[H. OF R.

Treaty, its principles were so essentially changed that he felt himself constrained to vote against the bill for carrying a Treaty into effect which embraced such powers and was supported by such principles. The power of sequestrating debts he did not at this time object to, on account of our peculiar circumstances with relation to Britain. Sequestration stood connected with war, as it was of use only as a means of preventing war or carrying it on with advantage: therefore, the formal power of declaring war may, on the same principles, be exercised by the Executive; and war is more frequently engaged in Europe by Treaties than by any other method.

Our Constitution undoubtedly intended to prevent the exercise of this power by Treaties, but it has as explicitly restrained the power of regulating commerce.

He said, that the power of regulating commerce with foreign nations was as explicitly vested in Congress, as the powers of appropriating money, declaring war, levying taxes, &c., and by the principles on which the Treaty is advocated, the negotiating power may exercise these or any other or all the Legislative powers of Congress, or transfer them to be held in concurrence between the negotiating power and foreign nations, without the concurrence of Congress, with which these powers are specifically vested and expressly guarded. He added, that the construction on which the He said, he wished to give his testimony by Treaty was supported, viz: that the Treaty-having his nay on the Journals; but, as it was his making power might exercise any or all of the misfortune to be out when the yeas and nays powers vested in Congress, as far as they related were called on the same question, and not the to foreign nations, was not supported by the Con- fault of the House, it would be improper for him stitution, but destructive of it; declarations of war to urge a repetition of the call merely on his own and all things connected with them, have as ne-account, but would be glad if any other member cessary a relation to foreign nations as the regulating of commerce has, and the levying taxes and appropriating money for carrying such Treaties into effect have as much relation to foreign nations as the regulations of commerce, as they cannot be carried into effect without the exercise of these powers; consequently, on the principles on which the Treaty is supported, the PRESIDENT, with the consent of the Senate, in its Executive capacity, may declare war, levy and appropriate money, and exercise every other Legislative power vested in Congress, by only connecting the exercise of them with the Treaty form. He said, this was not sanctioned by the words of the Constitution; it is no where said that the negotiating powers should exercise any or all the powers vestMr. GOODHUE, Chairman of the Committee of ed in Congress by the only means of interesting Commerce and Manufactures, reported a bill for foreign nations in the exercise of them by Treaty. the relief of Samuel Brown; another for the reSuch a latitude of construction cannot be admit-lief of Moses Myers; another for the erection of a ted, because it subjects all the Legislative authority to the discretion of the Executive and foreign

nations.

would call them that he might have an opportunity to give his nay. Whether the names were called or not, he said he would vote against the bill.

Mr. JACKSON said, he had yesterday declared his intention of calling for the yeas and nays upon the passing of the bill; but, as it had since occurred to him, that it might be thought this would be carrying opposition too far, he would decline persisting in his intention. The yeas and nays were, therefore, not taken.

WEDNESDAY, May 4.

light-house on Cape Cod ; and one for the establishment of certain new ports of entry and delivery; which were severally twice read, and ordered to be engrossed for a third reading.

Mr. G. also made a report on the petitions of certain custom-house officers, recommending that they should lie over till the next session. Agreed to.

He said, the only expressions on which this new construction rested was the declaration that the PRESIDENT and Senate shall make Treaties; but the declaration in the Constitution that Congress, consisting of a Senate and House of Representatives, shall make all laws; yet, notwith- Mr. NICHOLAS, Chairman of the Committee apstanding the positiveness of the word "make," pointed to confer with a committee from the Sewhat they do make is not a law until it is ap-nate, with respect to the business which remained proved and signed by the PRESIDENT. Admit necessary to be finished before the session ended, the word "make" to have the same meaning in and when it would be proper to adjourn the same the one case as in the other, and the difficulty is reported it as the recommendation of that comremoved. The construction for which he con-mittee that the session should be adjourned on the tended preserved the Constitutional powers in 20th of the present month. He also reported a their proper departments, and where the negotiat-list of business which was entitled to a preference. ing power thinks it proper to treat on Legislative subjects. Let the concurrence of Congress be obtained, as is usual in all free Governments, and the Constitution is preserved; but on the construction contended for by the advocates for the

The House resolved itself into a Committee of the Whole on the report of the committee on the subject of Post Offices and Post Roads; which, having gone through, and made several amendments, the House took up the consideration of

The ordinance of July, 1787, provided that the Territory Northwest of the Ohio should, for the purposes of temporary government, be one district; subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient.

The ordinance then provides that when there are five thousand free male inhabitants in that Territory, the inhabita ts shall be entitled to a Legislature, still however remaining subject to the government and control of Congress. It then sets forth:

"That, in order to provide for the establishment of States and permanent government in the said Territory, equal footing with the original States, at as early a period as may be consistent with the general interest, it is declared that the following articles shall be considered as articles of compact between the original States and the people and States which may be formed therein, shall forever remain a part of the Confederacy of the United States, subject to the articles of Confederation, and to such alterations as shall be constitutionally made, and to all the acts and ordinances of the United States."

and for their admission into the Federal Councils on an

"ART. 5. There shall be formed in the said Territory not less than three nor more than five States; and whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever, and shall be at liberty to form a permanent Constitution and State Government."

The act of Congress of May, 1790, establishing a Government for the ceded Territory South of the Ohio, declares that the said Territory, for the purposes of temporary government, shall be one district, the inhabitants of which shall enjoy all the privileges set forth in the ordinance of the late Congress for the government of the Territory Northwest of the Ohio; and that the government of the Territory South of the Ohio shall be similar to that which is now exercised in the Territory Northwest of the Ohio.

[H. OF R.

subdivide that Territory into two or more States; this was evident, both from the terms of the compact in the ordinance of 1787, which declares "that States shall be formed in the said Territory," and from the act of cession of 1790, which declares that "the Territory so ceded shall be laid out and formed into a State or States, containing a suitable extent of territory." It was no less clear that the number of sixty thousand free inhabitants had no reference to the Territory, in its present character as a Territory under the government of Congress, but as a State, previously formed by Congress. Allowing that there were sixty thousand inhabitundoubtedly, by dividing it into two States, leave ants in the Southern Territory, Congress might, less than sixty thousand inhabitants in either, and consequently deprive them of any claim whatever to an admission into the Union at this time.

Both the ordinance and act of cession contemplated, first, a temporary, and after a certain period, a permanent Government; the temporary Government was to be adapted to its character as a Territory of the United States, the permanent Government was intended to apply to it when formed into a State.

2dly. By what authority is the census to be taken?

The Constitution of the United States vests in Congress the power to make all needful rules and regulations respecting the territory of the United States.

ordinance which is their charter, authority to The Legislature of the Territory have, by the make laws, in all cases, for the good government of the district, not repugnant to the principles and articles established in the ordinance.

determine whether the Territory was to remain The taking a census, the result of which was to subject to the Government of the United States or be an independent State and admitted into the Union, could never have been considered as a common act of legislation for the government of the district; it was an extraordinary case, which peculiarly required the interposition of Congress.

Their Legislative power related only to their internal concerns, and was incompetent to this great and external object. But if his reasoning on the former point was correct, the enumeration of the inhabitants was premature and of no effect; it could have no operation until Congress had formed a State, and designated its boundaries.

Mr. S. said, from a review of these acts and ordinances, the following deductions seemed clearly to result: that the inhabitants of the Territory Northwest or South of the Ohio could not claim an admission into the Federal Councils until the Territory was previously formed into one or more States. Secondly, that Congress was alone competent to form the Territory into one or more States. This conclusion, he thought, obviously flowed 3dly. Had the census been fairly taken? from the terms of the compact, "States shall be Mr. S. thought there were circumstances to formed in the said Territory;" and whenever any warrant an opinion that the census was not such of the said States shall have sixty thousand free a one as ought to be relied on. inhabitants therein, such State shall be admitted, the act of Congress of 1790, for taking the enumeA comparison of &c. The privilege of admission into the Union, ration of the inhabitants of the United States, with and the number of sixty thousand free inhabitants. the act of the Southwestern Territory, would have reference to the Territory only in its capaci-show that although the latter was generally copied ty as a State; they are only applicable to a State or States previously formed by Congress. The first step then to be taken was for Congress to determine whether the Territory South of the Ohio should be formed into one or more States, and to fix the boundary of such State or States.

It was clear, Mr. S. said, that Congress might

from the former, yet that it pointedly deviated from it in every circumstance which would have a tendency to swell the number of inhabitants. The act of Congress spoke of "the inhabitants within the respective districts." The act of the Territory spoke of "people within the respective counties." Where the one says, "persons resident.

re

within," the other says, "people within;" thus carefully omitting the words "inhabitants," "6. sident." The act of Congress says, "that every person whose usual place of abode shall be in any family on the first Monday in August next, shall be returned as of such family." The act of the Territory says, "every person whose abode shall be in any family within the time limited by the act, shall be returned as of such family." The one says, "the name of every person who shall be an inhabitant of any district shall be inserted," &c. The other says, "every person who shall be in any county at the time of the enumeration without any settled place of residence, shall," &c. By the act of Congress, the returns are directed to be posted up, to guard against frauds. By the act of the Territory no such caution is observed. From the peculiar period in which the census was taken, viz: from the 15th September to 15th November, the period of the greatest emigration through the territory of Kentucky and Cumberland, from the circumstance of the Sheriffs' being allowed a dollar for every 200 persons they returned, from the circumstance of the number returned being just sufficient to give them two members, and from the law being so framed as to authorize the enumeration not only of all transient persons and strangers, but also of the inhabitants and travelers, several times over; it was not an uncharitable conclusion that the enumeration was not so correct as to be admitted by Congress on so solemn an occasion.

[MAY, 1796.

had been alluded to, might give rise hereafter, if now silently acquiesced in by Congress, to disagreeable discussions.

There were several other points in this Constitution which he thought objectionable; he would only, however, notice two which occurred, namely, the right asserted to instruct their Representatives, and their declaration, "that no person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of the State," thus admitting such persons to hold military offices. In making these comments, he did not mean to call in question in the least the right of the people of the Territory to frame their own Constitution and form of Government, but to show that this Constitution might, if sanctioned by any measure on the part of Congress, involve the United States hereafter in some embarrassment, and that the people of the Territory would receive no injury by a delay of the business, and by a revision of the Constitution, which was susceptible of material improvement. Indeed, in his opinion, the whole business was premature, and he could not suppress his declaration that the United States had not been on this occasion treated with that consideration and respect to which they were entitled.

moment to the United States, that a proposition which admitted a new State to the equal rights in one important branch of Government in the affairs of the nation should be seriously considered and grounded on clear Constitutional right. In order to conform the present application to such right, he thought the following course ought to be pursued: Ist. That Congress should declare the Territory south of the Ohio a State, for the purpose of permanent Government, and designate its boundaries. 2dly. That Congress should then pass a law, directing the enumeration of the free inhabitants. 3dly. That on finding the Territory to contain 60,000 free inhabitants, such State shall be admitted into the Union. Mr. S. then read certain propositions to that effect, which he informed the Committee he should propose, if the report of the select committee should be rejected.

He was notwithstanding willing, if the people of the Territory were desirous of being admitted into the Union, as a separate State, to facilitate such admission, provided it were done in a Constitutional manner. It was a matter in which Mr. S. said he had looked into the Constitution the whole Union were interested, as well as the of this new State, and he could not help observ-people of the Territory; it was of considerable ing that it carried with it the same marks of haste and inaccuracy as the rest of the proceedings. In several parts it was repugnant to the ordinance of 1787, and to the Constitution of the United States. It vested the Legislature with all powers necessary for the Legislature of a free State, without any exception of the stipulations contained in the ordinance, which in several important points control and restrict the States to be formed in the Territories in their Legislative acts; and it is evident that no limitations were intended to the power of the Legislature, because in speaking of the Executive power, such a limitation is inserted. Art. 2, section 5, says "the Governor shall be commander-in-chief of the army and navy of this State, and of the militia, except when they shall be called into the service of the United States;" thence it followed that the Legislative power was meant to be unqualified by any exception. The articles He concluded with remarking, that, in a few which made all lands within the Territory equally years, other States would be rising up in the liable to taxation, which declared that no fine shall Western wilderness, and claiming their right to be laid on a citizen of this State exceeding fifty admission, and therefore the precedent now to be dollars, unless assessed by a jury, and which de-established, was of very considerable importance. clared that no article manufactured of the produce of the Territory should be subject to taxation, and that respecting the navigation of the Mississippiall seemed to clash with some of the stipulations in the ordinance and with the Constitutional rights of Congress; and though there could be no doubt that the ordinance and the Constitution of the United States were paramount to the Constitution of Tennessee, yet the articles in the latter which

Mr. HARPER was of opinion, that this was one of those subjects on which the House should not exercise too rigid a scrut ny. The question was, whether or not the Territory Southwest of the river Ohio should be admitted into the Union as a State. The people of that country, as appeared from the papers before the Committee, now wish to relinquish their Territorial Government, and become a part of the Union. He believed, that

Admission of Tennessee.

in all questions relative to the formation of Gov-nience result from this admission to the other ernments, the wish of the people ought to be grati- parts of the Union, there was reason, he thought, fied. He believed, that whenever it should ap- why that inconvenience should be submitted to, pear to be the wish of the United States, or of rather than irritate the people of this Territory, any considerable portion of them, to be governed by rejecting their application under the present in such or such a manner, their inclination should circumstances; but he saw no such inconvenience; be attended to. Upon this principle, he should to admit them into the Union, he thought, would always be favorably inclined towards any propo- add to its strength and resources; would increase sition whose object was the division of States, or the public happiness and prosperity. He would, to erect new States, as the people themselves, who therefore, advise that the State of Tennessee. were to be affected by such measures, might ap- should be acknowledged as a member of the pear to desire. For, if they were not really bene- Union, and that a law should be passed for taking fited by the change, they would, at least, think a census of its inhabitants before the next session they were, and their inclinations should be con- of Congress, so as to ascertain the number of sulted as well as their interests, where it could be members to which it would be entitled in that done without injury to the public. House.