Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.). United States. Congress
believe, notwithstanding the public impression on this subject against the petitioners, that the money could be raised in half an hour in any town in the United States. I believe it might be raised in that time in the city of Washington. It is not a question of the amount of money wanted; it is, whether the Government of the United States shall lend its countenance to persons situated as these unfortunate people are? Sir, had we at that time been at war with Spain, as Great Britain, something might be said in favor of these persons. But we were not at war with Spain, and these men knew it; and I believe they knew at least as well as I know, that when a man is recruited for public service, as they say they thought to be their case, he is immediately taken before a justice of the peace and sworn. This part of the ceremony, however, is not stated to have taken place. To be sure, sir, the gentleman from New York (Mr. Emott) said, I believe, every thing that could be said in favor of those unfortunate people, and really almost convinced me that we ought to make this interference; but unfortunately for him and for his cause, other advocates rose up in its favor and placed the subject in a situation not only as respects the majority of this House, but as respects that Government with whom intercession is to be made, which will completely foreclose any attempt at relieving the sufferers. It is not possible that the majority of this House, or that the Spanish Government, can be affected in any other manner than with disgust and indignation at such stuff. The gentleman from New York told us that these were ardent young men, who were anxious to go to Caraccas for the purpose, I think, of correcting the despotism which existed in that country; or otherwise, political Quixotes. This, I take it, will operate little in their favor with the Spanish Government, however it may in ours. I confess I feel very little sympathy for those who, overlooking their own country, and the abuses in their own Government, go in search of political adversaries abroad – go a tilting against political despotisms for the relief, I suppose, of distressed damsels compelled to live under them.
The question was now taken, and the votes being affirmative 62, negative 61, the Speaker voted in the negative – the votes then being equal, the question was lost.
Monday, June 19
The House proceeded to consider the resolution submitted by Mr. Macon, on the sixteenth instant, in the words following, to wit:
"Resolved, That so much of the message of the President of the United States of the seventh of March, one thousand eight hundred and eight, as relates to the batture in the suburbs of St. Mary's, adjoining New Orleans, and the documents accompanying it, together with the petitions of Edward Livingston, and the petitions of the citizens of New Orleans on the same subject, and the documents which accompanied the same, be referred to the Attorney-General of the United States, and that he be instructed to receive and collect such other testimony as may be necessary to ascertain the title of the United States to the before-mentioned batture, and that he be directed to report to this House, at the next session of Congress, his opinion as to the validity of the claim of the United States to the said batture."
Mr. Burwell thought that this was not the proper course to pursue; but that the course recommended at the last session was the one, viz: to give the petitioners the right of appeal from the decision of the Orleans court to the Supreme Court, or to give the United States the same right, should the decision be against them. He could see no advantage in the procrastination now proposed, nor any injury to the United States or the city of New Orleans, in the course which he advocated. He doubted, although the letter of the law of 1807 might cover this case, whether it was ever intended that that law should operate as this had done. My intention, said he, in voting for it, was that it should apply exclusively to the Western lands, commonly called the Yazoo lands, and such other lands as were occupied by hundreds who might be formidable from their numbers. To undertake jurisdiction on questions of property is taking upon ourselves the functions of another department of the Judiciary. The case involves important points of law – and let me ask, whether the gentlemen in this House are so well read in law as to be able to decide such an important point as this? It does appear to me that on all the questions of private property arising in the United States, where the question of right is not to be brought before this House, we ought to consult the convenience of the parties by promoting dispatch. On the question whether this property belong to the United States or to the petitioners I am completely ignorant. Nor would I have it inferred that I believe the petitioner to have a right to the property; I take it that the claim of the United States must be good, or the inhabitants of Orleans would not be so zealous in the support of it.
Mr. Poydras asked for the reading of a letter which he had received from the Governor of Orleans Territory, which was accordingly read. The letter states, that if it were possible that the committee to whom Mr. Livingston's claim was referred could now visit New Orleans, they would be convinced that the batture, now covered with water, was in fact the bed of the river, and, therefore, could not be private property. Mr. P. stated the history of this piece of alluvion at some length, and the circumstances under which it had always been deemed public property.
Mr. Sheffey said that before passing this resolution, gentlemen ought to ascertain what the Attorney-General could do in this case. He could not compel the attendance of witnesses, or collect testimony of circumstances which occurred a hundred years ago; and unless he could do this, it was impossible he could examine the title, for testimony as to facts was essential to enable him to form a correct opinion. What influence could the opinion of the Attorney-General have? Was the right of the citizen to fall prostrate before such an ex parte opinion or statement as that might be? If it was not to have influence, why thus evade a decision on the prayer of the petitioner? If it was to have any influence, it must be a pernicious one, because founded on ex parte testimony. Would the House go into the merits of the case on this opinion, when obtained without affording an opportunity to the party interested to prove that the law was not correctly expounded nor the facts correctly stated? Surely not. If they did not, if they heard opinions on both sides, they converted this House into a judiciary tribunal. Was this body calculated for that branch of Government? No; this, Mr. S. said, is a Government of departments, each of which ought to be kept separate. What, sir! is this a question of right between the United States and an individual, and we are about to take it into our own hands, to wrest it from the constitutional authority, and decide it ourselves? I hope we shall not; and, therefore, I am against this proposition. What does the Attorney-General state in his report? Aware of the impropriety of his deciding, he tells you – what? That the usual course, where the rights of the United States have been involved, has been to appoint commissioners to hear and decide. Here the Attorney-General tells you it is not proper for him to decide. And I should never wish to see the case in which the Attorney-General's opinion is to give authority for dispossessing an individual of his property; for if it can be done in one case it may be in every case. Any individual may be driven from his property by military force, and then his title be decided by an ill-shapen, one-sided statement and opinion of the Attorney-General. Against such a decision I do protest. Is it because you have power on your side, sir, that you will not submit to a judicial decision of this question? If there be a controversy about a right, there ought to be a judicial decision.
I, sir, have been unable to see how an individual having property, in which he was put in possession in 1804 or '5 by a judicial decision, could be disposed of it by the act of 1807, the operation of which was limited to acts done hereafter, that is, after the passing of that act in 1807. That law too speaks of "lands ceded to the United States." Was the batture ceded to the United States? I say not, because it was private property before the United States possessed the sovereignty of the country. By the treaty of 1803 with the Government of the United States, the rights and property of the inhabitants of Louisiana was secured to them. What then is the inference from this state of the case? That the United States got possession illegally, in defiance of judicial authority. I am sorry to see that the judicial authority has been set at defiance, and the Presidential mandate carried into effect at the point of the bayonet, right or wrong. This was the case. Those who were put in possession were ousted by military force. Let me not be understood as throwing odium on the Executive; far from it. I believe the Executive acted conscientiously, but upon an ex parte statement. The President was never told that the case had been judicially investigated. Those facts were taken for granted, on the other hand, which did not exist, and those which formed the foundation of the true merits of the case, were withheld.
Mr.