-government against one of the most powerful nations in the world, was to establish what? Not the inviolability of the Governor of the State, nor of the majority of either House of the Legislature, but to punish men who should promote resistance to the right of the people to govern themselves, to the principle of the constitution, to the republican principle. So different is this from the object of the law of Congress, that it would have been impossible to believe that they should have been compared, if we had not seen it done. All argument must be thrown away on gentlemen who do not feel the difference between the respect due to the constitution, to the right of self-government in the people, and that which is due to the organs of administration, who cannot only deserve contempt, but who are to be removed with disgrace, according to the constitution itself, when they misbehave. By the second section of this law, those were to be punished "who should maliciously and advisedly endeavor to excite the people to resist the Government of the colony, or persuade them to return to a dependence on the Crown of Great Britain, or maliciously and advisedly to excite or raise tumults and disorders in the State, or maliciously and advisedly terrify and discourage the people from enlisting in the service of the Commonwealth, or dispose them to favor the enemy." The design of this section is apparently the same with the former. Every act of ill-will to the existing Government, is immediately followed by one tending to submission to Great Britain. These acts are, however, out of the question, for they belong to the class enumerated in the first section of the sedition law, which nobody wishes to repeal, as the committee declare. But if the law had any analogy to the law of Congress, it would be improper to quote it; for it is well known that our Revolution made a resort to expedients necessary in a variety of instances, which could not be justified by principle, and that for a time personal rights were compelled to bend before public necessity.

A distinction is very frequently relied on, between the freedom and the licentiousness of the press, which it is proper to examine. This seems to me to refute every other argument which is used on this subject; it amounts to an admission that there are some acts of the press which Congress ought not to have power to restrain, and that by the amendment they are prohibited to restrain these acts. Now, to justify any act of Congress, they ought to show the boundary between what is prohibited and what is permitted, and that the act is not within the prohibited class. The constitution has fixed no such boundary, therefore they can pretend to no power over the press, without claiming the right of defining what is freedom, and what is licentiousness, and that would be to claim a right which would defeat the constitution; for every Congress would have the same right, and the freedom of the press would fluctuate according to the will of the Legislature. This is, therefore, only a new mode of claiming absolute power over the press.

But it is said, that the phraseology of the amendment proves that the framers of it considered the freedom of the press as limited, otherwise they would have used the same words in speaking of the freedom of the press which they use in speaking of religious establishments. This argument is certainly fanciful; but it shall be considered, as it is my design to leave no argument, which I recollect to have seen, unanswered. It is plain the writer of the amendment intended to indulge his copiousness of expression, or that he had been accustomed to use certain words in a particular connection. The amendment says, in speaking of religion, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The change of expression, according to the argument, ought to have some new object; and yet there can be no doubt that if the word prohibiting was dropped, the provision would be the same. But the argument will lose all force when the amendment is read to the end, and it seems to have arisen merely from the committee having stopped in the middle of it, and lost sight of the latter part. It says, "or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances." The argument is that the word abridging, as it is distinguished from respecting, implies that the freedom of the press was before limited; but, if this is true, it must also be the case with the right of peaceably assembling and petitioning, &c. Is this pretended, and may we hereafter expect to have a definition of the right of petitioning, which will put it also under the control of Congress?

I think I have answered every construction of the amendment which can prevent its being completely prohibitory of all legislation by Congress on the subject of the press, unless there was some existing restraint under the Constitution of the United States, at the time of adopting the amendment. To this inquiry I now proceed.

It is said, there is a common law which makes part of the law of the United States, which restrained the press more than the act of Congress has done, and that therefore there is no abridgment of its freedom. What this common law is I cannot conceive, nor have I seen any body who could explain himself when he was talking of it. It certainly is not a common law of the United States, acquired as that of England was, by immemorial usage. The standing of the Government makes this impossible. It cannot be a code of laws adopted because they were universally in use in the States, for the States had no uniform code; and if they had, it could hardly become, by implication, part of the code of a Government of limited powers, from which every thing is expressly retained, which is not given. There never was a uniform code of laws at any time among the States. Their settlement took place at different times, and the law of England was adopted up to the respective settlements, in the whole or by selection. Virginia recognized the common law, properly so called, and the statutes to the 4th James I.; Maryland, the common law, and statutes up to the time of her settlement; and South Carolina, I am told, never acknowledged any of the English statutes to be in force, except what were specially adopted by law. With this dissimilarity at the commencement, there can be no doubt that the decisions of courts, and the statutes which were constantly passing, must have made the codes of the several States altogether unlike at the time of adopting the Federal Government. Is it the law of England, at any particular period, which is adopted? It cannot be believed that this was a universal favorite; for it had been greatly altered in every State, to adapt it to their situation, and it cannot be believed that after altering it under the instruction of experience, it was intended to bring it again into force. But the nature of the law of England makes it impossible that it should have been adopted in the lump into such a Government as this is; because it was a complete system for the management of all the affairs of a country. It regulated estate, punished all crimes, and, in short, went to all things for which laws are necessary. It might be more properly considered as the measure of the powers left with the States. But how was this law adopted? Was it by the constitution? If so, it is immutable and incapable of amendment. In what part of the constitution is it declared to be adopted? Was it adopted by the courts? From whence do they derive their authority? The constitution, in the clause first cited, relies on Congress to pass all laws necessary to enable the courts to carry their powers into execution; it cannot, therefore, have been intended to give them a power not necessary to their declared powers. There does not seem to me the smallest pretext for so monstrous an assumption; on the contrary, while the constitution is silent about it, every fair inference is against it. It was thought necessary to adopt expressly many of the ancient and most valuable principles of the law of England, such as trial by jury, and the writ of habeas corpus; and wherever the constitution gives cognizance of crimes, which were known in the law, it requires Congress to define them, and direct the punishment, except in the case of treason, which it defines itself. Perhaps it may be said, that the law of England with respect to libel was in force in all the States, and that therefore it is to be considered as adopted. When we recollect what that law is, that it punishes truth as well as falsehood, and that the Congress of 1798 did not think proper to enact its provisions in the full extent, it may be fairly denied that it could have accorded with the jealous republican temper of the Convention who adopted the constitution. If the common law was adopted on this subject, it was adopted entire as it then existed, and must remain for ever unchangeable as part of the constitution. The power of juries must be the same that it was then, and no more, and the improvement which was immediately afterwards produced by public opinion in that respect, in England, will be denied to us, and we may even have to regret the want of some of the provisions of the present odious law; but there is too little reason for the suggestion of there being a common law in the United States, to need a refutation. If there was a uniformity in the law respecting libels, it is one of the strongest evidences of what was before said, that this whole doctrine of libels was obsolete; for nobody can doubt, after hearing what it is, that it must have undergone considerable changes, if it had ever been practised on.

The committee seem to suppose, for I confess it is very difficult to comprehend this part of their argument, that the law of libels is adopted by that part of the constitution which extends the judicial power to cases of law and equity arising under the constitution; for this is the expression of the part referred to by them, and not "offences arising under the constitution," as they have quoted it. How this can be inferred, I cannot conceive. If the expression was "offences," as they assert, still it would mean offences on which Congress was directed by the constitution to legislate; but, as the expression really is, the cases are innumerable which come within it. See "The Federalist," vol. II., for an explanation of this part of the constitution. It is there said: "It has been asked, what is meant by cases arising under the constitution, in contradistinction from those arising under the laws of the United States? All the restrictions on the authority of the State Legislature furnish examples of it," &c. For the opinion of the same writer, as to the force of the common law in the United States, see same volume, page 345, and the two following pages, in which he answers the objection to an omission of its provisions, and admits that it is not adopted by the constitution.

Upon the whole, therefore, I am fully satisfied, that no power is given by the constitution to control the press, and that such laws are expressly prohibited by the amendment. I think it inconsistent with the nature of our Government, that its administration should have power to restrain animadversions on public measures; and for protection from private injury from defamation, the States are fully competent. It is to them that our officers must look for protection of persons, estates, and every other personal right; and, therefore, I see no reason why it is not proper to rely upon it, for defence against private libels.

The call for the question being loud,

Mr. McDowell rose, and hoped the question would not now be taken, but that the committee would rise, it being now a late hour of the day, and he doubted not other gentlemen would wish to deliver their sentiments upon this important question; and he thought an hour or two of to-morrow might be well employed in the discussion of this subject—a subject which had been brought before the House by the people, and ought, therefore, to receive a full discussion. He moved the committee to rise.

The question on rising, was put and negatived—55 to 42.

The question was then taken on the resolution, and carried, 52 votes being in favor of it.

The question was then taken upon the third resolution, which was carried without a division.

The committee then rose, and the question being upon concurring in the agreement of the committee for the first resolution,

Mr. Livingston entered upon a defence of the sentiments which he delivered when the passage of this law was under consideration, which, he said, had been much misrepresented; but, after making some progress in his observations, the Speaker declaring them unconnected with the question before the House, he sat down, and the first resolution was decided by yeas and nays, and stood—52 to 48, as follows:

Yeas.—John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock, Christopher G. Champlin, John Chapman, James Cochran, William Craik, Samuel W. Dana, John Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, William Gordon, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, Samuel Lyman, James Machir, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Isaac Parker, Thomas Pinckney, John Read, John Rutledge, jr., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, Robert Waln, and John Williams.

Nays.—Abraham Baldwin, David Bard, Thomas Blount, Richard Brent, Robert Brown, Samuel J. Cabell, Thomas Claiborne, William Charles Cole Claiborne, Matthew Clay, John Clopton, Thos. T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas Elmendorph, William Findlay, John Fowler, Nathaniel Freeman, jr., Albert Gallatin, James Gillespie, Andrew Gregg, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Edward Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Josiah Parker, Thompson J. Skinner, Samuel Smith, William Smith, Richard Sprigg, Richard Stanford, Thos. Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams.

Mr. McDowell then moved an adjournment; which was negatived—55 to 38.

The question was then taken on the second resolution, upon which the yeas and nays were exactly the same as upon the first.

The question on the third was concurred in, 61 votes being for it.