Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.). United States. Congress
been proposed, send them out, and you have war directly? If we are to have war, I should rather have it openly, and let the nation know that we mean it. I am for the embargo yet. I am told flour is from thirty to fifty dollars a barrel in the West Indies; I am also told that wheat is fourteen shillings sterling a bushel in England. This must have an effect, if adhered to, through Spain and Portugal. France, if she carries her armies into that country, cannot support them. Nor can Spain support her own armies, and at the same time those Great Britain sends there; for where war is waged, almost all agriculture is destroyed; and it only requires firmness in us to force them both by this measure to acknowledge our rights. If I am mistaken in my opinion, I wish that measure to be adopted which may best maintain our rights and independence.
It is not the embargo which causes the pressure on the people. No, sir, it is the orders and decrees of England and France. Take a license from England, and you may trade, but on no other terms. Let an officer of the British fleet visit your vessel, and France will condemn it. These are the things which destroy commerce. The country in which I live feels the measure as much as any; there are agriculturists, and their crops remain unsold; and if they will do without the principal, and resist imposition by withholding their produce, those who make a profit by the freight of our produce, may afford to lose that profit. Can any man tell what would be the consequence of war, in these times? In common war some regard is had to the laws of nations by belligerents, and they fight each other. In the present war the belligerents disregard the laws of nations, and fight every one but one another.
Mr. Quincy said he wished the last resolution to be separated from the first, as the House would be committed by its adoption. Not that he wished to avoid a discussion of that subject, for he wished for nothing so much as that the House would permit them to go into a discussion of the subject in Committee of the Whole. [Mr. Macon consented that the last resolution should lie on the table.] Mr. Q. said he wished to press a discussion on the subject of the embargo; for such was the state of public opinion in the Northern part of the Union, that but one general sentiment prevailed, that the embargo would be immediately raised. Instead of postponing the subject from day to day, he only wished it to come before the House that gentlemen might understand one other, and put an end to the doubts that now existed.
The first and second resolutions offered by Mr. Macon were agreed to without a division. The third was ordered to lie on the table – yeas 78.
Friday, November 18
On motion of Mr. Poindexter, the House resolved itself into a Committee of the Whole, on the bill concerning Territorial Governments.
The bill having been read —
Mr. Bibb said, that if the House were now called upon for the first time to pass an ordinance for the government of the Territories of the United States, he should attach very little importance to the decision of the present question. But he considered it not now an abstract question of expediency, but as one of great moment, from the circumstances with which it was connected. He denied the right of the House to pass the bill; and if they had not the right, it was surely unnecessary to argue the question on the ground of policy. It would be recollected that the Mississippi Territory was formerly the property of the State of Georgia, and ceded by that State to the United States on certain conditions, one of which was that the ordinance for the government of the Territory Northwest of the Ohio should be the basis of the government of the Mississippi Territory.2 If this, said he, be one of the conditions of a compact between the United States and Georgia, surely the United States have no right to infringe it without the consent of Georgia; and I, as one of her Representatives, formally protest against the passage of this bill. It may be said that Georgia is very little interested in the abstract question, whether the Governor should or should not have the power of prorogation; but, if a right exists to alter one part of the ordinance without the consent of Georgia, it certainly implies a power to alter it in every part.
Mr. Poindexter said he would state the reasons for which he had introduced the bill, and which would, he hoped, insure it the sanction of the committee. I will, in the first place, said Mr. P., advert to that part of the ordinance which is proposed to be amended by the bill under consideration. In the ordinance for the government of the Northwestern Territory will be found this article: "The Governor shall have power to prorogue and dissolve the General Assembly, when, in his opinion, it shall be expedient." The bill proposes to take away this power, as being arbitrary and oppressive in the extreme, and incompatible with the Constitution of the United States. This ordinance was passed previous to the adoption of the Federal Constitution, and if it had been the subject of consideration subsequent to its adoption, this provision had never been inserted, giving to Governors of Territories a power paramount to any power possessed by the President of the United States. Take away this power and a Governor will still have left the power of negativing all acts, so that none can pass without his assent; and, being the agent of the General Government, he would give consent to no law incompatible with the interests of the United States.
It has been said that the ordinance cannot be altered without the common consent of the parties to it, and that the State of Georgia must be called upon to give its assent before the Congress can alter it. There are two parts of this ordinance; the first contains the form of government, and the second several articles of compact which are declared unalterable but with common consent. After reciting the form of government, the ordinance says:
"The following articles shall be considered as articles of compact between the original States and the people of the States in the said Territory, and forever remain unalterable, unless by common consent, to wit."
[Here follow six articles.] The ordinance declares that which follows the declaration to be unalterable, but by common consent; it follows of consequence that that which precedes the declaration is alterable. Independent of this reasoning, which cannot be refuted, at every session since we have been a Territory, there have been laws passed altering the ordinance in some shape or other. For example, the ordinance requires two judges to hold a court; and, in a variety of instances, Congress has legislated with respect to the form of government of the Territory. I had supposed that the articles of agreement between the United States and Georgia had become obsolete, with respect to the imagined necessity of the consent of Georgia to legislation on the subject of the Territory. It was urged at the last session with all the eloquence which the gentlemen from Georgia are in so great a degree possessed, and disregarded; for it was decided by both Houses that the United States had a right to rule the Territory without the consent of Georgia.
The Constitution of the United States says that Congress shall "have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Can an agreement arising from the exercise of this power, supersede the right of exercising the power expressly delegated by the constitution itself? Certainly not.
On the ground of policy I presume that there is no gentleman who will contend that the power of which I wish to deprive the Governors, ought to be retained. The gentleman from Georgia himself says, that if he were about to frame an original ordinance, he would not think of such a power. As the opinion of Judge Tucker has been referred to on one subject, I will refer to it on the subject of prerogative. Let it be recollected, that the power to prorogue and dissolve is one of the highest prerogatives of the King of England: that it crept into the governments of his colonies, and thence into this ordinance, previous to the adoption of the constitution. It now remains for the United States to say, whether they will copy after Great Britain, and because it is a high prerogative, give the Governors of the Territories of the United States the same powers as she gives to her Territorial Governors. I trust it will be expunged.
"The title 'prerogative,' it is presumed, was annihilated in America with the Kingly Government." "This definition (of prerogative) is enough to make a citizen of the United States shudder at the recollection that he was born under a government in which such doctrines were received as catholic," &c.
This is the opinion of Judge Tucker. Is not this sufficient to induce us to take away from Governors this prerogative? Is not this feature modelled after the feature in the Government of England? Certainly; and that it is transferred from her Colonial Government,
This ordinance of the Congress of the confederation, which became the basis of all the Territorial governments, was sanctioned by the Congress of the Union at its first session, with certain provisions added to it in order to give it full effect under the constitution. The following are the terms of this enactment: —
"Whereas that the ordinance of the United States in Congress assembled, for the government of the Territory northwest of the river Ohio may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United States. Therefore, Be it enacted, &c., That in all cases in which, by the said ordinance, any information is to be given, or communication made by the Governor of the said territory to the United States in Congress assembled, or to any of their officers, it shall be the duty of the said Governor to give such information, and to make such communication to the President of the United States; and the President shall nominate, and by and with the consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him; and in all cases where the United States in Congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same power of revocation and removal. Sec. 2. – And be it further enacted, That in case of the death, removal, resignation, or necessary absence of the Governor of the said Territory, the secretary thereof shall be, and he is hereby, authorized and required to execute all the powers, and perform all the duties of the Governor, during the vacancy occasioned by the removal, resignation, or necessary absence of said Governor."
This act of Congress, passed to give full effect to this ordinance by adapting its working to the new Federal Constitution, was among the earliest acts of the Federal Congress, being number eight in the list of acts passed at the first session of the first Congress; and classes with the acts necessary to the working of the new government. As such it was modified; and as such preserved and applied to successive Territories, as governments for them were given. That ordinance is, in fact, the basis of all the Territorial governments, and is extended to each of them by name, with such modifications as each one required; and its benefits secured in their deeds of territorial cession by Georgia and North Carolina. Thus, the fifth clause in the first article of the Georgia deed of cession, dated April 24th, 1802, stipulates: "That the Territory thus ceded shall form a State, and be admitted as such into the Union, as soon as it shall contain 60,000 free inhabitants, or at an earlier period, if Congress shall think it expedient, on the same conditions and restrictions, with the same privileges, and in the same manner, as is provided in the ordinance of Congress of the 13th day of July, 1787, for the government of the Western Territory of the United States; which ordinance shall, in all its parts, extend to the Mississippi Territory contained in the present act of cession, that article only excepted which forbids slavery." The deed of cession from North Carolina, for the Territory since forming the State of Tennessee, and dated December – , 1789, is equally express in claiming the benefits of this ordinance; so that, made before the constitution, it has been equally sanctioned by Congress and by States since. Virginia sanctioned it immediately after its enactment, and before the commencement of the present Federal Government, to wit, on the 30th day of December, 1788. The ordinance being thus anterior to the constitution, was not formed under it, but under the authority of owners – sovereign owners – exercising the right of taking care of their own property, subject only to the conditions and limitations which accompanied its acquisition. And thus the Territories have been constantly governed independently of the constitution, and incompatibly with it, and by a statute made before it, and merely extended as a pre-existing law to each Territory as it came into existence.