USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. II > Part 32
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It is profitable to recur to the various gradations by which we have reached the freedom we now enjoy. Every theory of a republican government should seem to involve a public pro- cedure of its representatives; as otherwise their actions could not be known until it was too late to prevent a mischievous result. But our reasoning and experience on this subject had been derived from England, where, even to this moment, a standing order of the House of Commons, though fallen into disuse, pro- hibits the publication of their debates without the formal consent of the House itself or of its Speaker. When Lord Campbell was about to publish the first volumes of the Lives of the Lord Chancellors, he thought it prudent to move the repeal of a rule of the House of Lords which prohibited any one from writing the life of a lord or officer of that House without the consent of the House or of the representatives of the deceased. As he could not easily learn who were the descendents of Augmendus, the Chancellor of Ethelbert, or even the representatives of Wil- liam of Wickham, without certainly subjecting himself to the charge of a breach of privilege, he obtained the abrogation of the rule in question. From the commencement of the sessions of the Senate of the United States, in April, 1789, to the 20th of
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February, 1794-a space of five years-that body imitated the example of the old Congress, and sat alike in its executive and legislative capacity with closed doors. Experience is a wise teacher; and we owe much that is permanent and valuable in our institutions to the caution which its lessons have enjoined; yet there is great difficulty in determining what is taught in a given case. It is honorable to the Republican party that, while expe- rience and prejudice might seem to lean against them, they opened, without hesitation, the doors of the Senate to the people and admitted reporters on its floor.
The repeal of the judiciary act of the last session was now agitated in the Senate. Mason, the colleague of Nicholas, moved (January 6, 1802) the reading of that part of the President's message relating to the judiciary; and when the reading was ended, Breckenridge rose and moved that the act passed at the last session respecting the judiciary establishment be repealed. The resolution was considered on the 8th of January-a day fatal to the Federal party-when its author explained his views in a speech of unusual ability. He was followed in opposition by Governor Morris, who was replied to by Jackson (of Georgia). Tracy followed in opposition, and was succeeded by Mason, who, by considerations drawn from the Constitution, from the practice of the States, and from public convenience and expedi- ency, justified the repeal. He was followed by Olcott in oppo- sition, who was replied to by Cocke. Morris again took the floor in an elaborate and brilliant oration, mainly in reply to Mason. It was not until the 3d of February that the debate ended, when the motion to repeal the judiciary act was carried by a vote of sixteen to fifteen-Nicholas and Mason in the affirmative. 307
When the vote was about to be taken on referring the bill to repeal the judiciary act to a committee-a measure recommended and enforced by its enemies-and after an able appeal by Cal- houn (of South Carolina) in favor of reference, Nicholas, whose skill as a party manager was held in high respect, rose to speak
307 I have made this summary of the debate from Benton's second volume; but Mr. Benton's account is very imperfect and cannot convey the faintest impression of the interest excited in the several stages of the bill. A tolerably fair account may be seen in the little volume pub- lished by Bronson in 1802, where the ayes and noes are always given.
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to the point. He said he flattered himself that the subject was well understood by the Senate. "What is now the question ? The same that has been so often decided. Gentlemen in oppo- sition have said, 'Amend, but do not repeal.' He could say that every vote of that House, in every stage of the discussion, had said, " Repeal, and do not amend.' He believed the old system required but little amendment. It was the best suited to the interests of the United States and of the States. The law of the last session was in fact a bar to improvement. Gentlemen say why not provide for these judges as you have provided for a judge of the Supreme Court. He would reply that the last operation was simple and easy of execution; but how were we in this new mode to get rid of the circuit judges without having these courts in one part of the Union and not in another? The gentlemen from New Jersey has said this measure is admitted to be bold and violent. By whom is it admitted? Not by me or by gentlemen who think with me. As regards the Constitu- tion, there is no man here-let his boast of federalism be what it may-that can take stronger ground than I hold. Gentlemen profess a great respect for the Constitution; but our principles are not to be evidenced by mere professions. They are to be evidenced by the series of our actions." "My conduct," said Nicholas, "since the formation of the Constitution to this day, is known by those who know me, as well as the conduct of gentlemen is known by those who know them. To the people I appeal. I am not to be alarmed by the tocsin of hostility to the Constitution that is so loudly sounded in our ears. I hope, sir, we shall have the question."
When Nicholas took his seat the question was taken on referring the bill to a committee, and the vote was a tie-fifteen to fifteen-when the Vice-President gave the casting vote on the, affirmative with a distinct declaration that he regarded the purposes of its opponents to be sincere; but that if he saw that it was only meant to defeat the bill he would vote accord- ingly. 308
At the close of Ogden's speech, after Wright and Jackson had made some explanations, Nicholas again rose to speak, with a copy of the Constitution in his hand, but seeing that Brecken-
308 (Debates on the Judiciary Bill, by Bronson, page 256.)
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ridge had the floor, took his seat.309 On the 3d of May the Senate adjourned.
. In the December session (1802) Nicholas was early in his seat, and took an active part in the leading questions of the times.
The first of a party caste that engaged the attention of the Senate was the memorial of the judges who were appointed under the judiciary act of 1800, which had been repealed at the last session. The form in which it presented itself was that of a resolution from a committee, requesting the President of the United States to cause an information, in the nature of a quo warranto, to be filed by the Attorney-General against Richard Bassett, one of the judges, for the purpose of deciding judicially on their claims. The resolution, after a long debate, was rejected by a vote of thirteen to fifteen -- Nicholas in the majority. The
great political topic of the session was the subject of the Missis- sippi. Spain had ceded the province of Louisiana to France, and our right of deposit at New Orleans had been suspended. The Executive communicated the facts to the Senate in a mes- sage, which at the same time nominated Robert R. Livingston as Minister Plenipotentiary and James Monroe as Minister Extraordinary and Plenipotentiary to France and Spain, to arrange the difficulty by negotiation. In a few days a bill came up from the House of Representatives making further provision for the expenses attending the intercourse between the United States and foreign nations. The object of the bill was to author- ize the purchase of the island of New Orleans only; for at this time the purchase of all Louisiana, though doubtless entertained by Mr. Jefferson, had not been communicated to either house. The purpose to be accomplished by the bill was of transcendant importance to the whole country as closing a troublesome ques- tion, likely at any moment to lead to war, and to the Western States in particular; but it appealed in vain to the Federal minority. The vote on its passage was fourteen to twelve, Nicholas and his colleague (Mason) ably sustaining it. Mason's speech on its several stages is preserved, but that of Nicholas, though referred to in debate, is probably lost. The subject of the Mississippi called forth the last speech of Mason, who died a few weeks later in Philadelphia; but he could not have spoken
309 Ibid, page 312.
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on a grander or more glorious topic, and I could have wished that he had lived to learn that by the present bill the vast domain ·of Louisiana was in a few weeks forever secured to his country.
While this wise and politic measure was under discussion, Ross, of Pennsylvania (a Federal member), introduced a propo- sition of his own on the Mississippi question, which appeared to go far beyond the administration in avenging the wrongs and in securing the rights of the West, but which, in fact, was inge- niously designed either to force the administration into an immediate war with Spain or France, or to expose it to a for- feiture of the affection and support of the Western people. No member of the Senate was more capable of detecting and exposing such a tortuous policy than Nicholas, who, though unwell, spoke with his usual tact on the question. The propo- sition of Ross was met by one from Breckenridge, which made it acceptable to the administration, and which was adopted by a strict party vote. Nicholas warmly sustained the amendment, and, the question recurring on the resolution as amended, it passed unanimously-a remarkable instance in which the oppo- sition, by seeking to thwart the administration by outdoing it on its own ground, was forced to play into its hands and to fur- ther its most darling purposes.
The Eighth Congress assembled in Washington on the 17th of October, having been convened by a proclamation of the Presi- dent in consequence of the purchase of Louisiana. Nicholas was present on the first day, and must have heard, with a just pride, the Clerk of the Senate read the message of his friend and neighbor, which announced in graceful and modest terms the consummation of that great event. John Taylor (of Caroline) had succeeded Mason by an executive appointment, and until the arrival of his successor, 310 and afforded Nicholas the aid of his great abilities at that difficult conjuncture. The first move- ment on the subject of the treaty was made by Breckenridge, who gave notice on the 21st that he would ask leave next day to bring in a bill to enable the President to take possession of the territories ceded by France to the United States by the treaty concluded in Paris on the 20th of April last, and for other pur-
310 Abraham B. Venable, who lost his life at the burning of the Rich- mond Theatre on the evening of December 26, 1811.
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poses, which was brought in accordingly, and in due time became a law.
The proceedings of the House of Representatives during the late presidential election, when it was doubtful for some time whether the person who had received seventy-three votes-a majority of all the votes-for the office of President should be chosen in preference of one who had not received a single bona- fide vote for the office, were well calculated to excite alarm, and seem to render an amendment to the Constitution indispensable to prevent the possible recurrence of such a crisis. A resolution was accordingly brought forward by DeWitt Clinton respecting an amendment to the Constitution respecting the election of President, and was referred to a committee, of which Nicholas was a member. When the report came up, on the 23d of November, Nicholas moved to strike out all following the seventh line of the report to the end, and insert an amendment which he held in his hand, and which was substantially the same as that subsequently engrafted upon the Constitution. The motion to strike out was agreed to unanimously, and the amendment was adopted. The bill passed the Senate by a vote of twenty-two to ten, was ultimately ratified by the States, and will effectually prevent the mischief it was designed to remedy. The debate on the bill was very able-John Taylor (of Caroline) making the closing speech, and winding up by quoting the lines recited by a member in the House of Commons in the debate on the bill to exclude the Duke of York (afterwards James the Second) from the succession:
" I hear a lion in the lobby roar ; Say, Mr. Speaker, shall we shut the door And keep him there ? Or let him in, To try if we can get him out again ?"
One of the most interesting debates of the session occurred on the bill authorizing the creation of a stock of eleven million two hundred and fifty thousand dollars for the payment of the pur- chase-money of Louisiana. It was warmly opposed by White, Wells, Pickering, Dayton, Tracy, and others, and was warmly supported by Wythe, Taylor (of Caroline), Breckenridge, and Nicholas. The bill finally passed by a vote of twenty-six to five, some of the Federal members having changed their minds dur- ing the discussion. Nicholas closed the debate as follows:
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"The gentlemen on the other side, Mr. President, differ among themselves. The two gentlemen from Delaware say that if peaceable possession of Louisiana is given, this bill ought to pass; the other gentlemen who have spoken in opposition to it have declared that if they believed the Constitution not violated by the treaty they should think themselves bound to vote for the bill. To this Senate it cannot be necessary to answer argu- ments denying the power of the Government to make such a treaty; it has already been affirmed, so far as we could affirm it, by two-thirds of the body. It is, then, only now necessary to show that we ought to pass the bill at this time. In addition to the reasons which have been so ably and forcibly urged by my friends, I will remark that the treaty-making power of this Gov- ernment is so limited that engagements to pay money cannot be carried into effect without the consent and co-operation of Con- gress. This was solemnly decided, after a long discussion of several weeks, by the House of Representatives, which made the appropriations for carrying the British treaty into effect, and such, I believe, is the understanding of nine-tenths of the American people as to the construction of their Constitution. This decision must also be known to foreigners; and if not, they are bound to know the extent of the powers of the Government with which they treat. If this bill should be rejected, I ask gentlemen whether they believe that France would or ought to execute the treaty on her part? It is known to the French Gov- ernment that the President and Senate cannot create stock, nor provide for the payment of either principal or interest of stock; and if that Government should be informed that a bill author- izing the issue of stock to pay for the purchase 'after possession shall be delivered,' had been rejected by the only department of our Government competent to the execution of that part of the treaty, they would have strong ground to suspect that we did not mean to execute the treaty on our part, particularly when they are informed that the arguments most pressed in opposition to the bill were grounded upon a belief that the Government of the United States had not a constitutional power to execute the treaty. Of one thing I am confident, that if they have the dis- trust of us which some gentlemen have this day expressed of them, the country will not be delivered to the agents of our Government should this bill be rejected. The gentleman from
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Connecticut (Tracy) must consider the grant of power to the Legislature as a limitation of the treaty making power; for he says that 'the power to admit new States and to make citizens is given to Congress and not to the treaty-making power'; there- fore, an engagement in a treaty to do either of those things is unconstitutional. I cannot help expressing my surprise at that gentleman's giving that opinion, and I think myself justifiable in saying that if it is now his opinion, it was not always so. The contrary opinion is the only justification of that gentleman's approbation of the British treaty, and of his vote for carrying it into effect. By that treaty a great number of persons had a right to become American citizens immediately, not only with- out a law, but contrary to an existing law. And by that treaty many of the powers specially given to Congress were exercised by the treaty-making power. It is for gentlemen who supported that treaty to reconcile the construction given by them to the Constitution in its application to that instrument with their exposition of it at this time.
"If," he continued, "the third article of the treaty is an engagement to incorporate the territory of Louisiana into the union of the United States and to make it a State, it cannot be considered as an unconstitutional exercise of the treaty-making power; for it will not be asserted by any rational man that the territory is incorporated as a State by the treaty itself, when it is expressly declared that 'the inhabitants shall be incorporated in the union of the United States and admitted as soon as possi- ble, according to the 'principles of the Federal Constitution'; evidently referring the question of incorporation, in whatever character it was to take place, to the competent authority, and leaving to that authority to do it at such time and in such man- ner as they may think proper. If, as some gentlemen suppose, Congress possess this power, they are free to exercise it in the manner they may think most conducive to the public good. If it can only be done by an amendment of the Constitution, it is a matter of discretion with the States whether they will do it or not; for it cannot be done 'according to the principles of the Federal Constitution' if the Congress or the States are deprived of that discretion which is given to the first, and secured to the last, by the Constitution. In the third section of the fourth article of the Constitution it is said 'new States may be admitted
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by the Congress into this Union.' If Congress have the power, it is derived from this source; for there are no other words in the Constitution that can, by any construction that can be given to them, be considered as conveying this power.311 If Congress have not the power, the constitutional mode would be by an amendment to the Constitution. If it should be conceded, then, that the admission of this territory into the Union as a State was in the contemplation of the contracting parties, it must be understood with the reservation of the right of this Congress or of the States to do it or not. The words 'admitted as soon as possible' must refer to the voluntary admission in one of the two modes that I have mentioned; for in no other way can a State be admitted into this Union."
The bill erecting Louisiana into two territories produced a long and most animated discussion, but ultimately passed by a vote of twenty to five-Nicholas sustaining the bill. He also voted with the majority (seventeen to twelve) on the bill to . repeal the bankrupt law. Another act of the session-unimpor- tant in itself, but frequently referred to-was the passage of the bill to alter and establish certain post-roads. The last section provided that two post-roads should be laid out under the inspection of commissioners appointed by the President-one to lead from Tellico block-house (in the State of Tennessee), and the other from Jackson court-house (in the State of Georgia), by routes the most eligible and as nearly direct as the nature of the ground will admit, to New Orleans. The bill had been referred to a committee, of which Nicholas was chairman. The vote on adding the last section to the bill was seventeen to ten; the minority voting on anti-Louisiana grounds and not from any constitutional scruple about the laying out of roads by Federal commissioners. It passed without a division.
On the 13th of March John Randolph (of Virginia) and Peter Early (of Georgia) appeared at the bar of the Senate, and, in the name of the House of Representatives and of all the people of the United States, impeached Judge Samuel Chase of high crimes and misdemeanors; and the Senate took the initiatory
311 If Governor Nicholas had lived to read the admirable review of this doctrine in a report on the American Colonization Society by Gov- ernor Tazewell, to be found in the United States Senate Documents of 1828, he would have taken broader ground on the subject.
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steps for a trial, which took place at the following session. Nor should we omit to say, in closing a review of the session, that the Senate, on the 21st of October, resolved to go into a mourn- ing of thirty days for Stevens Thomson Mason.
At the close of the session Nicholas, from the state of his private affairs, resigned his seat in the Senate. He fondly believed that, in the repeal of the judiciary and bankrupt laws, in the final settlement of the Mississippi question, which had, ever since the Declaration of Independence, harassed our coun- cils-State and Federal-by the acquisition of Louisiana, and in the growing popularity of the administration, which had now secured a predominant majority in both branches of the legisla- ture, a long period of comparative repose was to be enjoyed by his political friends, and that he was fairly entitled to a release from public life. He also knew that his seat in the Senate would be filled by Mr. Giles, his intimate personal friend, who was fully competent to sustain the administration on the floor of that body. But these pleasant anticipations were not to be fulfilled in all their extent. The extraordinary success of the administra- tion in its measures of domestic policy had almost annihilated opposition; but the party which had kept together in the face of an able and relentless foe was now to disagree within itself and to present a divided front to the enemy, which, though over- powered, was ever ready to show itself on the least chance of success.312
This is not the place to detail at length the causes which led to a split in the Republican party during the administration of Jefferson. The measures which the administration was com- pelled to adopt, in consequence of the arbitrary and piratical conduct of England and France, were the ostensible grounds of the schism; but it was then, and is now, believed that private griefs had no little share in making the breach. However this may be, one of the most eloquent friends of the administration became its bitterest enemy, and, leaguing with his old foes, not only opposed the measures of the party to which he still pro- fessed to belong, but sought most earnestly to involve the country
312 On resigning his seat in the Senate, Colonel Nicholas accepted the appointment of collector of the port of Norfolk and Portsmouth, but held it for a short time only.
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in a war with Spain, and, from the connection then existing between Spain and France, with France also. How far this feud might possibly extend it was difficult to foretell; and it became important-not only in respect of the administration as of the establishment of the party throughout the Union-that the policy of the eloquent and able, though meagre, minority should be counteracted by efficient management in the House of Repre- sentatives.
At this crisis it was the general wish of his party that Nicholas, whose popularity made all offices equally open to him, should again appear in Congress. He received intimations of the public will from various quarters, and he was pressed by Mr. Jefferson in the strongest terms to become a member of the House of Representatives, in which "his talents and standing, taken together, would have weight enough to give him the lead." 313 And that standing was indeed high. It was well known that he had repeatedly declined the most honorable and profitable foreign missions, and lately the mission to France, and that he could obtain not only any office in the gift of the Executive for himself, but could exert a great influence in getting offices for other people. He was accordingly returned from the Albemarle district in 1808, and his presence was soon felt to some extent in debate, but mainly by an efficient management which tended to thwart all the cherished plans of the Republican seceders, and to fix the Republicans in power for years to come. The seceders, who were commonly called tertium quids, felt that their day was over, that their real influence was henceforth gone, and that their only alternative was, whether they regarded the present or the future, to unite themselves permanently with their Federal allies, or, caps in hand, to beg readmission into the fold from which they had been tempted to stray. But, mean time, their tender mercies, when it was safe to bestow them, fell on Nicholas. He was a cousin of Sir Robert Walpole and a blood-relative of Talleyrand. He was more of an Italian than an Anglo-Saxon, and, if not really descended from Machiavelli-who had not yet been placed rectus in historia-he was one of his most danger- ous pupils. Posterity can form an opinion of the character of a public man from the caricatures and gibes of his enemies almost
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