Mr. J. Randolph said he was apprised that the bill was of such a nature as seemed to delegate to the President of the United States a power, the exercise of which was intended to have but a short duration; he was also aware, that some such power was necessary to be vested in the Executive, to enable him to take possession of the country ceded by France. But he could conceive no cause for giving a latitude, as to time, so extensive as that allowed by the second section, which says, that “until Congress shall have made provision for the temporary government of the said territories, all the military, civil, and judicial powers, exercised by the officers of the existing government of the same, shall be vested in such person or persons, and shall be exercised in such manner, as the President of the United States shall direct.” If we give this power out of our hands, it may be irrevocable until Congress shall have made legislative provision; that is, a single branch of the Government, the Executive branch, with a small minority of either House, may prevent its resumption. He did not believe that, under any circumstances, it was proper to delegate to the Executive a power so extensive; but if proper under certain circumstances, he was sure it was improper under present circumstances. As he conceived it proper to deal out power to the Executive with as sparing a hand as was consistent with the public good, he should move an amendment to substitute in the place of the words “Congress shall have made provision for the temporary government of the said territories”—these words, “the expiration of the present session of Congress, unless provision for the temporary government of the said territories be sooner made by Congress.” So that if Congress shall make provision for the government of the territory at any time during the session, the power of the President will cease, and at any rate at the expiration of the session. In other words, this amendment will compel Congress to take early measures for reducing this enormous power, delegated to the Executive, by the establishment of a government for the people of Louisiana.
Mr. R. Griswold moved to strike out the whole of the second section, which would supersede the motion of the gentleman from Virginia. He made this motion to obtain an explanation respecting the nature and extent of the delegated power. That section provides “that until Congress shall have made provision for the temporary government of the said territories, all the military, civil, and judicial powers, exercised by the officers of the existing government of the same, shall be vested in such manner, as the President of the United States shall direct.” I wish to know, said Mr. Griswold, whether any gentleman can inform me what the military, civil, and judicial powers, exercised by the officers of the existing province are; for we are about to confirm them, and direct their execution by the authorities of the United States.
It is probable that some of them may be inconsistent with the Constitution of the United States. We have certain restrictions on powers exercised under it. For instance, that the habeas corpus shall not be suspended in cases of invasion or rebellion, and a variety of other restraints. It is for this reason that I think we ought to have some knowledge of the powers exercised in Louisiana, before we confirm them in the lump; and in order to obtain this information, I move to strike out the section.
Mr. Elliot rose to second the motion of the gentleman from Connecticut, and to express his coincidence in the sentiments of that gentleman on this subject. He would never consent to delegate, for a single moment, such extensive powers to the President, even over a Territory. Such a delegation of power was unconstitutional. If such a provision as that contemplated by the section were necessary, it became Congress itself to enter upon the task of legislation.
Mr. J. Randolph had hoped that some other member would have given the gentleman from Connecticut the satisfaction he asked in relation to the provisions of the section proposed to be stricken out. No one having risen, he would do it himself as well as he was able. That gentleman asks whether we know the civil, military, and judicial powers that subsist in Louisiana; and contends that it is necessary we should know them before they are transferred to the Executive of the United States. If the section were to stand as it now does, Mr. R. said he would be as unwilling as the gentleman from Connecticut to agree to it. But, with the proposed limitation, he saw no substantial objection to it. He was one of those who did not know with precision what the subsisting civil, military, and judicial powers exercised in Louisiana were; and yet he saw not the difficulty which the gentleman had stated, as to the temporary transfer of the powers to the Executive with the limitation proposed—and wherefore? Because, in the nature of things, it was almost impossible to take possession of the country without the exercise of such powers at some point of time, and if they should be exercised but for a single moment, such exercise would be as hostile to the principles of the gentleman as the exercise of them for a whole year.
I ask, said Mr. R., whether if the country should be taken possession of on the principles advocated by the gentleman on a former day, these powers would not all have attached to the Executive? Suppose, instead of assuming the civil government of the territory, it had been taken possession of by storm, by an army of 40 or 50,000 soldiers—will the gentleman contend, that under such circumstances, the privilege of the habeas corpus or trial by jury would have been invaded? Undoubtedly not. If the gentleman will advert with precision to the first section, he will perceive that it is contemplated to take possession in such a manner as will give the United States security in that possession. For though we might not doubt the disposition of the Government of France to give us a secure possession, or apprehend difficulty from any other quarter, yet it would be recollected that there were citizens or subjects in the territory requiring some government. It was not impossible that on taking possession there may be some turbulent spirits, who, having at heart the advancement of personal schemes, may be disposed to resist. It would be unwise then in Congress to delay making the requisite provision, until necessity claimed it, and until, perhaps, after Congress had adjourned.
Gentlemen will see the absolute necessity of the path chalked out by the Senate. They will see the necessity of the United States taking possession of the country in the capacity of sovereigns, in the same extent as that of the existing government of the province. After having taken possession, and being in the secure enjoyment of the country, it will be extremely proper to guard against any apprehended Executive invasion of right. This step will then be politic, and it will be observed that the section as amended enjoins this duty upon Congress. If, however, the gentleman from Connecticut will show us any way in which the country may be taken possession of, with security, and by which the people may enjoy all the rights and franchises of citizens of the United States immediately, I shall be happy to give it the sanction of my vote. But to my mind this appears impossible.
Mr. Griswold thought it extraordinary that the gentleman from Virginia should call upon him to propose a plan for avoiding the difficulties that would apparently result from the system proposed by the bill, when it had only that day been laid upon their tables, and had been yesterday refused to be referred to a select committee; and of consequence, no time for reflection had been allowed. Under these circumstances, it was indeed extraordinary that he should be expected to propose a plan. He confessed he was unable to offer any. To do it would doubtless require time and deliberation. It was sufficient for him that the bill infringed the constitution. By the second section it is proposed to transfer to the President of the United States all the powers, civil, military, and judicial, exercised at present in that province. What are those powers? No gentleman is able to inform me. It may be presumed that they are legislative; the President, therefore, is to be made the legislator of that country; that they are judicial, the President, therefore, is to be made judge; that they are executive, and so far they constitutionally devolve on the President. Hence, we are about making the President the legislator, the judge, and the executive of this territory. I do not, said Mr. G., understand that, according to the constitution, we have a right to make him legislator, judge, and executive, in any territory belonging to the United States. Though, therefore, on this occasion, I feel no jealousy of the abuse of the powers conferred on the President, yet I cannot agree to them, because I consider them repugnant to the constitution.
The argument that the powers are necessary, though unconstitutional, is no argument with me. If gentlemen can so explain the section, as to show to the satisfaction of the committee that it is competent to this House to transfer to the President all these powers, I shall have no objection to the section; but until this is done, it is my duty to vote for striking it out. And though it is impossible for me, at this moment, to devise a plan for overcoming these difficulties, yet I trust, if time be allowed, there will be found wisdom enough in the committee to devise one. To the first section, authorizing the taking possession of the country, so far as I can understand it, I can see no objection.
Mr. Nicholson was opposed to striking out the second section, as he did not perceive the evils contemplated by the gentleman from Connecticut. The question is, whether we shall take immediate possession of this country, or wait till this body shall have time to form such a government as shall be hereafter likely to render the people happy, under laws according to the provisions of the constitution? I think, said Mr. N., it will be injudicious to delay taking the possession, until such a government shall be formed. The only question then that can be started is, whether the second section of this bill violates the constitution. On this point I differ entirely from the gentleman from Connecticut. I do not see in it any violation of the constitution. The gentleman supposes that by adopting the provisions of the second section we shall vest all the civil, military, and judicial powers of the existing Government of Louisiana in the President. But it clearly is not so. We vest in him the appointment of the persons who shall exercise these powers, but we do not delegate to him the exercise of the powers themselves. Is there any difference between this, and the provisions of the ordinance of 1787, which relates to territorial governments? By that ordinance, and I have never heard its constitutionality questioned, all the civil, military, and judicial powers are vested in such persons as the President may appoint.