Mr. Mitchill expressed his wish that the section of the bill might stand. To strike it out would be to make void all the proceedings respecting the province of Louisiana, on which Congress had been engaged with so much care and diligence. We had purchased the country, and made arrangements to pay for it; and now, with the consent of France, possession is to be taken; when behold! an objection is made to that part of the intended statute which confers on the President the power to occupy and hold it peaceably for the nation.
But, let it be examined fairly what Congress are meditating to do. The third section of the fourth article of the constitution contemplates that territory and other property may belong to the United States. By a treaty with France the nation has lately acquired title to a new territory, with various kinds of public property on it or annexed to it. By the same section of the constitution, Congress is clothed with the power to dispose of such territory and property, and to make all needful rules and regulations respecting it. This is as fair an exercise of constitutional authority as that by which we assemble and hold our seats in this House. To the title thus obtained, we wish now to add the possession; and it is proposed that for this important purpose the President shall be duly empowered. There is no person in the nation to whom this can be so properly confided as to the President.
Mr. Dana said if the amendment proposed by the gentleman from Pennsylvania were inserted, it might imply that we may pass laws that were unconstitutional; it was, therefore, superfluous. It is objected to the scope of the second section, that it is unconstitutional; insert the amendment and it nullifies it. The gentleman from New York (Mr. Mitchill) has referred to a subject with which he is well conversant. He is correct in stating that the formal style of the English acts is in the name of the King. In the formal style of the acts of Parliament, the King is legislator; but will it be inferred from this circumstance that he is the real legislator? The gentleman is too well acquainted with the constitution and laws of that country, not to know that the King, though nominally the dispenser of justice, cannot himself sit upon the bench, and that this has been the case since the act of settlement. He might, in support of this position, refer to the declaration of a celebrated Chief Justice of England, who had said that the honor of the Crown had nothing to do with the courts of justice.
The gentleman is equally unfortunate in his remarks on the power of Congress to make rules for the government of a Territory. It is objected to this, that in this case you make no laws at all. Is it to make laws, to say a man may do as he pleases? The proposed government is not even provisional or circumscribed. Insufficient also is any argument deducible from the ordinance establishing territorial governments. He presumed the ordinance alluded to was that of 1787. Under that ordinance the President is authorized to appoint the judges of the Territory; but once appointed, they hold their offices during good behavior. Who, under that ordinance, make the laws? Neither the judges nor the President. No laws can be accepted but such as have received the sanction of a representative body. What is proposed by the bill? That all powers, military, civil, and judicial, exercised by the officers of the existing government, shall be vested in such persons, and shall be exercised in such manner as the President shall direct. He may, under this authority, establish the whole code of Spanish laws, however contrary to our own; appoint whomsoever he pleases as judges, and remove them according to his pleasure; thus uniting in himself all the power, legislative, executive, and judicial. This, though a complete despotism, gentlemen may perhaps say is necessary. If so, let the military power be exercised by the President as commander-in-chief of the armies.
Mr. Eustis said it was possible the bill under consideration might in its details be objectionable, but in principle it was certainly sound. The Government of the United States has a constitutional right to acquire territory, and they have consequently a right to take possession of it when acquired. The taking possession of it was not only the right, but the duty of the Government. And how is this to be effected? Will any gentleman venture to propose a delay until Congress shall have passed a new code of laws? Are gentlemen, at this late day, to be informed that this would be to throw away one of the most valuable acquisitions made by our country since the adoption of the constitution, or the Declaration of Independence? As the gentleman, last speaking, rightly observes, the entire government of Spain ceases on our taking possession. Are we then to abandon the people to anarchy?
As to the extent of the power vested in the Executive, it arises from necessity. This is a new case altogether. There is no doubt that on many particular subordinate points, respecting the secure possession of this country, difficulties may present themselves. But Mr. E. presumed and expected that the same wisdom that acquired it, would preside over the councils of the nation to meet and overcome those difficulties. The second section of the bill contemplates the transfer to officers of the United States, of the same powers now exercised. It may be that the exercise of all these powers will not be necessary; while it is possible that others may be necessary. There may be difficulties of various kinds. He should name none. But as they arise, it will be the duty of the Government to be prepared to meet them. He would, therefore, wish this act rather to increase than curtail them; and that the President should be authorized not only to continue all necessary existing powers, but to institute such other powers as may be necessary for the well-being of the Territory. Till when? Until this House and the other branch of the Legislature shall make the necessary laws. The powers delegated by the bill are imposed by the imperious circumstances of the case. What if forcible possession shall prove necessary, and the innocent inhabitants should be slaughtered, through a want of the powers necessary to preserve tranquillity and good order; whose will, under such circumstances, will be the governing one? Will not the President, in such event, have all the powers now given him?
Mr. R. Griswold.—The powers proposed to be conferred by the gentleman are without limits. It may be necessary for the welfare of the people, to secure their religion. The President may be, therefore, constituted grand inquisitor, he may also be made a king, and likewise a judge, for the good of the people. I am not, said Mr. G., willing myself to give him such extensive powers. I can, however, well account for certain gentlemen urging on this occasion the old French argument of “imperious necessity.” But such a pretext can never justify me in giving a vote that will violate the constitution. I can, in truth, see no such necessity, as provision can be made for admitting these people to the enjoyment of all the privileges stipulated by the treaty, without involving a violation of the constitution. Gentlemen may criminate, as they please, the motives of those who are for restraining this extension of executive power; but I trust, whatever may be the feelings of gentlemen, that the committee will not be impressed with the same opinion entertained by them; but that if they consider this delegation of power as repugnant to the constitution, they will not agree to it, or, in other words, to the investiture of the President with absolute power over this province. If, on the other hand, they think the delegation is constitutional, they will feel no repugnance to agreeing to it; because, as I observed before, the power will be of short duration, and will not, probably, be abused.
As to the idea of some gentlemen, that this territory, not being a part of the United States, but a colony, and that therefore we may do as we please with it, it is not correct. If we acquire a colony by conquest or purchase—and I believe we may do both—it is not consistent with the constitution to delegate to the President, even over a colony thus acquired, all power, legislative, executive, and judicial; for this would make him the despot of the colony. Mr. G. concluded his remarks by observing that he had no jealousy of the abuse of this power by the President; but not being, in his opinion, authorized by the constitution, he could not agree to vote for it.
Mr. Smilie said, this subject struck him differently from other gentlemen. If it appeared clear to him that the constitutional right to delegate the powers contemplated by the second section did not exist, he should vote against it. But he entertained no doubt on this point. He knew that it had been doubted whether the constitution authorized the Government of the United States to acquire territory; but those doubts were this day abandoned. He agreed in opinion with the gentleman from Massachusetts, (Mr. Varnum,) that the Constitution of the United States did not extend to this territory any further than they were bound by the compact between the ceding power and the people. On this principle they had a right, viewing it in the light of a colony, to give it such government as the Government of the United States might think proper, without thereby violating the constitution; when incorporated into the Union, the inhabitants must enjoy all the rights of citizens. He would thank gentlemen to show any part of the constitution that extends either legislative, executive, or judicial power, over this territory. If none such could be shown, it must rest with the discretion of the Government to give it such a system as they may think best for it. At the same time, Mr. S. said, he would pledge himself to be among the first to incorporate the territory in the Union, and to admit the people to all the rights of citizens of the United States.
Mr. Rodney.—When a constitutional question is made, and constitutional objections urged by a respectable member of this House, they shall always receive from me a respectful attention. On this occasion I shall endeavor to answer the objections, and remove the doubts entertained by some gentlemen. I believe we shall find that, by adopting the second section of the bill under consideration, we shall not infringe the constitution in the remotest degree. No person is more opposed to the extreme of absolute and unlimited power, or to vesting in any man that authority which, by not being circumscribed within known bounds, may be easily abused. No man can be more opposed to the exercise by the President of powers exercised by the Spanish inquisition, and authorized by other Governments. But cases may occur where, for a moment, powers to which, without an absolute necessity, no one would agree, become necessary to be vested in some department of the Government; and I am in favor of this section for the reasons assigned by my friend from Virginia, to wit, that the exercise of the powers delegated will be confined to a short space, and will be of no further duration than shall be necessary to obtain the end of a secure possession of the Territory.