Page images
[blocks in formation]

capable of self-government. This assertion must be founded either on the incapacity of the people to choose fit Representatives, or on their inability to find men properly qualified for Representatives. It is unnecessary, on this point, to go into detail. For the section under consideration presupposes the existence of men of sufficient talents to discharge Legislative functions. The President is bound to limit his appointments to persons who have resided one year in Louisiana. The only question is, whether the people are capable of making a discreet choice of Representatives? Wisdom and virtue are the qualifications of a legislator. Abstractly considered, these qualities are inscrutable; but, in particular individuals, they become objects of sense, visible to the most ignorant. And, from a happy ordinance of nature, the most ignorant and wicked are bound to venerate talents and virtue wherever they are found. As what has been said by a celebrated writer on this subject will be more conclusive, and carry with it more weight than anything I can urge, I will quote his words:

"The people are extremely well qualified for choosing those whom they are to entrust with part of their authority. They have only to be determined by things to which they cannot be strangers, and by facts that are obvious to sense. They can tell when a person has fought many battles, and been crowned with success; they are, therefore, very capable of electing a general," &c.-Montesquieu.

This distinguished writer does not, in these remarks, allude to particular people, living under a free Government, but refers to mankind in general, in all climates and ages. If, then, there can be no want of men qualified to legislate, and no want of discernment in the people to select them, no objection can arise to conferring the right of self-government, so far as consistent with the Constitution and our national sovereignty.

It is said, by the gentleman from Massachusetts, that the people of Louisiana stand in the same relation to us as if we had obtained the country by conquest. If so, we ought to operate upon them more by the influence of love than fear. It will be acknowledged, on all hands, that the exercise of power must be modified by the terms of the cession; and the treaty stipulates that:

"The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and, in the meantime, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." Not content with having provided for their incorporation, inasmuch as the period of incorporation could not be precisely fixed by an express engagement, it provided that, until that period, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess. If by liberty is meant doing that which the laws do not prohibit, then it is immaterial what kind of government be given

H. OF R.

them; but if, by liberty, it be understood that they shall not be bound by laws to which they have not consented, it is essential that there be given a form of government in which they shall either participate by themselves or through their Representatives. For these reasons, I have no hesitation in declaring, that my vote shall be in favor of striking out the section, and adopting in the place of it one or the other of the grades of Territorial government, or something similar to them. Messrs. ELLIOT, OLIN, and ELMER supported; and Messrs. S. L. MITCHILL, and LUCAS opposed the motion to strike out the fourth section, made with the view of extending to the people of Louisiana the elective franchise; when the question was put, and the motion to strike out carriedyeas 80, nays 15.

Mr. G. W. CAMPBELL offered the following substitute:


The Governor and Judges, or a majority of them, shall adopt and publish in the said Territory, such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the Territory, and may also make such laws as they shall deem conducive to the good Government of the inhabitants thereof, and report the same to Congress from time to time, which laws shall be in force in the said Territory until the organization of the General Assembly therein, unless disapproved of by Congress, but afterwards the Legislature shall have authority to repeal or alter them as they shall think fit.


"The Governor or Judges, or a majority of them, shall, as soon as may be, after they are appointed and commissioned, divide the said Territory into divisions, to be called counties, in such manner as may best suit the convenience of the inhabitants, each county to contain, as nearly as may be consistent with the nature of the settlements, an equal number of free persons; and the city of New Orleans shall form one county.

the peace

"Previous to the organization of the General Assembly, the Governor shall appoint such magistrates, and other civil officers, in each county of the said Territory, as he shall find necessary for the preservation of ral Assembly shall be organized, the powers and duties and good order in the same; after the Geneof the magistrates and other civil officers shall be regulated and defined by the said Assembly; but all magistrates and other civil officers, whose appointments are not herein otherwise provided for, shall, during the continuance of this temporary Government, be appointed by the Governor.

"The General Assembly, or Legislature, shall consist of a Legislative Council and a House of Representatives: the House of Representatives shall consist ofshall be chosen from the counmembers, of whom from

ty, including the city of New Orleans, and each of the other counties in the said Territory; a majority of whom shall be a quorum to do business. "No person shall be eligible or qualified to act as a representative except a free white male, who shall have been a citizen of one of the United States, or of one of the Territories, heretofore belonging to the United States, three years, and be a resident in the county for which he shall be chosen, or who shall have resided in the said Territory of New Orleans three years, and be resident in the county for which he shall be chosen, and in either case shall likewise hold in his own right, in fee, two hundred acres of land within the same.

H. of R.

North Carolina Contested Election.

Every person of the age of twenty-one years, having been a citizen of the United States, or having resided in the said Territory one year immediately preceding any election, shall be qualified to vote for a Representative or Representatives in the county in which he shall reside at the time of such election.

"The Governor and judges, or a majority of them, as soon as may be, after the said Territory shall have been divided into counties, and within from the passing of this act, shall make the necessary regulations; and give time and place to the inhabitants of each county of the said Territory, qualified to vote as herein-before prescribed, to elect representatives to represent them in the General Assembly. The representatives thus elected shall serve for the term of one year, and in case of the death of a representative, or removal from office, the Governor shall issue a writ to the county for which he was a member, to elect another in his stead to serve for the residue of the term.

- mem

"The Legislative Council shall consist of bers, to continue in office one year, unless sooner removed by the President of the United States, a majority of whom shall be a quorum to do business; and they shall be appointed in the following manner, to wit: As soon as representatives shall be elected, the Governor shall appoint a time and place for them to meet, and when met, they shall nominate persons, having the same qualifications as are herein declared necessary for representatives, and return their names to the Governor, who shall within days thereafter, appoint and commission of them to serve as a Legislative Council; and whenever a vacancy shall happen in the Council, by death or removal from of fice, the House of Representatives shall nominate two persons qualified as aforesaid for each vacancy, and return their names to the Governor, one of whom he shall appoint and commission for the residue of the term. The General Assembly shall meet at least once in every year, at the city of New Orleans, at such time after the first meeting as may be appointed by law. And the Governor shall have power on extraordinary occasions to convene the General Assembly.

"After the first election, representatives shall be elected annually, in such manner as the Legislature may direct, not contrary to the provisions of this act. And a Legislative Council shall likewise be annually appointed, in the manner herein-before directed.


serve in this House as a member for the seventh election district in the said State; also, sundry depositions and other papers transmitted from the counties of Montgomery and Cumberland, being part of the aforesaid seventh district, in the case of the said contested election; made a report thereon; which was read, as follows:

"That at an election held at the times and places directed by a law of the State of North Carolina, for the election of a member to serve in the eighth Congress, for the seventh district of said State, among other complaints, alleged by Duncan McFarland, it is proved by testimony, legally taken in presence of William McCarroll, the voluntary agent of Samuel D. Purviance, that, at the elections held at the different election districts into which the county of Montgomery is, by law, divided, the inspectors and clerks of the elections held at the several election divisions of the said county of Montgomery not only neglected, but refused, to take the oath obliging them to act with justice and impartiality, as directed by an act of Assembly of North Carolina, passed in the year 1802, notwithstanding that they were thereto required by Duncan McFarland, at the opening of the election; therefore, the committee, without deciding on the other complaints made against the said elections, consider the neglect and refusal to take the oath prescribed by law as sufficient ground to set aside the election held for the said county of Montgomery.

"That, with respect to the elections held at the election districts in and for the county of Cumberland, of the Congressional district aforesaid, a notification was given, according to law, by William Cochran, Esq., on the application of Duncan McFarland, on the 5th day him of the times and places where depositions were to of October, 1803, to Samuel D. Purviance, informing be taken, in support of the complaint of Duncan McFarland against the election of the said Samuel D.


Carroll attended, and acted as the voluntary agent of "That, agreeably to the notification, William McSamuel D. Purviance; that from the examination taken change the state of the poll, so far as to set aside the on this notification, sufficient cause does not appear to elections held in and for the said county of Cumberland.

"That all the witnessess not appearing agreeably to the said notification, a second notification was left at the house of Samuel D. Purviance, for the said Samuel D. Purviance, or William McCarroll, directed to the said McCarroll, his friend, on the 2d of November, 1803, appointing another examination of witnesses on the 22d, 23d, 29th and 30th days of that month. Of this notifi

"The General Assembly shall have authority to make laws in all cases for the good Government of the said Territory, not repugnant to the Constitution and laws of the United States. All bills having passed by a majority in the House of Representatives, and by a majority of the Council, shall be referred to the Governor for his assent, but no bill or Legislative act what-cation, Samuel D. Purviance, then in Congress, was ever shall be of any force without his assent.

"The Legislature of the said Territory shall have no power over the primary disposal of the soil, nor to tax the lands of the United States, nor to interfere with the claims to land within the said Territory."

The Committee now rose and obtained leave to sit again; and the House ordered the section proposed as a substitute to be printed.


Mr. FINDLEY, from the Committee of Elections, to whom were referred, during the present session, a representation of Duncan McFarland, of the State of North Carolina, complaining of an undue election of SAMUEL D. PURVIANCE, returned to

not informed until the 23d, viz: the day after that on which the examination was to commence, and he had authorized no agent; and neither William McCarroll, nor any other person, attended as his voluntary agent.

"That, on the first day of December, a third notification was left at the house of Samuel D. Purviance, for the said Samuel D. Purviance, or William McCarroll, his agent, or friend, directed to the said William McCarroll, to attend on the ninth and tenth days following, to the further examination of witnesses, as aforesaid; but the notification did not, or could not, reach Samuel D. Purviance, then in Congress, in due time; and neither William McCarroll, nor any other person, in behalf of Samuel D. Purviance, attended.

"It further appears to the committee, that though various irregularities and abuses are set forth in the de

[blocks in formation]

positions taken, agreeably to the second and third notifications, and alleged to have been practised at the said election, yet that Samuel D. Purviance had not such notice as put it in his power to attend the said examination of witnesses, or to appoint an agent so to do.

H. OF R.

the bill sent from the Senate, entitled "An act erecting Louisiana into two Territories, and providing for the temporary government thereof," being called for, a motion was made, and the question being put that the said order of the day be postponed until to-morrow, it was resolved in the affirmative.

"It further appears, from the documents, that depositions were taken, and examinations made, by magistrates who were not named in the notification isThe SPEAKER laid before the House a letter sued by the magistrate to whom the application was from the Postmaster General, transmitting a demade, and without a certificate of the matters and pro-tailed report of the amount of postage in each ceedings had by him in that behalf, as the law enacted by Congress provides. It also further appears that part of the testimony so taken is in the hand-writing of Duncan McFarland, one of the parties, and signed by the mark of the deponent, inconsistent with the act aforesaid, which provides that the magistrate shall cause the examination to be reduced to writing, in the presence of the parties, or their agents; which the committee are of opinion does not authorize the writing the examination by the parties themselves.

"Influenced by the aforementioned facts and circumstances, the committee are of opinion that the aforesaid testimony, respecting the election held in and for the county of Cumberland, cannot be admitted or acted on by the House.

"By comparing the certified records of the lists of taxables in said county, with the list of votes given at the election now contested, it appears that the number who voted exceeds the number of taxables in the county; viz: the number of persons who voted is 1,159, and the number of free taxable polls taken from the last returns of taxables is 1,117; but the committee discover that the tax lists of any year, agreeably to the laws of North Carolina, are not a perfect record of those who are entitled to vote, because citizens who, at any time, had formerly paid taxes, by the laws of that State, appear to the committee to continue to enjoy the privilege of I voting, though they might, for many years, have ceased to pay taxes.

State for three successive years, commencing with the first of October, 1800, and ending on the 30th of September, 1803, together with the expense of transporting the mails on all roads, in each State, and the amount of commissions of postmasters, as well as the other expenses in relation to the post offices, in three books, marked A, B, C, together with a summary report of the same, marked D, in pursuance of a resolution of this House of the fifth December last.-Referred to Mr. EUSTIS, Mr. A. TRIGG, and Mr. HAMPTON, to examine and report their opinion thereupon to the House.

Ordered, That the Committee of the whole House to whom was referred, on the twenty-third and twenty-seventh of January last, a report, in part, of the committee to whom were referred the petitions of sundry residents and purchasers of and in the State of Ohio; also, a farther report, in part, of the same committee, on "the expedienCy of amending the several acts providing for the sale of the public lands of the United States," be discharged from the consideration of the same.


The House went into Committee of the Whole on the report of the Committee of Elections, re"Therefore your committee are of opinion that there specting the clection of THOMAS LEWIS, the sitis not sufficient legal testimony to set aside the election ting member, declaring him not entitled, and deof Cumberland county, so as to vacate the seat of Sam-claring ANDREW MOORE entitled to a seat. uel D. Purviance."

The report was referred to a Committee of the Whole on Monday next.

THURSDAY, March 1.

An engrossed bill declaring the assent of Congress to an act of the General Assembly of Virginia, therein mentioned, was read the third time and passed.

An engrossed bill making an appropriation for carrying into effect the Convention concluded between the United States and the King of Spain, on the eleventh day of August, one thousand eight hundred and two, was read the third time. and passed.

An engrossed bill altering the days of session of the District Court for the District of Virginia was read the third time and passed.

Mr. RODNEY, from the committee appointed, presented a bill for the appointment of an additional Judge for the Mississippi Territory, and for other purposes; which was read twice and committed to a Committee of the Whole on Monday

[blocks in formation]

Mr. BALDWIN called for the reading of part of the evidence transmitted from the county of Greenbriar, which being read at the Clerk's table, Mr. B. observed, that as the Committee of Elections were not unanimous in their report, he felt it his duty, being one of those who were opposed to it, to state the ground of their opposition, in the hope that it might influence the House to reject the report. As no facts were detailed in the report as the basis of the result, he had called for the reading of the evidence from Greenbriar, the issue of the election depending on the principles to be adopted relative to the votes of that county. From the facts thus disclosed he was opposed to the report.

The act of Congress regulating the mode of taking evidence relating to contested elections, requires that a notification of the time, place, and object of the examination of witnesses shall be served on the opposite party, a convenient time before the day appointed, that he may be present. It appeared that the election was in the month of April. The President's proclamation for an extraordinary meeting of Congress was published in July, yet no measures were taken by the petitioner for the examination of witnesses until the

H. OF R.

Virginia Contested Election.

MARCH, 1804.

no validity to the evidence. He further observed that if the notice, such as it was, should be deemed legal, and the evidence taken under it admissible, he still contended the proof was insufficient to warrant the report.

month of September. The sitting member was notified to attend an examination at the courthouse in Greenbriar on the 21st of that month. He attended, and the witnesses attended, but the petitioner neglected to appear or proceed in the examination. After this, notification was issued, By the laws of Virginia the right of voting for on the 29th of September, fixing the time for the Representatives in Congress is in freeholders havexamination of witnesses at the same place, on the ing certain specified quantities of estate, and 12th day of October, accompanied with a written when entitled by deed or grant with six months' direction from the magistrate who issued it, that possession. The mode of elections is prescribed it should be served by copy five days before the by law, and known officers are designated to su12th. It appeared by the affidavit on the return, perintend the elections and certify the result. that service was made by posting a copy on the The result of this election is by the proper officers door of the dwelling-house of the sitting member duly certified in favor of the sitting member. on the 6th of October, after he had left home and From the return of these officers, under the sancwas on his way to the seat of Government, in tion of their official oath, the presumption is in obedience to the proclamation of the President of favor of the due election of the member returned the United States requiring his attendance in and of the legality of his votes, and cannot be set Congress on the 17th of the same month, a dis-aside without stronger proof on the part of the tance of three hundred miles from his place of petitioner. Let us then examine the proof on residence; that no person was left residing in his which he relies. The proof of the petitioner is house, and he had no actual notice of the service. in fact nothing more than the land list of the That when on his journey, at Lexington, seventy county. He rests his claim on a result of a commiles from home and more than one hundred parison of the poll with this list, and the rejection from Greenbriar court-house, on the 8th of Octo- of those from the poll whose names are not on ber, within four days' time of examination, a copy the list. was put into his hands, as also appears by the affidavit.

[blocks in formation]

By the poll for the county of Greenbriar, it appears that 589 votes were given for the sitting member, 245 of which do not appear on the land list; and 202 of these are eventually rejected by the committee as bad votes, and thus a majority of 59 is reported in favor of the petitioner. Of the 202 votes thus rejected, 175 were decided to be bad on no other proof than that they were not found on the land list.

As this alone turns the election, it becomes a serious question how far the land list is in any instance, and particularly in this country, a criterion to determine the qualifications of voters. It is not by any express law made a criterion; nor can it from its nature be such, even when most perfect. It appears that a list of lands was made for the purpose of taxation in the year 1782, and that the law of the State requires that the returns shall annually be made to the commissioners of the county, from the registers, of all new titles, and from the clerk of the county, of the records of conveyances. It cannot be presumed therefore that it can show the changes of title within the year, nor of course the right to vote which such titles may convey.

It is true, that by law, the magistrate issuing the warrant shall fix the time for its service; but he shall also fix a convenient time having respect to the distance. It was a fact well known through the country, that Congress were to meet on the 17th, and that according to the principles assumed in the act fixing the compensation for the travel of members, allowing one day for twenty miles, he might claim fifteen days for his journey. This notice was served within eleven days of the commencement of the session, and after the sitting member had in fact commenced his journey. His appearance was to be within five days of the session. The time fixed could not therefore be con- A freeholder by descent or marriage may vote venient or reasonable, even if service had been immediately on the acquisition of title; a puractually made. Indeed it may well be questioned chaser may vote after six months' possession, and whether the privilege of the House does not pro- is not required to record his deed for any purpose tect its members from the service of a process, so under eight months, and his right of voting would directly calculated to divert their attention from continue if the title should never be recorded; a the concerns of the nation, during the period of freeholder by lease has also a right to vote; of its privilege, without its consent. He was there- course there is a numerous class of voters whose fore of opinion that the notice was not such as right will never appear by the land list. A docucould on any principle bind the sitting member. ment which must necessarily be so imperfect It appears from the documents that a friend of the ought not in any case to be a criterion by which sitting member attended as his voluntary agent, alone the right of suffrage shall be denied to those but it also appears that he protested against the whose names do not appear on it. But it is in notice, and that he neither had instructions nor proof that the land list of the county of Greenauthority to appear. Such appearance can give | briar is peculiarly inaccurate and imperfect. It is

[blocks in formation]

a new county, and vast tracts of land have been located and patented within a few years, the titles of which do not appear on this list. The deposition of nine persons, including the sheriff, clerk, surveyor, the late and present commissioners, with others, selected as men best acquainted with the circumstances of this list, has been read. Those men on their oaths declare that this list is of their own knowledge unusually inaccurate; that it does not contain half the land in the county; that the returns have not been regularly made to the commissioner, and that no returns of patents have been made from the register's office since the year 1782. That the inaccuracy became so apparent as to induce the Legislature to attempt a revision in 1796. That so many difficulties occurred in the execution of this law that it was repealed in 1799, and the list has never been revised; and, in their opinion, is no criterion whereby to test the important right of suffrage.

It further appears by their deposition that so far as they jointly or severally know the persons objected to because not on the list, they are in possession of real estate, and in their opinion are legal voters. Such is the evidence respecting the land list of this county, coming from witnesses summoned on the part of the petitioner. Yet it is contended, and your committee, by their report, have sanctioned the principle, that this imperfect list, though unsupported even by the affidavit of belief, that those whose names do not appear on it are unqualified, shall turn the proof of the legality of nearly half the votes of the county upon the sitting member; and this too without ever furnishing him with a list of objectionable votes till the moment of examination. Thus not less than 175 voters out of 539 are deprived of the right of suffrage without opportunity of defence.

If this mode of taking proof, without previous notice of the points to which it is to apply, shall be sanctioned by the House; if the land list, however imperfect, is to be the criterion of the qualifications of voters; if the neglect of the petitioner to. take his proof in the proper time is to be disregarded; if the privilege of the House and the rights of the member must yield to the humor of the petitioner, surely the House will not suffer the member to be entrapped while in discharge of his duties by notice merely constructive, where the actual presence of the party is so essentially necessary to rebut the presumptions arising from such negative proof.

As Mr. B. was clearly of opinion that the notice given would not sanction the evidence, and that this land was not a criterion whereby to test the right of suffrage, he hoped the House would not agree to the report.

Messrs. FINDLEY and VARNUM supported, and Messrs. JACKSON and HUGER opposed the report. Messrs. R. GRISWOLD, GREGG, DAWSON, EARLY, and J. RANDOLPH, delivered their sentiments with a view principally to obtain explanations of facts or principles involved in the report.

Mr. J. RANDOLPH then moved that the Committee should rise in order to give the petitioner an opportunity of being heard at the bar of the House.

H. of R.

The Committee rose, and the motion was agreed to.

On motion of Mr. HUGER, permission was given to the petitioner and the sitting member to be heard by counsel.

The further consideration of the report was then postponed until to-morrow.

FRIDAY, March 2.

Ordered, That the report, in part, of the committee on the petitions of sundry residents and purchasers of land in the State of Ohio, made the twenty-third of January last; also, a further report, in part, of the same committee, "on the expediency of amending the several acts providing for the sale of the public lands of the United States," made the twenty-seventh of the same month, from the consideration of which the Committee of the whole House were yesterday discharged, be referred to Mr. NICHOLSON, Mr. MORROW, Mr. DWIGHT, Mr. BROWN, and Mr. BRYAN, with leave to report thereon by way of bill or bills.

The House resolved itself into a Committee of the Whole on the bill granting further time for locating military land warrants, and for other purposes; and, after some time spent therein, the bill was reported with an amendment thereto; which was read twice and agreed to by the House.

Ordered, That the bill, with the amendment, be engrossed and read the third time to-morrow.

Mr. NICHOLSON, from the committee appointed, presented a bill relating to ferries in the District of Columbia; which was read twice and committed to a Committee of the whole House tomorrow.

On motion, it was

Resolved, That a committee be appointed to inquire into the expediency of fixing the standard of weights and measures.

Ordered, That Mr. RODNEY, Mr. J. CLAY, Mr. TENNEY, Mr. S. L. MITCHILL, and Mr. T. M. RANDOLPH, be appointed a committee pursuant to the said resolution.

The House resolved itself into a Committee of the Whole on the bill sent from the Senate, entitled "An act to erect a light-house on the south end of St. Simon's island, in the State of Georgia, and for the placing a buoy or buoys on or near St. Simon's bar," together with a report of the Committee of Commerce and Manufactures thereon, made the twenty-seventh ultimo; and, after some time spent therein, the Committee rose and reported several amendments to the bill; which were twice read and agreed to by the House.

Ordered, That the said bill, with the amendments, be read the third time to-morrow.

On motion, it was

Resolved, That the Committee of the whole House be discharged from further consideration of the report of the Committee of Commerce and Manufactures on laying a tonnage duty on foreign ships and vessels, to be denominated light-money; and the report of the same committee on various memorials and petitions for the encouragement

« PreviousContinue »