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MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

States, was all supererogation; it resulting, from the instrument of Confederation, that Treaties made by Congress conformably to it, were superior to the laws of the States." And he cited the opinions in writing of many eminent lawyers in the various States, of an honorable gentleman from Virginia, [Mr. MONROE,] who now holds a very high post under the Government, of a gen-nation, within our ports, and in the body of our tleman equally respectable and distinguished from Pennsylvania, and of a very eminent lawyer fron. New York, to prove that in all the States the Treaty was considered as repealing all laws which stood opposed to it. He cited also the acts and decisions of Courts to the same point; all of which conclusively established the fact that the Treaty of Peace had actually repealed the laws of the States wherever they came into opposition.

And yet, Mr. H. said, he doubted how far this principle was a just one. The authorities in support of it were extremely strong, and certainly would not be easily set aside; but yet he doubted. The honorable member from Pennsylvania, in his enumeration of instances in which the Treaty of Peace had repealed the laws of the States, had forgotten or overlooked the most important one; that by which prosecutions were prevented for acts done in the war. The sixth article provides, "that there shall be no future confiscations made, nor any prosecution commenced against any person or persons for or by reason of the part which he or they may have taken in the present war; and that no person shall suffer on that account, any future loss or damage, either in his person, liberty, or property; and that those who may lie in confinement on such charges, at the time of the ratification of the Treaty in America, shall be immediately set at liberty, and the prosecution so commenced be discontinued." There were, he said, in all the States, laws subjecting persons to penalties of the highest nature for the part they had taken in the war. All these laws were instantly repealed by the Treaty, and all persons prosecuted under them immediately discharged. In the State to which he belonged there was an act called the Sedition Act, which made it treason to take up arms in behalf of the enemy. Under this act, above thirty persons were under prosecution in one Court, when the Treaty was promulgated, and they were all immediately discharged. Here the Treaty had repealed laws; had arrested their progress in their most essential and important operation, the punishment of offences.

This, he said, was not the last nor the strongest instance. The Consular Convention with France was more recent, and, if possible, more conclusive. The 29th article of the Treaty of Commerce with France had stipulated that a convention should be made relative to consuls. This convention was negotiated under the Confederation, but concluded and ratified under the present Government. It was promulgated by the PRESIDENT, in a Proclamation not only of the same tenor, but in the same words, in which the late Treaties had been announced. This convention invades the laws and the sovereignty of the country in many

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essential attributes. It establishes, by one article, a jurisdiction within our country, independent of our Courts; it, by another, secures the person of the consul from arrests, military duty, personal taxes, and personal service, and their papers from attachment. By a third, it gives them complete and exclusive jurisdiction over the vessels of their countries. By a fourth, they are enabled to arrest persons in the country, under certain circumstances, confine them, and finally send them out of the country; and the twelfth article expressly takes away the jurisdiction of our Courts in enforcing the payment of seamen's wages, and transfers it to the consuls. Yet this convention, thus contravening so many laws, thus interfering with our sovereignty in so many particulars, went into complete effect, and continues so, without any law of a State or the United States to repeal those which stood in its way. It operated a repeal without the assistance of the Legislature. And yet he had doubt, he said, about the soundness of this doctrine, that a Treaty can repeal laws. These doubts, however, would not prevail, this doctrine recognised by all our Courts of Justice, constantly and at all times acted upon by our Government, defended by our ablest statesmen and lawyers, our most distinguished patriots, would not be set aside without much more forcible reasons than those advanced against it by the honorable member from Pennsylvania.

The result, he said, of the ideas which he had submitted to the Committee, if they were just, was that the Treaty-making and Legislative powers were entirely distinct and independent. That they moved in different orbits, where each was supreme and uncontrolled, except by its own nature and the Constitution. That the PRESIDENT and Senate under the Treaty-making power could make all sorts of compacts. That Congress, under the Legislative power, could make all laws. That these compacts, however, could never operate as laws, could never produce a Legislative effect, any more than a law could produce the effect of a Treaty. That the Treaty-making power therefore never could invade the Legislative, never could interfere with, or be restricted by it. That Treaties when made and complete, as such, were no more than Executory compacts, depending for their execution upon the aid of the Legislature, in giving which aid it must, from the nature of things, be a free agent. Herein, he said, consisted the real security against the abuse of the Treaty-making power; that it could never act without Legislative aid. While that House hold the purse-strings of the people, while no Treaty could produce its effects without a law, and that the concurrence of that House was necessary in passing the law, there could be no real danger. Great, indeed, was the responsibility which those must take on themselves who should refuse in that House to execute a Treaty. Weighty, indeed, must be the reasons which could induce the House to risk all the consequences which must be expected to result from such a refusal. Few, he believed, would be found hardy enough

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to risk them in ordinary, cases. In some cases they must be risked, and to decide what those cases are, is an object of the soundest discretion. The subject, he said, was capable of being placed in many other interesting points of view, which the late hour of the day and the great length of the discussion then rendered improper. Some things had been said which he was sorry to hear; which tended not to enlighten, but to irritate. He would not now remark on them, because he wished and hoped that they might be forgotten, that they might pass into oblivion, and leave the field open for truth and good sense. All, he hoped, would inquire with care, and act for the public good, from the best of their judgment. In that case, their conclusions would not be far wrong; and if they should, he hoped and trusted, that there was strength in the Constitution to correct the error.

Mr. H. having sat down, the question was taken upon Mr. LIVINGSTON's resolution, which is in the words following:

"Resolved, That the President of the United States be requested to lay before this House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, communicated by his Message of the first of March, together with the correspondence and other documents relative to the said Treaty; excepting such of said papers as any existing negotiation may render improper to be disclosed."

The division on this resolution, in Committee of the Whole, was-for the resolution 61, against it 38-majority 23.

The resolution was then taken up in the House, and the yeas and nays being called upon it, were taken, and stood yeas 62, nays 37, as follows:

[MARCH, 1796.

George Thatcher, Richard Thomas, Mark Thompson,
Uriah Tracy, John E. Van Allen, Peleg Wadsworth,
John Williams.

RECAPITULATION.-Yeas 62, nays 37, absent 5104-the Speaker 1-whole number of Representatives 105.

Whole, voted against the resolution.
Mr. DAYTON, the Speaker, in Committee of the

MARCH 25.-The committee (Messrs. LIVINGSTON and GALLATIN) appointed to present the resolution agreed to yesterday to the PRESIDENT, reported. that the PRESIDENT answered, that he would take the resolution into consideration.

MARCH 30.-The following Message was re

ceived from the PRESIDENT in answer to the resolution of the House :

Gentlemen of the House of Representatives :

With the utmost attention I have considered your resolution of the 24th instant, requesting me to lay before your House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, together with the correspondence and other documents relative to that Treaty, excepting such of the said papers as any existing negotiation may render improper to be disclosed.

In deliberating upon this subject, it was impossible for me to lose sight of the principle which some have avowed in its discussion, or to avoid extending my views to the consequences which must flow from the admission of that principle.

I trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress as a right; and, with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof, so far as the trust delegated to me by the people of the United States, and my sense of the obligation it imposes, to "preserve, protect, and defend the Constitution," will permit.

YEAS.-Theodorus Bailey, David Bard, Abraham Baldwin, Lemuel Benton, Thomas Blount Richard Brent, Nathan Bryan, Dempsey Burges, Samue' J. Cabell, Gabriel Christie, Thomas Claiborne, John Clopton, Isaac Coles, Henry Dearborn, George Dent, Gabriel Duvall, Samuel Earle, William Findley, Jesse Frank- The nature of foreign negotiations requires caution; lin, Albert Gallatin, William B. Giles, James Gillespie, and their success must often depend on secrecy; and even, Andrew Gregg, Christopher Greenup, Wm. B. Grove, when brought to a conclusion, a full disclosure of all the Wade Hampton, George Hancock, Carter B, Harrison, measures, demands, or eventual concessions which may John Hathorn, Jonathan N. Havens, John Heath, James have been proposed or contemplated would be extremeHolland, George Jackson Aaron Kitchell, Edward Liv-ly impolitic: for this might have a pernicious influence ingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison John Milledge, Andrew Moore, Frederick A. Muhlenberg, Anthony New, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, John Patton, Francis Preston, John Richards, Robt. Rutherford, John S. Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn.

NAYS.-Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Joshua Coit, Wm. Cooper, Abiel Foster, Dwight Foster, Nathaniel Freeman, jr., Ezekiel Gilbert, Nicholas Gilman, Henry Glen, Benjamin Goodhue, Chauncey Goodrich, Rover Griswold, Robert Goodloe Harper, Thomas Hartley, James Hillhouse, Wm. Hindman, John Wilkes Kittera, Samuel Lyman, Francis Malbone, Wm. Vans Murray, John Reed, Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, William Smith, Zephaniah Swift,

on future negotiations; or produce immediate inconveniences, perhaps danger and mischief, in relation to other Powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making Treaties in the President with the advice and consent of the Senate; the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign Power, would be to establish a dangerous precedent.

It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed. I repeat, that I have no disposition to withhold any information which the duty of my station will permit, or the public good shall require, to be disclosed;

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and, in fact, all the papers affecting the negotiation with Great Britain were laid before the Senate, when the Treaty itself was communicated for their consideration and advice.

The course which the debate has taken on the resolution of the House, leads to some observations on the mode of making Treaties under the Constitution of the United States.

Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject, and from the first establishment of the Government to this moment, my conduct has exemplified that opinion, that the power of making Treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every Treaty so made, and promulgated, thenceforward becomes the law of the land. It is thus that the Treaty-making power has been understood by foreign nations, and in all the Treaties made with them, we have declared, and they have believed, that when ratified by the President, with the advice and consent of the Senate, they become obligatory. In this construction of the Constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared to my knowledge that this construction was not the true one. Nay, they have more than acquiesced; for until now, without controverting the obligation of such Treaties, they have made all the requisite provisions for carrying them into effect.

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ent departments should be preserved—a just regard to
the Constitution and to the duty of my office, under all
the circumstances of this case, forbid a compliance with
your request.
G. WASHINGTON.

UNITED STATES, March 30, 1796.
MARCH 31.-Mr. BLOUNT moved that the Mes-
sage
be referred to a Committee of the Whole on
the state of the Union.

red to a Committee of the Whole simply.
Mr. GILES was of opinion it had better be refer-

ence.

Mr. SEDGWICK saw no reason for such a referHe wished gentlemen would point out the object of the motion.

Mr. THATCHER saw no good to be obtained by referring it. The House had requested the PRESIDENT to lay certain papers before them; the PRESIDENT answers, that he has none for them. Why a reference? The House asked a question; the PRESIDENT answered in the negative-for what purpose refer the answer? what would be gained by it?

Mr. BLOUNT observed, that the PRESIDENT'S Message stands upon the Journals of the House; he wished, also, that the House should state upon their Journals the reasons which influenced them to make the request. Perhaps, also, he said, a consideration of the Message might lead to some further measure proper to be adopted. He was indifferent whether it was referred to a Committee of the Whole on the State of the Union, or a Committee of the Whole, simply.

There is also reason to believe that this construction agrees with the opinions entertained by the State Conventions, when they were deliberating on the ConstituMr. NICHOLAS remarked that it was prejudging tion, especially by those who objected to it, because the question to say that nothing could arise out there was not required in Commercial Treaties the con- of a consideration of the Message. The present sent of two-thirds of the whole number of the members of the Senate, instead of two-thirds of the Senators pre-is a crisis important in the affairs of the country, sent, and because, in Treaties respecting Territorial and independently of the Treaty. If the Message was certain other rights and claims, the concurrence of three- a proper subject of discussion, it was proper to fourths of the whole number of the members of both refer it to a Committee of the Whole. He did Houses respectively, was not made necessary. not think a reference to the Committee of the Whole on the state of the Union proper; because the Message points to a subject differing from that referred to that Com.nittee. The investigation at any rate could produce nothing wrong.

It is a fact, declared by the General Convention, and universally understood, that the Constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known that, under this influence, the smaller States were admitted to an equal representation in the Senate, with the larger States; and that this branch of the Government was invested with great powers; for, on the equal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially to depend.

If other proofs than these, and the plain letter of the Constitution itself, be necessary to ascertain the point under consideration, they may be found in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made, "that no Treaty should be binding on the United States which was not ratified by a law," and that the proposition was explicitly rejected.

As, therefore, it is perfectly clear to my understanding, that the assent of the House of Representatives is not necessary to the validity of a Treaty; as the Treaty with Great Britain exhibits in itself all the objects requiring Legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the Government, that the boundaries fixed by the Constitution between the differ

Mr. GILES said, that the member from North Carolina [Mr. BLOUNT] had explained the object he had in view by a reference. He preferred a reference to a Committee of the Whole independently; because the Message itself would furnish matter enough for consideration by itself. He should object to its being referred to the Committee of the Whole, who are to take into consideration the British Treaty; because he never would consent to act upon that subject till the papers deemed material to the investigation were laid Committee of the Whole, generally, would be He hoped the reference to a upon the table. agreed to. It certainly would be proper for the House to state their reasons for the call. This call had given rise to a great Constitutional question; the PRESIDENT had stated the reasons of his opinion; if the House were not convinced by them (and he owned that, for one, he was not) then it would be proper that they should present to the public their reasons for differing with him.

Mr. THATCHER argued, that the reasons of the

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House were contained in the speeches of members in favor of the motion; the papers had been filled with them, and a pamphlet was going to be published containing them all. If this was not sufficient, the gentlemen had better direct the pamphlet to be copied on the Journals.

[MARCH, 1796.

an end to the correspondence on this subject. The difference of sentiment between the two branches is not sufficient reason for converting the Journals of the House into a volume of debates. If the majority are to place their reasons, the minority cannot be denied the same indulgence; then for a rejoinder, rebutters, surrebutHouse, in a case analogous, a rule of conduct for the present case may be drawn. When a bill is sent to the PRESIDENT, if he dislikes it, he negatives and sends it to the House with his reasons. Those reasons are put on the Journals, as directed by the Constitution; but it contains nothing to direct or authorize the majority to register their reasons, and thus to enter into a controversy. The returned bill is put to vote, and if two-thirds of each House agree to it, it passes; if not, it falls to the ground, but no reasons are entered on the part of the House.

Mr. WILLIAMS Considered this a new question, and wished for time to consider. The PRESI-ters, without end. From the practice of the DENT's Message is only an answer to a request of the House. It does not call for anything to be done, then why a reference? Such a reference would be unprecedented. Entering the reasons of the House on the Journals could produce no good. The House could not call for the papers more than they had done. He reminded the House that three weeks had already been spent in agreeing to the call; if they agreed to the present motion, they would spend as much more in agreeing to the reasons. The PRESIDENT, in his Message, had mentioned the proceedings of the grand Convention; this was a new topic to him not started in debate; when the Treaty is before the House, perhaps they might wish to have the Message before them on that ground. He should vote for the reference if gentlemen could assign (what they had not yet done) a proper motive for it.

Mr. GALLATIN said he did not expect the motion for a reference would have met with any opposition. Some members are of opinion, that the Message should be passed over in silence; others had resolved to ground some act upon it. There exists a difference, then, on this first point. The natural course is, then, a reference to a Committee of the Whole, to determine whether the House would act further on the business.

Mr. SEDGWICK urged that the reasons of the majority would make a large book. Were the Committee of the Whole to turn authors and In Committee of the Whole a discussion could write a dissertation on part of the Constitution? be had concerning the propriety of acting further The people did not send their Representatives on the Message. When the House made the here for any such purpose, and he hoped it would call for papers, they did not give their reasons in not be persisted in. If the reasons of the House the resolution; it was but a bare request. The were to be drafted, he ventured to predict, that PRESIDENT decided he could not comply with it. they would reach the end of their political career If he had stopped here, perhaps there might be before the discussion that must necessarily arise grounds for ending the correspondence here; but upon them, would be brought to a close. Šuch a he was not satisfied with this, but has entered into measure would be unprecedented, and lead to a his motives for refusing. Indeed, he had gone great waste of time, and continually defeat the further; he had adverted to the debates had in real objects of their mission. The session had the House. He may be mistaken as to the mobeen long enough already, and it must be length-tives he ascribes to the House. In this delicate ened to accomplish the necessary business of it. If the gentlemen would write books, he was confident every body would buy them; but he could not see the propriety of the present motion.

Mr. BLOUNT observed, that the PRESIDENT refers, in his Message, to the debate in the House, and insinuates that the House contend for a right not given them by the Constitution. This was the first instance of any importance of a difference between the House of Representatives and the Executive respecting a great Constitutional point; it was then proper to make such a disposal of the Message as to enable the House to state their reasons in support of their opinion, that the people may be rightly informed, that they may see the House is attempting no encroachment.

Mr. HEATH hoped the Message would not be passed over in silence. The PRESIDENT surely is not infallible. A very important Constitutional question is involved; he hoped the reference would be agreed to.

Mr. SITGREAVES was against the motion. The House have made a demand on the PRESIDENT; the PRESIDENT refused it; this must naturally put

situation it is certainly right to notice the Message, and to explain the real motives of the House, in support of the motion. If it is a novelty to reply to an Answer of the PRESIDENT's, it was equally a novelty, also, in making an Answer to notice a debate in support of a resolution. It is necessary to refer the Message to a Committee of the Whole, to determine how to act. He declared his mind was not made up upon this point, and therefore he wished it referred to a Committee of the Whole. Not, however, to the Committee on the state of the Union, because there exists no connexion with the subject referred to that Committee. Referring to a Committee of the Whole is deciding nothing, but only determining to examine; it could not decide on the propriety of acting.

Mr. COOPER said, that the further the gentlemen traveled a wrong road, the further they would get out of the true course, and the more difficult it would be to return.

Mr. HARPER observed, that this was not the first attempt to get the House to do something, to commit them to do something further. A motion

MARCH, 1796.]

Treaty with Great Britain.

[H. of R.

is now made to refer the Message to a Commit-ence, in order, that if the reasons urged by the tee of the Whole, and the House are told, that if PRESIDENT are such as to convince this House the motion be carried, it is nothing, it is deciding that he is right as to the Constitutional question, nothing, but will only lead to an inquiry whether that they may have an opportunity to acknowthe House ought to act. He insisted that such a ledge it, that it may be so known and understood reference would in fact be determining that they abroad, inasmuch as the contrary opinion has would act, and then, in Committee, they would been promulgated; and again, I wish the referdetermine how, and in that Committee, he saidence, that this House may, with respect and calm they would be asked, why did the House resolve deliberation, consider the PRESIDENT's Message, itself into a Committee of the Whole if not to and the reasons on which his refusal to send the act? So, when the Indian Treaty was ratified, a papers is grounded, that if those reasons are not motion was made to request the PRESIDENT to such as to convince or change the opinion of this lay it before the House. When it was laid before House, they, in that case, may have an opportuthem, it was then contended that the House had nity so to express themselves, and to introduce a right to interfere in the Treaty, or why ask for resolutions to that effect, that the opinion of this it? It could not be supposed, that gentlemen of House, on this great Constitutional question, after any understanding could be imposed upon by the receipt and consideration of the PRESIDENT'S such a flimsy sophistry. It was now the proper Message, may be fully known, clearly understood, time, and the House the proper place, he con- and stamped on your Journals. I think this a tended, to settle the principle whether the House necessary measure, inasmuch as sundry Treaties would sanction any further proceedings on the lately negotiated are now before this House, and Message. What reason could be adduced for act- by a declaratory resolution, as before stated, this ing? It is said that the PRESIDENT has not only House may save the Constitutional principle, and refused the papers, but given his reasons for the feel themselves at perfect liberty to pass the necesrefusal, and that his reference to the debate, and sary laws to carry these Treaties into complete the statement he made about the motives of the effect, without conveying the implication, that House, might be found incorrect; that the PRESI- they think they are bound so to do, and have not DENT may have attributed to the majority mo- a Constitutional right to reject and refuse, when tives they were not willing to avow. The moeven they shall judge the general prosperity of tives had been avowed by the gentleman who led the Union, and the interest of their constituents, the business from Pennsylvania. may be promoted by that refusal.

Mr. HARPER was called to order. He concluded by declaring that he would vote against the reference.

Mr. VARNUM observed, that a great Constitutional question was to be decided; two branches of the Government differed, and they had joined issue. The PRESIDENT had given the reasons of his opinion; it was right, also, that the people should know the sense of the House. Shall the House take no further measures on the subject, and receive the Answer of the PRESIDENT as obligatory with regard to the question? He believed every member of the House has, as well as the PRESIDENT, the right to avow his principles, and to judge of the import of the different parts of the Constitution. The House he conceived under an obligation to consider the question: if they found upon consideration reason to recede from their opinions, he hoped they would. He wished the subject examined with temper and candor.

Mr. KITTERA chiefly dwelt on the length of time, which, if the motion was agreed to, would be consumed in the business. He also touched on the impropriety of entering into a disquisition on the merits of this question on the Journals.

Mr. GILES said, he had not expected the subject would have been treated with ridicule, and that members in reply should advise others to go and write pamphlets. The motives of a branch of Government must necessarily differ from the motives of individuals expressed in their speeches. A majority of the House, when their sentiments are collected, speak the sense of the House. He adverted to the practice of the House when the PRESIDENT returns a bill, which had been mentioned by the opposers of the motion, and observed, that in cases of that kind the Message of the PRESIDENT was acted upon. He observed, on the importance of the subject, and insisted on the propriety of the House expressing their reasons for their vote. They owe it to themselves, to the United States, to the whole world, to exhibit their reasons for what the PRESIDENT has declared to be an unconstitutional call. For this purpose, the Message should be referred to a Committee of the Whole, where a proper motion would be brought forward, and could be freely discussed. If it had been proposed to refer the Message to a select committee, to place the business into a few hands, there might have been an objection, but a reference to a Committee of the Whole he considered quite unexceptionable.

Mr. CRABB.-Mr. Speaker, I hope the Message received from the PRESIDENT, in answer to the resolution of this House, calling for certain papers Mr. N. SMITH said the present was a most sinrelative to the British Treaty, will be referred to gular motion; and, after noticing the several reaa Committee of the Whole House. My reasons sons which had been given for the measure, for this wish are, because the PRESIDENT has re- thought none of them had any weight. He said fused the papers on Constitutional principles, and the referring of the Message could only have one has thought proper to go into a detail of the rea- effect; it would engage three weeks more of their sons which led to a formation of his opinion, time; and yet, gentlemen who had been very therefore I apprehend it proper to make the refer-economical with respect to time, on the late great

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