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[FER. 24, 1831.
ties are ratified by the Senate, if they are armistices only * Because, though they have nothing to do with the President’s manner of making war, or interrupting hostilities, he can make no treaty without their assent—because, in fine, a treaty of peace (no offence to the certainty of diplomatic law) is a treaty, and not an armistice. Another certain doctrine of this certain law which is to destroy my argument, is this: That, in a state of war, every individual of one belligerent nation is in hostility to every individual of the other; that, in this situation of things, no minister of one nation could be sent to another; that his personal safety would be endangered from the first man he met; and it never yet was known, says the Senator, very emphatically, that a minister was sent by a Power at war to its enemy, flagrante bello, and therefore he concludes that po to treat of peace are not ministers. If by this is meant ministers resident, no one ever contended that they were; but they are what all the world calls them, ministers plenipotentiary, and it is conceded that they may be sent by the President alone, and that they have not been, and need not be, nominated to the Senate before they are sent. As to the public law, on this subject, having confessed my ignorance, I must leave it to the Senate to decide whether this state of universal and individual warfare is acknowledged by the modern law of civilized nations, and whether, if even at times when it raged with the greatest ferocity, there were not safe conducts known which would enable plenipotentiaries to deliberate in an enemy’s capital as securely as they could in a neutral town. Leaving these points, as I said, to be determined by those better qualified to decide them, I must take the liberty, however, to doubt the correctness of the asserted fact that is adduced to support them. I have heard, strange as it may appear to the gentleman, I have heard of ministers sent to treat of peace in an enemy’s country during the existence of the war. I have known some, and history is full of others. The war of our revolution, between England and France, was put an end to by a British minister, in the capital of the French kingdom. The peace of 1801, between the same Powers, was concluded at Amiens, and Amiens is in France. One treaty of peace with Algiers was concluded in that city, the capital of our enemy, by a commissioner appointed with exactly the same formalities that Rhind, Ofiley, and Biddle were; and the other by an Algerine minister on board of one of our ships of war, representing the territory of the United States; in short, so many are exceptions to the rule, if rule it may be called, that, if it is one, it has been most wofully disregarded in practice. But the volume of treaties with the Barbary Powers; the long list of plenipotentiary commissioners who have been, like Rhind, Offley, and Biddle, sent to negotiate them, and who have none of them been nominated to the Senate! What is to be done with them? They must be disposed of before we can make way for the fierce denunciation against the President. How is this to be effected? Nothing easier. Deny their existence as nations; call them hordes of barbarians, and the business is done. They are, says the gentleman, like the Indian tribes, who are now under our protection, and our tributaries. An unfortunate assimilation! for there are many honorable members of this body, who think that those tribes are independent nations, and that all stipulations with them are treaties, in the diplomatic sense of the word. The word tributary, too, brings with it degrading recollections; for it so happens that it is only a few years since these very people, to whom the title of nation is denied, were powerful enough to have exacted from us an annual tribute, and not only from us, but from all the nations whose ships navigated the Mediterranean. This way of meeting the objection seems to concede that the course which I have shown to have been pursued with respect to the Barbary Powers, was right and constitutional as regarded them; and
that if the mission now under discussion had been sent to Morocco, or Algiers, or Tunis, or Tripoli, nothing would have been said against it. It was necessary, therefore, to raise some distinction between two missions begun, continued, and ended, precisely in the same way, that should make one a crime, the other a legal and proper measure. How is this done? By showing that the same rules which govern a mission to Algiers, cannot apply to one sent to the Ottoman Porte. Because, first, the Turkish is an ancient Power; it was established, he says, before our existence as a nation. If this were the correct rule for determining whether a people were entitled to the privileges of a civilized nation, it would be rather an unfortunate scale for us to establish. But be it the true one, how is the fact as between the two Powers? The empire of Turkey was not established in Europe until the fifteenth century. Algiers was then an old Government. Soon after, it withstood the power of Charles V, and defeated the powerful army he sent to invade them. It is acknowledged in the argument, that a capture by one of their cruisers is considered by the courts of England as a change of property. They have fleets, armies, a regular revenue, an organized and permanent, though despotic Government; how, with all these attributes of sovereignty, can we call them savage hordes, with whom no regular intercourse of diplomacy can be kept up? Look, sir, into the treaties we have formed with them. All the principles which the most civilized nations have proclaimed, and which so few of them have practised on, will be found to be included in them. But the States of Barbary are not treated by the European Powers on the footing of other nations. They do not send them resident ministers. If they did not, I scarcely think this would be proof of the fact that they were not considered as part of the family of nations. One of the greatest Powers in Europe has not now, and never has had, an agent here of a higher rank than consul. Nor have we treated him with more ceremony. Does this prove that Austria and the United States do not consider each other as on a footing with other nations? But, sir, the fact is not quite correct. We have had, and now have, ministers resident with these Powers. They have only the title of consuls, but have the powers of ministers; and greater powers than are exercised by ministers in any country in Europe. They have exclusive criminal and civil jurisdiction over their countrymen.” What other difference between Algiers and Constantinople? In Algiers, they follow the law of Mahomet, so they do at Constantinople. When the Dey is in a passion, he cuts down the consul's flag staff. In Constantinople, the Sultan docs worse; he shuts up the minister in the Seven Towers. The Algerine sends no resident ministers to other Powers; neither does the Turk. They both wear turbans; shut up their wives; and have the sanic contempt for christian dogs. Why, with all these points of similitude, and none of difference, except in extent of territory and power, should there be any in conducting our intercourse with them, which will justify us in characterizing that to be a high crime, in our intercourse with the one, which towards the other is a correct course of conduct? This is a question which gentleman can answer, no doubt, with perfect satisfaction to their own minds, and, perhaps, (but of that I must be permitted to doubt,) with that of the nation.
* Martens, page 27, says: Although consu's are under the special protection of the law of nations, and may be considered in a general view as diplomatic agents of the State which rules them, yet they cannot lie c'assed as public ministers, even of the third order, because th, y are not provided wih letters of erodo ince, &c. Those, hovo, which are sent to the Barbary Powers, and to the ports of the Levant, form an exception, and are the only consuls that are accr. dited and treated as ministers, the gi Cater part of them, and especially consuls general, namel by some Power, either for sovo ral places at the sainttime, or at the head of subordinate consuls, enjoy in some particul greater prerogatives than those sent to the ports of Europe. Page 26: He classes this grade of consuls above chargé d'affaires, who are named to courts where it is not desired or permitted to send a higher grade of ministers.
Feb. 25, 1831.]
Powers of Congress to lay and collect duties.
In repelling these accusations so unexpectedly made, so vehemently urged, I must not be considered as the authorized advocate of the First Magistrate. I do not pretend to know, as other gentlemen have intimated they know, by whose counsel this measure was adopted, or whether recourse was had to any counsel but that of his own sound, unbiassed understanding. Not being myself his political adviser, I have no parental feelings of af. fection for any of his measures to mislead my judgment. By its dictates alone I shall approve or condemn. But, sir, he had advisers. Washington and the Adamses, Jef. ferson, and Madison, and Monroe, were his counsellors; and the advice of such a cabinet no Chief Magistrate need hesitate to take as his guide. Sir, I repeat, I am not the official advocate, or the political adviser, of the President; but I am, and I am proud of the title, his personal friend; and, in this capacity, I reject for him, as I know he would indignantly do for himself, the excuse that is offered for his intentions, at the expense of his understanding and independence. I was somewhat surprised to hear the distinction drawn between the measures of the President and those of what is improperly called his cabinet—a body entirely unknown to the constitution. Adopt this system of shifting responsibility, and hereafter it will be used, not for the purpose for which it now seems to be introduced—that of eulogizing certain heads of departments, and throwing the odium of imputed bad counsel upon others—but for the more dangerous purpose of shielding the First Magistrate from the responsibility which the constitution has thrown upon him, and him alone. And it seems strange that it did not occur to the honorable gentlemen who drew the distinction, that the establishment of this doctrine would be a more serious blow to the constitution, which they so earnestly and sincerely defend, than that which (if even their charges were well founded) they deprecate. Be the distinction offered for what purpose it may, the present Chief Magistrate is not the man to introduce or avail himself of it. His measures are his own; the excuse is not required nor accepted by him, nor is it made for him by his friends. On motion of Mr. FORSYTH, the Senate adjourned.
FRIn Ay, FEB nu ARY 25.
Mr. BENTON laid on the table the following resolution: Resolved, That the powers conferred on Congress by the States to lay and collect duties, and to regulate cominerce, are distinct and incontrovertible powers, aiming at different objects, and requiring different forms of legislative action; the levying power being confined to imports, and chiefly intended to raise revenue; the regulating power being directed to exports, and solely intended to procure favorable terms for the admission of the ships and products of the States. 2. That the power to lay and collect duties on imports was solicited by the founders of the present Federal Government, and granted by the States, for the express purpose of paying the public debt, and with the solemn and reiterated assurance that the duties levied for that purpose should cease the moment the debt was paid— which assurance was given in answer to objections from the States, and to quiet the apprehensions expressed by some of them, that the grant of power to Congress to raise revenue from the commerce of the States, without limitation of time or quantity, and without accountability to them for its expenditure, might render Congress independent of the States, and endanger their liberties and prosperity. 3. That the public debt will (probably) be paid off in the year 1834, and the amount of about twelve millions of dollars of revenue will then be subject to abolition, and
ought to be abolished, according to the agreement of the parties at the establishment of the present Federal Government, and in conformity to the present actual condition and interest of the States. 4. That an abolition of twelve millions of duties will be a relief to the people of from about sixteen millions of taxes, (estimating the retail merchants' advance upon the duties at one-third.) and that the said abolition may be made without, diminishing the protection due to any essential branch or pursuit of domestic industry, and with manifest advantage to most of them. 5. That, for the purpose of enabling Congress to determine with entire safety to every interest, and with full satisfaction to the public mind, what branches and pursuits of domestic industry may be entitled to protection, and ought to be guarded from the injurious effects of foreign competition, a joint committee of the Senate and House of Representatives ought to be appointed to take the examinations of practical men (producers, consumers, and importers) in all doubtful cases, and to report their evidence to the two Houses of Congress. 6. That the said committee ought to be appointed at the commencement of the next stated session. 7. That the power to regulate forcign commerce was granted to Congress by the States, for the express and sole purpose of enabling Congress to obtain and secure favorable markets abroad for the exports of the States, and favorable terms for the admission of their ships; and to effect these objects by establishing an equitable system of commercial reciprocity, discrimination, and relation, which should measure back to every foreign nation the same degree of favor, or disfavor, which itself measured out to the commerce and navigation of the United States. 8. That the power to regulate foreign commerce, although one of the first of the enumerated powers of the censtitution, and the enduring cause of its adoption, has never yet been exercised by Congress. 9. That the approaching extinction of the public debt, and consequent obligation to abolish, and advantage in abolishing, about twelve millions of annual revenue, will enable the United States to receive a large portion of her foreign commerce, say the one-half thereof, free of duty; and that the fair principles of a just reciprocity, the dictates of obvious policy, justice to the States, and the constitutional duty of the Federal Government, already too long deferred, will require this Government to demand equivalents from all nations which may wish to be admitted to a participation in the enjoyment of this great amount of free and unrestricted trade. 10. That the free importation of the following articles (among others) may be admitted into the United States without compromising the prosperity of any branch or pursuit of domestic industry, and with manifest advantage to most of them, namely: linens, silks, wines, coffee, cocoa, worsted stuff goods, several descriptions of woollens, several qualities of fine cottons, several kinds of spirits, &c. &c. 11. That the free importation of the said articles ought to be offered to all nations which shall grant equivalent advantages to the commerce and navigation of the United States, and will receive the products of their industry, namely: fish, furs, lumber, naval stores, beef, bacon, pork, grain, flour, rice, cotton, tobacco, live stock, manufactures of cotton, leather, wool, and silk, butter and cheese, soap and candles, hats, glass, and gunpowder, lead, shot, and sugar, spirits made of grain and molasses, &c. &c., or some adequate proportion thereof, either free of duty, or upon payment of moderate and reasonable duties, to be agreed upon in treaties, and to continue for a term of years, and to no other nations whatever. 12. That there is nothing in existing treaty stipulations with foreign Powers to prevent the regulation of our commerce upon the foregoing principles.
National Road in Ohio.
[FEB. 25, 1831.
13. That all commercial nations will find it to their advantage to regulate their commerce with the United States on these principles, as, in doing so, they will substitute a fair and liberal trade for a trade of vexations, oppressions, restrictions, and smuggling; will obtain provisions for subsistence, and materials for manufactures, on cheaper terms and more abundantly; will promote their own exports; will increase their revenue, by increasing consumption and diminishing smuggling; and, in refusing to do so, will draw great injury upon themselves in the loss which will ensue of several great branches of their trade with the United States.
14. That the agriculture, manufactures, commerce, and navigation of the United States would be greatly benefited by regulating foreign trade on the foregoing principles: first, by getting rid of oppressive duties upon the staple productions of the United States in foreign markets; secondly, by lowering at home the price of many articles of comfort or necessity, imported from abroad.
15. That the safest and most satisfactory mode of regulating foreign commerce on these principles would be by combining the action of the legislative and treatymaking powers, Congress fixing, by law or joint resolution, the articles on which duties may be abolished, and the Foxecutive negotiating with foreign nations for the grant of equivalents.
16. That, to be in readiness to carry this system of regulating foreign commerce into effect at the extinction of the public debt, it will be necessary for Congress to designate the articles for abolition of duty at the next stated session.
NATIONAL ROAD IN OHIO.
On motion of Mr. BURNET, the orders were postponed for the purpose of taking up the bill declaring the assent of Congress to an act of the General Assembly of the State of Ohio.
Mr. BURNET said he would occupy but a few minutes of the time of the Senate in explaining the bill. Its object, he said, was nothing more than to give the consent of Congress to an act of the state of Ohio, for the preservation and repair of so much of the national road as lies within the limits of that State. That the law to which the assent of Congress was asked, provided for the collection of a moderate toll, to be expended in repairs. It also provided for the punishment of persons detected in the perpetration of malicious mischief injurious to the road. He said that it was generally understood and believed in Ohio, that the jurisdiction of this road was exclusively vested in the United States; that the General Assembly had no power to legislate on the subject without the consent of Congress. It was well known, he remarked, that the road would soon become entirely useless, if an arrangement were not made, without delay, for the purpose of keeping it in repair; that, as the road had been constructed by Congress, at a great expense, it was unreasonable to rely on them for yearly appropriations of money from the national treasury, to keep it in a state of preservation; that the road, being once completed, ought to sistain itself without imposing a further burden on the national treasury; that this description of internal improvement could not be carried to any great extent, if every new construction, when completed, was to be fol. lowed by a new annual charge on the treasury of the nation. Such, he said, was the impression of the Legis. lature of Ohio, and on that view of the subject, and for the purposes already mentioned, they had passed the law recited in the bill under consideration. He thought it would be found, on a careful examination of the law, that its provisions were just and reasonable. The toll proposed to be charged was unusually low; much less than is commonly charged on other roads of a similar character—he
was confident that it was less than a tenth of the value of the advantage to be derived by the persons who were to pay it. He disclaimed all idea, or desire, on the part of Ohio, to derive a revenue from this source. They did not contemplate such a result, nor did they wish it. If the road could be preserved without a tax on them, or on the General Government, they would prefer to have it remain as it is now, free and unencumbered with toll gates; but, said he, that is impossible; the road cannot be preserved without constant repairs, which necessarily require a constant supply of money. That Ohio contemplated nothing more than the preservation of the road, was evident from the fact that the whole amount of money collected was to be paid into the State treasury—kept in a separate fund, and applied exclusively to the repair and preservation of the road, and that no more money was to be collected, than would be required for that purpose. Mr. B. said that care had been taken, in draughting the law, to secure the rights of the United States, as well as those of the separate States, by a provision that the mail should pass free; that all persons in the service or employ of the United States, or either of them, and all property belonging to the United States, or either of them, should be exempt from the payment of toll. Such being the character and object of the bill, he did not anticipate an objection that he believed could reasonably be urged against it. It did not, he said, affirm any principles, or profess to settle any question of right; it was a naked declaration, on the part of Congress, of their willingness that Ohio should execute the law she had passed. He was aware that some members of Congress believed that the State possessed that power already, but many others were of a difierent opinion; and it was manifest that Ohio thought differently, otherwise she would not have passed the law in question. Be this as it may, said Mr. B., I feel confident that every Senator present, whatever may be his opinion on the delicate question of internal improvement, can vote for this bill without committing himself, on any principle connected with that question, because it involves no principle of that character. It will leave the questions of constitutional power and constitutional right where they now stand, to be adjusted and settled as would be the case had this law never been thought of If, as he believed, the provisions of the bill were unobjectionable, on the score of principle, he was very certain they were calculated to secure a highly important object, as would be verified by the experiment, should the bill under consideration pass. It would prevent future applications to Congress for appropriations of money from the national treasury to repair the road. As yet no such application had been made for the part of the road within the State of Ohio, because it had not become necessary; and he would venture an assurance that such an application should not be made if Congress passed this bill. Ohio would relieve the United States from the tax and the labor of preserving her portion of the road. With the means which this law would put in her power, she would guaranty the accomplishment of the object without further trouble to the United States, and certainly without further expense to their treasury. He believed that the plan proposed by the State of Ohio was the best, if not thc o one, by which the road could be kept in repair for any length of time, as it was evident that Congress would soon become weary of making yearly appropriations for that purpose; and that whenever these appropriations should be required, there being no substitute provided, the road would go to ruin, and the money already expended would be lost to the nation. Mr. HAYNE said he was in favor of the object of the bill. He should be glad to see the principle carried out, and the United States wholly relieved from the care and preservation of this road. He thought, however, that the bill stopped short in one important particular, and that
FER. 25, 1831.] * was, the cession of the road to the State of Ohio. He should like, if it could be done, to introduce a provision into the bill providing for its cession—it was a matter of importance, in his opinion—and it would release the United States from all future legislation on the subject. Should this course be pursued, next year Virginia, Maryland, Pennsylvania, and other States interested, would make a similar application to Congress, and, their wishes once granted, the United States would be relieved from an almost continual drain on their treasury. The construction and preservation of this road was an unfortunate event for the country; the United States had been, and would be, from the necessity of things, subjected to more expense in works of this nature, than either individuals or States. Mr. H. spoke of the sums paid for the construction of the road, and the great expense required to keep it in repair. He would ask the chairman of the committee if such a provision as he had suggested could not be introduced into the bill, and thus relieve the Government from any further appropriations. Mr. BURNET, in reply, said, that as many of the members of both Houses were opposed to a cession of the road, as would appear by o: to the dabate which took place on that subject two years ago, he was apprehensive that an attempt to amend the bill, as had been suggested by the honorable Senator from South Carolina, might be followed by its loss. He observed that the bill, in its present form, presented no obstacle to the accomplishment of the object which the honorable Senator had in view; that, as it now stood, it secured that object in part, and in a very important part, and he hoped that gentleman would not persist in putting that part at risk, by an attempt now to obtain the residue, which might as well be secured at a future day. That, as the proposition now made was one about which there was a great diversity of opinion, an attempt to introduce it into the bill would certainly induce a protracted debate, which, at this late hour of the session, must be fatal to the whole project. The Senator from South Carolina did not object because he was unwilling to permit the State of Ohio to do what she proposed; on the contrary, as far as the proposition went, it seemed to meet his approbation; but he desired to go further—he wished to make a complete cession of the road; that object would not be defeated by passing the bill in its present shape, but the bill would certainly be defeated by an attempt to amend it as proposed, for the purpose of gaining that object at the present time. On these considerations, Mr. B. objected to the proposition which had been made. Mr. POINDEXTER said that there were at least two objections to the bill as it now stood, unless the provision suggested by the gentleman from South Carolina should be incorporated into it. The first was, that it undertook to transfer to the Legislature of Ohio a right to erect tollgates, &c. with a view to the collection of revenue, to provide for keeping the road in repair—a power which the Congress of the United States did not itself possess. The matter had been more than once discussed in Congress, and bills providing for raising a revenue from tolls, for the repair of the road, had been rejected. If, then, Congress did not possess the power, could the right be transferred, by Congress, to the Legislature of the State of Ohio? In his opinion, it could only be done by ceding that part of the road lying within the State of Ohio to that State altogether, and thus give its Legislature a right to exercise the power now sought to be obtained. If the power were not given in this way, he could not see in what other way it could be done, when Congress did not possess the power itself. The second objection was, that, by the provisions of the bill, the justices of the peace in the state of Ohio were to exercise jurisdiction over offenders against the law, and to enforce its provisions.
National Road in Ohio.
those officers of the State of Ohio. The constitution provides, that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.” Can we travel out of the course laid down for us in the constitution, and give an authority to State officers to enforce our laws—give them a jurisdiction which we have no authority to do by the constitution? No, said Mr. P.; we have not the power to constitute these officers, quoad hoc, judicial officers of the United States. The course which he should prefer, and which should be pursued, was, to cede that part of the road to the State of Ohio, passing through her boundaries, and so on to other States, to the whole length of the road: for this was the worst Government in the world to have the management of the roads. He had thrown out these views for the consideration of the Senate, and he hoped honorable gentlemen would agree with him in the expediency of an entire cession. Mr. LIVINGSTON said that the gentleman from Mississippi, who had just taken his seat, mistook, a little, the provisions of the bill. It did not grant a power to erect toll-gates, but simply gave the assent of Congress to the State of Ohio to do so. The road passed through the limits of the State, but was constructed by the United States. Many persons were of opinion that, because the road was made with the money of the United States, therefore it was the property of the United States—others were of opinion that the road was constructed in pursuance of the power possessed by the Government to make post roads; and on these two cases many disputes might arise. He was opposed to ceding the road to the States. Mr. L. remarked that it was the State of Ohio which gave the power referred to the justices of the peace, and not Congress; we, in sanctioning her law, simply assent that she shall have the power to give the jurisdiction to these officers expressed in the bill, and do not appoint them ourselves. Mr. L. made a reference to the inspection and other laws of the States, which were sanctioned by the United States’ Government, but were not laws of Congress. He wished similar provisions to those contained in the present bill could be extended to every State through which roads ran, constructed by the United States. Mr. POINDEXTER thought he discovered, in the arguments of the Senator from Louisiana, a distinction without a difference. If the assent of Congress was necessary to give effect to a law of the State of Ohio, then we certainly transferred to her a power to do that which she could not do herself. If she had a right to exercise the power proposed to be given in this bill, without our consent, then the bill is useless; but if our assent is necessary, then our act is the only thing which gives a binding effect to the law of the State of Ohio. Where was the difference in our acting on subjects of this kind subsequently or anteriorly? In the present case the Legislature had acted beforehand, and sent their law to us for our assent to its provisions. If we were to pass a law beforehand, giving them the power now sought to be obtained, and they saw proper to act upon the subject, would it not amount to the same thing? The justices of the peace in Ohio, he maintained, would, in this instance, act entirely dependent on our will; and, in granting them the power sought to be obtained, we were going beyond the provisions of the constitution. Mr. LIVINGSTON said he would state the difference in the two cases, and it was the same difference which existed between a compromise and a suit at law. Might not, two parties being at variance, one offer a compromise for the settlement of their differences, and the other refuse, because, he would say, if I do agree to a compro
mise, you will say, that I admit you have the right on your SENATE.]
certainly, said Mr. P., we cannot give this jurisdiction to side? As to the justices of the peace, when they came Punishment for Duelling.—Turkish Commission.
vo L. VII.--19
to act, it would not be by virtue of any law of Congress, but under the provisions of the law of Ohio. Mr. FORSYTH said he could not vote for the bill in its present shape. He agreed with the gentleman from Mississippi in his views of the matter, and would cheerfully vote for a cession of the road, if the State of Ohio, or any other State concerned, was willing to take it. He was among those who believed that the United States could claim no jurisdiction over the property. The State of Ohio asked of us a jurisdiction which we could not give, said Mr. F., because we had not the power. Cede the roperty to her, and she might exercise such legislation in relation to the road as she might see proper. He regretted that he could not vote for the bill; he had assigned his reasons why he could not. He was willing to surrender every section of the road to the States interested, if they would keep it in repair. Mr. RUGGLES said, this was the third effort which had been made to prevent the road from going to ruin. There was no other method that could be pursued to accomplish the end in view. Bills for the preservation of the road had been before Congress on several occasions, but without success. One did pass the two Houses, but was rejected by the then President—Mr. Monroe. Other projects had been tried, but nothing finally done. The State did not contemplate deriving a revenue from the tolls collected; their only object was, to keep the road in repair, and to this purpose the funds would be applied. It would be to the bencfit of the United States to assent to the act; and if, in the present case, the assent of Congress was obtained, the States of Virginia, Pennsylvania, Maryland, &c. would hereafter adopt similar measures, Some measure, to keep the road from dilapidation and ruin, should be speedily resorted to. It was the best road in the country; but, unless early attended to, must go to decay. He thought the bill prescribed the best course that could be adopted, and hoped it would pass. Ohio did not ask for or want the road; she simply wished the power to preserve it from destruction. Mr. BURNET said, there was one point of view, in which the subject might be presented, which he thought would remove the difficulty under which the Senator from Mississippi seemed to labor. The national road, he said, had given rise to questions of doubtful or disputed jurisdiction. Many persons of information and legal talents were of opinion that the jurisdiction vested in the State through which the road passed; others, equally well informed and of equal legal talents, were of a different opinion; they thought the jurisdiction was in Congress, and in this state of things the road was fast going to ruin. For the purpose of obviating the effects of this collision of opinion, without meeting the contested question, the Legislature of Ohio, he said, has passed a law, exercising a jurisdiction in part, with a proviso that it should not be carried into effect without the consent of Congress. The whole amount of the matter then was, that the contending parties, by this bill, consented that Ohio should take charge of the road, for the purpose of preserving it, leaving the question of right as it heretofore stood—unsettled and undecided. The Senator from Mississippi had certainly misapprehended the bill; he had
considered the language of the Legislature as being the language of Congress, by supposing that the latter was about to vest jurisdiction by this bill in the officers and courts of the State, when, in fact, it was the enactment of Ohio which gave the jurisdiction, and when Congress were required to do nothing more than express their approbation of the course pursued by that State—all the power to be exercised by those courts and officers would
be derived from the State, by an express enactment, in
which the United States were neither named nor referred to as having any agency in the matter. If a State, said
he, by statute, gave jurisdiction to her own tribunals and,
officers, Congress, by expressing its approbation of the measure, will not become the grantor of that jurisdiction; it would still be an authority derived exclusively from the State.
The question was then put on ordering the bill to be engrossed for a third reading, and determined in the affirmative.
PUNISHMENT FOR DUELLING.
Mr. LIVINGSTON submitted the following resolution:
Resolved, That a select committee be appointed to examine and report whether any legislative provision is expedient, in order to prevent and punish the practice of duelling in the District of Columbia, and that they have leave to report by bill or otherwise.
In offering this resolution, Mr. L. remarked, that when the bill from the other House, for the punishment of crimes in the District of Columbia, was under consideration, some exception was made to that clause which related to the punishment for duelling. Not to hazard that bill, the clause had been stricken out, with a view to come at the subject by the appointment of a committee to prepare and report a special bill relative to duelling. With this view he had offered the resolution, and he doubted not that a bill might be reported in time to be acted on at the present session.
Mr. HAYNE was in favor of the adoption of the resolution. It was his object, in moving to strike out the clause of the bill referred to, that the gentleman from Louisiana [Mr. Liv INgston] might have an opportunity to present his views on the subject in the shape of a specific bill. Should a bill be reported, as an individual he would cheerfully co-operate with him; and he thought such a bill might be matured, as would have a beneficial effect.
The resolution was then agreed to, and Messrs. Liv1Ngsto N, HAYNE, and CLAytos were appointed the committee.
The Senate then resumed the consideration of the amendments to the appropriation bill, the question being on the motions of Messrs. TAzew Er.I. and KANE.
Mr. FORSYTH said he was in favor of the amendment proposed by the Senator from Illinois, [Mr. KANr.] He was satisfied of its strict propriety, by his recollection of what occurred in the House of Representatives in the year 1818, when he occupied in the House the position now occupied in the Senate by the Senator from Virginia, [Mr. TAzew ELL, ) who first opened the discussion. Mr. Monroe had appointed three distinguished citizens commissioners to go to Spanish America, to examine into the political condition of the States struggling to maintain their independence. He had promised them salaries at the rate of $6,000 per annum each, and had given them a secretary with a salary of 2 or 3,000 dollars. These gentleman had all been appointed during the recess of the Senate, and were not nominated at the ensuing session. They had left the United States on their mission before Congress met. Their mission was one of the topics of the Executive message at the opening of Congress. The appropriation bill of that year was reported with a clause making a specific appropriation for the payment of these commissioners and their secretary. The Speaker of the House, Mr. Clay, who was just beginning to display symptoms of hostility to the administration, inquired into the authority for making those appointments—doubted the propriety, and condemned the expediency of them. After a consultation with that distinguished statesman, the late Mr. Lowndes, the purity of whose character, the soundness of whose judgment, whose honorable ambition, with not enough of the alloy of selfishness in it to make it current in the world's traffic, gave to his opinions, while he lived, the most imposing weight. Mr. F. proposed to strike from the appropriation bill the specific appropria