instrument unlimited where it grants power, and nugatory where it limits
power.

We may feel alarmed when we see a committee of this House asserting that
the powers not given to the States (and it may be added, by the same
rule of construction, the powers not given to the people by the
constitution) belong to the General Government. We may feel alarmed when
that committee insist that, although it is true that the trial of all
crimes must be by jury, yet, to inflict a punishment when no offence--no
crime--has been committed, is not a violation of the constitution; when
the only distinction they apply to citizens consists in the difference
of punishment, but not in a difference of the principle. We may feel
alarmed when we find that Congress have already acted on those
principles towards citizens; that they have already passed another
law--the sedition law--grounded on the same principles, on the same
doctrine, or rather on the same abandonment of the explicit and evident
sense of the constitution, which alone could justify the alien law. I
hope--I trust--that the spirit which dictated both laws has subsided,
even within these walls, and that the same Congress who, under the
impressions of a momentary alarm, which prevented a cool investigation,
hastily adopted those two measures, will have courage enough to revise
their own conduct, to acknowledge their own errors, and, by a repeal of
the obnoxious acts, restore general confidence, union, and harmony,
amongst the States and the people.

When Mr. GALLATIN had concluded, the question was taken and
carried--yeas 52, nays 48.

The 2d resolution being next in order, viz:

      _Resolved_, That it is inexpedient to repeal the act passed
      the last session, entitled "An act in addition to the act,
      entitled An act for the punishment of certain crimes
      against the United States:"

Mr. NICHOLAS rose and spoke as follows:

Mr. Chairman--I am sorry to be obliged to rise at this late hour of the
day, indisposed also as I find myself, to speak on this important
question; but, since gentlemen are determined now to decide upon it, I
must be indulged in making some observations upon it, previous to the
question being taken.

The select committee had very truly stated, that only the second and
third sections of the act, in addition to the act for the punishment of
certain crimes against the United States, are complained of--that the
part of the law which punishes seditious acts is acquiesced in, and that
the part that goes to restrain what are called seditious writings, is
alone the object of the petitions.

This part of the law is complained of as being unwarranted by the
constitution, and destructive of the first principles of Republican
Government. It is always justifiable, in examining the principle of a
law, to inquire what other laws can be passed with equal reason, and to
impute to it all the mischiefs for which it may be used as a precedent.
In this case, little inquiry is left for us to make, the arguments in
favor of the law carrying us immediately, and by inevitable consequence,
to absolute power over the press. The case chosen for our first
legislation, that of "false, scandalous, and malicious writings," is
specious, and as likely as any can be to establish an interest in its
favor; but when it is fairly examined, it will be found to operate on
cases, which could not, at first view, be expected to come under it; to
be the instrument of most unjust oppression, and to restrain that free
communication of honest opinion which is the soul of the Government. But
when you come to inquire further, and learn, from the advocates of the
law, the authority which they claim for passing it, you will find that
the power claimed does not stop even with this law, mischievous as it
may be, but that it extends to absolute and unlimited control.

It is not pretended that the constitution has given any _express_
authority which they claim for passing this law, and it is claimed only
as implied in that clause of the constitution which says, "Congress
shall have power to make all laws which shall be _necessary and proper_
for carrying into execution the foregoing powers, and all other powers
vested by this constitution in the Government of the United States, or
in any department or office thereof." It is, therefore, necessary to fix
a just construction of this clause.

That the powers of the Federal Government were intended to be limited,
is universally admitted, in the abstract; is proved by every clause of
the constitution, and is positively declared by the 12th amendment in
these words: "The powers not delegated to the United States by the
constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people."

The just construction of the constitution, if the clause respecting
necessary and proper powers had been omitted, would have been the same
that it ought to be with the addition; for there can be no doubt, that a
grant of specified powers would have contained a grant of such power as
is necessary to carry the specified power into effect, and therefore the
declaration ought to make no difference, according to a well-known
maxim. This was the understanding of all the friends of the constitution
at its adoption, and the constitution ought now to be construed as if
the clause had been omitted. But it is proper to examine the meaning of
it, as expressed.

It is clear, that this clause was intended to be merely an auxiliary to
the powers specially enumerated in the constitution; and it must,
therefore, be so construed as to aid them, and at the same time to leave
the boundaries between the General Government and the State Governments
untouched. The argument by which the select committee have endeavored to
establish the authority of Congress over the press, is the following:
"Congress have power to punish seditious combinations to resist the
laws, and therefore Congress must have the power to punish false,
scandalous and malicious writings; because such writings render the
Administration odious and contemptible among the people, and, by doing
so, have a tendency to produce opposition to the laws."

It is expressly admitted by the committee, that the power to punish
seditious combinations to resist the laws, is only derived, by
construction, from the clause giving all necessary and proper powers
before recited; and that there is no express power in the constitution
to that effect. There is no dispute about this construction being just;
but I contend that the inference from this implied power cannot be
supported, viz: That Congress have a power to punish seditious writings.

The constitution says: "Congress shall have power over all acts which
hinder the execution," &c.; but, to make it support the construction of
the committee, it should say that, "Congress shall have power over all
acts which are likely to produce acts which hinder the execution," &c.
Our construction confines the power of Congress to such acts as
immediately interfere with the execution of the enumerated powers of
Congress; because the power can only be necessary as well as proper,
when the acts really would hinder the execution. The construction of the
committee extends the power of Congress to all acts which have a
relation, ever so many degrees removed, to the enumerated powers, or
rather to the acts which would hinder their execution. By our
construction, the constitution remains defined and limited, according to
the plain intent and meaning of the framers; by the construction of the
committee, all limitation is lost, and it may be extended over the
different actions of life as speculative politicians may think fit.

The suggestion on which the authority over the press is founded, is,
that seditious writings have a tendency to produce opposition to
Government. What has a greater tendency to fit men for insurrection and
resistance to Government, than dissolute, immoral habits, at once
destroying love of order, and dissipating the fortune which gives an
interest in society?

The doctrine that Congress can punish any act which has a tendency to
hinder the execution of the laws, as well as acts which do hinder it,
will, therefore, clearly entitle them to assume a general guardianship
over the morals of the people of the United States.

Again: nothing can have a greater tendency to ensure obedience to law,
and nothing can be more likely to check every propensity to resistance
to Government, than virtuous and wise education; therefore Congress must
have power to subject all the youth of the United States to a certain
system of education. It would be very easy to connect every sort of
authority used by any government with the well-being of the General
Government, and with as much reason as the committee had for their
opinion to assign the power to Congress, although the consequence must
be the prostration of the State Governments.

But enough has been said to show the necessity of adhering to the common
meaning of the word "necessary," in the clause under consideration,
which is, that the power to be assumed must be one without which some
one of the enumerated powers cannot exist or be maintained. It cannot
escape notice, however, that the doctrine contended for, that the
Administration must be protected against writings which are likely to
bring it into contempt, as tending to opposition, will apply with more
force to truth than falsehood. It cannot be denied that the discovery
of maladministration will bring more lasting discredit on the government
of a country, than the same charges would if untrue.

This is not an alarm founded merely on construction; for the governments
which have exercised control over the press, have carried it the whole
length. This is notoriously the law of England, from whence this system
has been drawn; for there, truth and falsehood are alike subject to
punishment, if the publication brings contempt on the officers of
government.

I have shown, as I promised, that the authority on which this act is
supported, gives unlimited power over the press, as to its investigation
of public affairs, which is its most important function; and I will now
endeavor to show, that the effect of the present law is very little
short of the complete restraint of all useful discussion on public men
and measures.

The law has been current by the fair pretence of punishing nothing but
falsehood, and by holding out to the accused the liberty of proving the
truth of the writing; but, it was from the first apprehended, and it
seems now to have been adjudged, (the doctrine has certainly been
asserted on this floor,) that matters of opinion, arising on notorious
facts, come under the law. If this is the case, where is the advantage
of the law requiring that the writing should be false, before a man
shall be liable to punishment, or of his having the liberty of proving
the truth of his writing? Of the truth of facts there is an almost
certain test; the belief of honest men is certain enough to entitle it
to great confidence; but their opinions have no certainty at all. The
trial of the truth of opinions, in the best state of society, would be
altogether precarious; and, perhaps, a jury of twelve men could never be
found to agree in any one opinion. At the present moment, when,
unfortunately, opinion is almost entirely governed by prejudice and
passion, it may be more decided, but nobody will say it is more
respectable; chance must determine whether political opinions are true
or false, and it will not unfrequently happen, that a man will be
punished for publishing opinions which are sincerely his, and which are
of a nature to be extremely interesting to the public, merely because
accident, or design, has collected a jury of different sentiments.

If the effect of the present law is to restrain the free communication
of opinion, and its principle will justify any control Government
chooses to exercise over the press, an inquiry may safely be entered on,
whether Congress ought to possess the power, even if the clause giving
necessary and proper power would extend to such remote cases? It is the
more necessary to inquire into the usefulness of this power in the hands
of Congress, since the opinion is becoming current, that that alone will
give Congress a right to assume it, upon the principle that Government
must have a right to do every thing proper for its safety. This doctrine
may be very fallacious, if not taken in the restricted sense to be
found in the clause giving necessary powers. No government can assume a
power not delegated, on pretence of its being necessary; for none have a
right to judge of what is necessary but the makers of the constitution,
otherwise all governments would be competent to make every alteration in
a constitution they might think proper, and the constitution would rank
with the laws, and not above them. For the execution of powers expressly
given, there must have been some latitude allowed to those who were to
execute them, the same in fact which is expressed in the clause
respecting necessary powers.

Is the power claimed proper for Congress to possess? It is believed not,
and will readily be admitted, if it can be proved, as I think it can,
that the persons who administer the Government have an interest in the
power to be confided, opposed to that of the community. It must be
agreed that the nature of our Government makes a diffusion of knowledge
of public affairs necessary and proper, and that the people have no mode
of obtaining it but through the press. The necessity for their having
this information, results from its being their duty to elect all the
parts of the Government, and, in this way, to sit in judgment over the
conduct of those who have been heretofore employed. The most important
and necessary information for the people to receive is, of the
misconduct of the Government; because their good deeds, although they
will produce affection and gratitude to public officers, will only
confirm the existing confidence, and will, therefore, make no change in
the conduct of the people. The question, then, whether the Government
ought to have control over the persons who alone can give information
throughout a country, is nothing more than this, whether men interested
in suppressing information necessary for the people to have, ought to be
intrusted with the power, or whether they ought to have a power which
their personal interest leads to the abuse of? I am sure no candid man
will hesitate about the answer; and it may also safely be left with
ingenuous men to say whether the misconduct which we sometimes see in
the press, had not better be borne with, than to run the risk of
confiding the power of correction to men who will be constantly urged by
their own feelings to destroy its usefulness.

The mode of thinking which countenances this law, and the doctrines on
which it is built, are derived from a country whose government is so
different from ours, that the situation of public officers ought to be
very different. In Great Britain, the King is hereditary, and, according
to the theory of their government, can do no wrong. Public officers are
his representatives, and derive some portion of his inviolability from
theory, but more from the practice of the government, which has, for the
most part, been very arbitrary. It was, therefore, of course, that they
should receive a different sort of respect from that which is proper in
our Government, where the officers of government are the servants of
the people, are amenable to them, and liable to be turned out of office
at periodical elections. In Great Britain, writings are seditious,
though they are true, if they tend to bring a public officer into
contempt.

In this country, it is seen that the same principle is contended for,
and that in practice, with respect to matters of opinion, we have gone
the whole length of the principle. How long can we expect to maintain
the other distinctive qualities of the magistracy of the two countries,
when this sameness is established? How long can it be desirable to have
periodical elections, for the purpose of judging of the conduct of our
rulers, when the channels of information may be choked at their will?

But, sir, I have ever believed this question as settled by an amendment
to the constitution, proposed with others, for declaring and restricting
its powers, as the preamble declares, at the request of several of the
States, made at the adoption of the constitution, in order to prevent
their misconstruction and abuse. This amendment is in the following
words: "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech or of the press, or the right of the people peaceably
to assemble and petition the Government for a redress of grievances."
There can be no doubt about the effect of this amendment, unless the
"freedom of the press" means something very different from what it
seems; or unless there was some actual restraint upon it, under the
Constitution of the United States, at the time of the adoption of this
amendment, commensurate with that imposed by this law. Both are
asserted, viz: that the "freedom of the press" has a defined, limited
meaning, and that the restraints of the common law were in force under
the United States, and are greater than those of the act of Congress;
and that, therefore, either way the "freedom of the press" is not
abridged.

It is asserted by the select committee, and by every body who has gone
before them in this discussion, that the "freedom of the press,"
according to the universally received acceptation of the expression,
means only an exemption from all previous restraints on publication, but
not to an exemption from any punishment Government pleases to inflict
for what is published. This definition does not at all distinguish
between publications of different sorts, but leaves all to the
regulation of the law, only forbidding Government to interfere until the
publication is really made. The definition, if true, so reduces the
effect of the amendment, that the power of Congress is left unlimited
over the productions of the press, and they are merely deprived of one
mode of restraint.

The amendment was certainly intended to produce some limitation to
legislative discretion, and it must be construed so as to produce such
an effect, if it is possible. This is required in the construction of
all solemn acts, but must be more particularly due to this on account
of the various examinations it underwent, previous to its adoption. It
was first recommended by the conventions of several States, was adopted
by two-thirds of both Houses of Congress, and finally ratified by
three-fourths of the State Legislatures. To give it such a construction
as will bring it to a mere nullity, would violate the strongest
injunctions of common sense and decorum; and yet that appears to me to
be the effect of the construction adopted by the committee. If
subsequent punishments are sufficient to deter printers from publishing
any thing which is prohibited, there is no stint to the power of
Congress; and yet, it appears to me that a limitation was clearly
intended. I cannot doubt the power of Government to bend printers to
their will by subsequent punishments, when all other offences are
restrained only in this way. Government does not punish men for keeping
instruments with which they can commit murder, but contents itself with
punishing murder when committed. The effect of the amendment, says the
committee, is to prevent Government taking the press from its owner; but
how is their power lessened by this, when they may take the printer from
his press and imprison him for any length of time, for publishing what
they choose to prohibit, although it may be ever so proper for public
information? The result is, that Government may forbid any species of
writing, true as well as false, to be published; may inflict the
heaviest punishments they can devise for disobedience; and yet we are
very gravely assured that this is "the freedom of the press."

But it is worth while to trace this definition to the place from whence
it is taken, and inquire into the circumstances in which it is used.
Blackstone, in his Commentaries on the Laws of England, after stating
the law respecting libels, which is, that every thing which brings a
magistrate into contempt is punishable, whether true or false, goes on
to say, that this law is not inconsistent with the liberty of the press;
and then gives a definition of the liberty of the press in the manner it
is used by the committee. The meaning of all Blackstone has said is
this, that the press has the proper degree of liberty in England, and
that libels, whether true or false, ought to be punished there. Let us
apply what he has called a definition, in the way he used it, to the
legislation of the United States. Suppose the present question was,
whether we should punish truth, as well as falsehood, in libels, would
gentlemen venture to tell us that it was consistent with the freedom of
the press, or that the degree of freedom proper for the United States
would remain? I venture to say they would not. Ought they, then, to
support the doctrine which hereafter may be practised on to the full
extent? Is there not reason to believe gentlemen hope to conceal the
full extent of their principles, by bringing them into operation only by
degrees? But, sir, it is a manifest abuse of Blackstone's authority to
apply it as it has been here applied. He had advanced into the fourth
volume of a panegyric on the laws of England, and after stating the law
on this subject, makes a theory to justify the actual state of the law.
It must be remarked, in his justification, that the nature of their
government justifies more rigor than is consistent with ours, and that
the existing law, of which he was writing the praise, had been greatly
softened in practice, by public opinion. In this case, there was no
danger of impairing the security to liberty, intended by the
constitution; for England has no constitution but what may be altered by
the Parliament, and therefore no great precision was necessary with
respect to general principles. Indeed, his observations on this subject
ought to be called a theory, and a theory adapted merely to his own
country, and not a definition. Very different are the circumstances in
which his doctrine has been applied here. A restrictive clause of the
Constitution of the United States, by its application, is made to mean
nothing, and when it is clearly the intention of the constitution to
put, at least, some acts of the press out of the control of Congress, by
the authority of this writer, all are subjected to their power.

But it is said, that the States have all adopted the same construction
which is given to freedom of the press by the committee, for that all
the State constitutions provide for it, and yet the law of libels
remains part of their codes. If this is fact, about which however I am
uninformed, it is easily to be accounted for. At the Revolution, the
State laws were either the law of England, or were built on it, and, of
course, they would contain the monarchical doctrine respecting libels.
When the State constitutions were formed, the old law was continued in
force indiscriminately, and only a general exception made of what should
be found inconsistent with the State constitutions. Now, to prove that
the States have considered the law of libels consistent with the freedom
of the press, gentlemen should show that this law has been practised on
since the Revolution, and that the attention of the States had been
called to it by its execution, and that it still remains in force. I
believe this cannot be done. So far as I know, it has been a dead
letter. I mean the law of libels against magistrates, and if so, the
argument is reversed, and is wholly on my side. The terms of this law
furnish one of the best proofs of the truth of my opinion; for the
framers of it, wound up as they have been, in their notions about
Government, since the adoption of the State Governments, endeavored to
take a middle course between real liberty and the State law, which is
supposed to continue in force, and have studiously endeavored to conceal
that their doctrine leads to the same thing by constantly pretending
that their law is to punish only falsehood. This is a plain admission,
that even now, public opinion would not support what they pretend is the
law of each State. But from the argument before urged, I think it must
be admitted, that if the States had so understood it, the construction
could not be extended to this amendment. No solemn instrument can be
construed so as to destroy it. I have seen somewhere, and I beg leave
here to remark on it, the authority of the Convention who formed the
constitution of Virginia, quoted to justify this construction. That
Convention is said to have passed a law similar to the law of Congress,
after having provided for the liberty of the press in their bill of
rights. Let us examine that law. The first section is to punish those
who shall "by any word, open deed, or act, advisedly and willingly
maintain or defend the authority, jurisdiction, or power of the King, or
Parliament of Great Britain, heretofore claimed over this Colony, or
shall attribute any such authority," &c. This section, passed at the
beginning of the most awful contest in which ever man was engaged, a
contest for the right of self-government against one of the most
powerful nations in the world, was to establish what? Not the
inviolability of the Governor of the State, nor of the majority of
either House of the Legislature, but to punish men who should promote
resistance to the right of the people to govern themselves, to the
principle of the constitution, to the republican principle. So different
is this from the object of the law of Congress, that it would have been
impossible to believe that they should have been compared, if we had not
seen it done. All argument must be thrown away on gentlemen who do not
feel the difference between the respect due to the constitution, to the
right of self-government in the people, and that which is due to the
organs of administration, who cannot only deserve contempt, but who are
to be removed with disgrace, according to the constitution itself, when
they misbehave. By the second section of this law, those were to be
punished "who should maliciously and advisedly endeavor to excite the
people to resist the Government of the colony, or persuade them to
return to a dependence on the Crown of Great Britain, or maliciously and
advisedly to excite or raise tumults and disorders in the State, or
maliciously and advisedly terrify and discourage the people from
enlisting in the service of the Commonwealth, or dispose them to favor
the enemy." The design of this section is apparently the same with the
former. Every act of ill-will to the existing Government, is immediately
followed by one tending to submission to Great Britain. These acts are,
however, out of the question, for they belong to the class enumerated in
the first section of the sedition law, which nobody wishes to repeal, as
the committee declare. But if the law had any analogy to the law of
Congress, it would be improper to quote it; for it is well known that
our Revolution made a resort to expedients necessary in a variety of
instances, which could not be justified by principle, and that for a
time personal rights were compelled to bend before public necessity.

A distinction is very frequently relied on, between the freedom and the
licentiousness of the press, which it is proper to examine. This seems
to me to refute every other argument which is used on this subject; it
amounts to an admission that there are some acts of the press which
Congress ought not to have power to restrain, and that by the amendment
they are prohibited to restrain these acts. Now, to justify any act of
Congress, they ought to show the boundary between what is prohibited and
what is permitted, and that the act is not within the prohibited class.
The constitution has fixed no such boundary, therefore they can pretend
to no power over the press, without claiming the right of defining what
is freedom, and what is licentiousness, and that would be to claim a
right which would defeat the constitution; for every Congress would have
the same right, and the freedom of the press would fluctuate according
to the will of the Legislature. This is, therefore, only a new mode of
claiming absolute power over the press.

But it is said, that the phraseology of the amendment proves that the
framers of it considered the freedom of the press as limited, otherwise
they would have used the same words in speaking of the freedom of the
press which they use in speaking of religious establishments. This
argument is certainly fanciful; but it shall be considered, as it is my
design to leave no argument, which I recollect to have seen, unanswered.
It is plain the writer of the amendment intended to indulge his
copiousness of expression, or that he had been accustomed to use certain
words in a particular connection. The amendment says, in speaking of
religion, "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." The change of
expression, according to the argument, ought to have some new object;
and yet there can be no doubt that if the word _prohibiting_ was
dropped, the provision would be the same. But the argument will lose all
force when the amendment is read to the end, and it seems to have arisen
merely from the committee having stopped in the middle of it, and lost
sight of the latter part. It says, "or abridging the freedom of speech,
or of the press, or the right of the people peaceably to assemble and
petition the Government for a redress of grievances." The argument is
that the word _abridging_, as it is distinguished from _respecting_,
implies that the freedom of the press was before limited; but, if this
is true, it must also be the case with the right of peaceably assembling
and petitioning, &c. Is this pretended, and may we hereafter expect to
have a definition of the right of petitioning, which will put it also
under the control of Congress?

I think I have answered every construction of the amendment which can
prevent its being completely prohibitory of all legislation by Congress
on the subject of the press, unless there was some existing restraint
under the Constitution of the United States, at the time of adopting
the amendment. To this inquiry I now proceed.

It is said, there is a common law which makes part of the law of the
United States, which restrained the press more than the act of Congress
has done, and that therefore there is no _abridgment_ of its freedom.
What this common law is I cannot conceive, nor have I seen any body who
could explain himself when he was talking of it. It certainly is not a
common law of the United States, acquired as that of England was, by
immemorial usage. The standing of the Government makes this impossible.
It cannot be a code of laws adopted because they were universally in use
in the States, for the States had no uniform code; and if they had, it
could hardly become, by implication, part of the code of a Government of
limited powers, from which every thing is expressly retained, which is
not given. There never was a uniform code of laws at any time among the
States. Their settlement took place at different times, and the law of
England was adopted up to the respective settlements, in the whole or by
selection. Virginia recognized the common law, properly so called, and
the statutes to the 4th James I.; Maryland, the common law, and statutes
up to the time of her settlement; and South Carolina, I am told, never
acknowledged any of the English statutes to be in force, except what
were specially adopted by law. With this dissimilarity at the
commencement, there can be no doubt that the decisions of courts, and
the statutes which were constantly passing, must have made the codes of
the several States altogether unlike at the time of adopting the Federal
Government. Is it the law of England, at any particular period, which is
adopted? It cannot be believed that this was a universal favorite; for
it had been greatly altered in every State, to adapt it to their
situation, and it cannot be believed that after altering it under the
instruction of experience, it was intended to bring it again into force.
But the nature of the law of England makes it impossible that it should
have been adopted in the lump into such a Government as this is; because
it was a complete system for the management of all the affairs of a
country. It regulated estate, punished all crimes, and, in short, went
to all things for which laws are necessary. It might be more properly
considered as the measure of the powers left with the States. But how
was this law adopted? Was it by the constitution? If so, it is immutable
and incapable of amendment. In what part of the constitution is it
declared to be adopted? Was it adopted by the courts? From whence do
they derive their authority? The constitution, in the clause first
cited, relies on Congress to pass all laws necessary to enable the
courts to carry their powers into execution; it cannot, therefore, have
been intended to give them a power not necessary to their declared
powers. There does not seem to me the smallest pretext for so monstrous
an assumption; on the contrary, while the constitution is silent about
it, every fair inference is against it. It was thought necessary to
adopt expressly many of the ancient and most valuable principles of the
law of England, such as trial by jury, and the writ of _habeas corpus_;
and wherever the constitution gives cognizance of crimes, which were
known in the law, it requires Congress to define them, and direct the
punishment, except in the case of treason, which it defines itself.
Perhaps it may be said, that the law of England with respect to libel
was in force in all the States, and that therefore it is to be
considered as adopted. When we recollect what that law is, that it
punishes truth as well as falsehood, and that the Congress of 1798 did
not think proper to enact its provisions in the full extent, it may be
fairly denied that it could have accorded with the jealous republican
temper of the Convention who adopted the constitution. If the common law
was adopted on this subject, it was adopted entire as it then existed,
and must remain for ever unchangeable as part of the constitution. The
power of juries must be the same that it was then, and no more, and the
improvement which was immediately afterwards produced by public opinion
in that respect, in England, will be denied to us, and we may even have
to regret the want of some of the provisions of the present odious law;
but there is too little reason for the suggestion of there being a
common law in the United States, to need a refutation. If there was a
uniformity in the law respecting libels, it is one of the strongest
evidences of what was before said, that this whole doctrine of libels
was obsolete; for nobody can doubt, after hearing what it is, that it
must have undergone considerable changes, if it had ever been practised
on.

The committee seem to suppose, for I confess it is very difficult to
comprehend this part of their argument, that the law of libels is
adopted by that part of the constitution which extends the judicial
power to cases of law and equity arising under the constitution; for
this is the expression of the part referred to by them, and not
"offences arising under the constitution," as they have quoted it. How
this can be inferred, I cannot conceive. If the expression was
"offences," as they assert, still it would mean offences on which
Congress was directed by the constitution to legislate; but, as the
expression really is, the cases are innumerable which come within it.
See "The Federalist," vol. II., for an explanation of this part of the
constitution. It is there said: "It has been asked, what is meant by
cases arising under the constitution, in contradistinction from those
arising under the laws of the United States? All the restrictions on the
authority of the State Legislature furnish examples of it," &c. For the
opinion of the same writer, as to the force of the common law in the
United States, see same volume, page 345, and the two following pages,
in which he answers the objection to an omission of its provisions, and
admits that it is not adopted by the constitution.

Upon the whole, therefore, I am fully satisfied, that no power is given
by the constitution to control the press, and that such laws are
expressly prohibited by the amendment. I think it inconsistent with the
nature of our Government, that its administration should have power to
restrain animadversions on public measures; and for protection from
private injury from defamation, the States are fully competent. It is to
them that our officers must look for protection of persons, estates, and
every other personal right; and, therefore, I see no reason why it is
not proper to rely upon it, for defence against private libels.

The call for the question being loud,

Mr. MCDOWELL rose, and hoped the question would not now be taken, but
that the committee would rise, it being now a late hour of the day, and
he doubted not other gentlemen would wish to deliver their sentiments
upon this important question; and he thought an hour or two of to-morrow
might be well employed in the discussion of this subject--a subject
which had been brought before the House by the people, and ought,
therefore, to receive a full discussion. He moved the committee to rise.

The question on rising, was put and negatived--55 to 42.

The question was then taken on the resolution, and carried, 52 votes
being in favor of it.

The question was then taken upon the third resolution, which was carried
without a division.

The committee then rose, and the question being upon concurring in the
agreement of the committee for the first resolution,

Mr. LIVINGSTON entered upon a defence of the sentiments which he
delivered when the passage of this law was under consideration, which,
he said, had been much misrepresented; but, after making some progress
in his observations, the Speaker declaring them unconnected with the
question before the House, he sat down, and the first resolution was
decided by yeas and nays, and stood--52 to 48, as follows:

      YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James
      A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock,
      Christopher G. Champlin, John Chapman, James Cochran,
      William Craik, Samuel W. Dana, John Dennis, William Edmond,
      Thomas Evans, Abiel Foster, Dwight Foster, Jonathan
      Freeman, Henry Glenn, Chauncey Goodrich, William Gordon,
      Roger Griswold, William Barry Grove, Robert Goodloe Harper,
      Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James
      H. Imlay, Samuel Lyman, James Machir, William Matthews,
      Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Isaac
      Parker, Thomas Pinckney, John Read, John Rutledge, jr.,
      James Schureman, Samuel Sewall, William Shepard, Thomas
      Sinnickson, Nathaniel Smith, Peleg Sprague, George
      Thatcher, Richard Thomas, Mark Thompson, Thomas
      Tillinghast, John E. Van Allen, Peleg Wadsworth, Robert
      Waln, and John Williams.

      NAYS.--Abraham Baldwin, David Bard, Thomas Blount, Richard
      Brent, Robert Brown, Samuel J. Cabell, Thomas Claiborne,
      William Charles Cole Claiborne, Matthew Clay, John Clopton,
      Thos. T. Davis, John Dawson, George Dent, Joseph Eggleston,
      Lucas Elmendorph, William Findlay, John Fowler, Nathaniel
      Freeman, jr., Albert Gallatin, James Gillespie, Andrew
      Gregg, John A. Hanna, Carter B. Harrison, Jonathan N.
      Havens, Joseph Heister, David Holmes, Walter Jones, Edward
      Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon,
      Blair McClenachan, Joseph McDowell, Anthony New, John
      Nicholas, Josiah Parker, Thompson J. Skinner, Samuel Smith,
      William Smith, Richard Sprigg, Richard Stanford, Thos.
      Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt,
      Joseph B. Varnum, Abraham Venable, and Robert Williams.

Mr. MCDOWELL then moved an adjournment; which was negatived--55 to 38.

The question was then taken on the second resolution, upon which the
yeas and nays were exactly the same as upon the first.

The question on the third was concurred in, 61 votes being for it.

SATURDAY, March 2.

EVENING SITTING.

_Law of Retaliation._

Mr. OTIS called the order of the day on the bill vesting the power of
retaliation, in certain cases, in the PRESIDENT OF THE UNITED STATES;
when

Mr. DENT moved to postpone the consideration of this bill until the next
session of Congress; which motion was negatived--35 to 32.

The House then went into a Committee of the Whole on this bill, and
after some discussion, and an amendment being introduced into the
preamble of the bill by Mr. DAYTON, (the Speaker,) to make it apply
generally to any acts of severity that may be committed by the French
Republic in pursuance of any violent decree, instead of applying
particularly to the decree declaring American citizens, found on board
vessels of their enemy, pirates, and liable to suffer death, the
committee rose, and the amendment was concurred in.

The question being, "Shall this bill pass?"

Mr. LIVINGSTON complained that this bill went to place the power of life
and death in the hands of the PRESIDENT, with respect to every Frenchman
in this country, in case the French Government should commit any act of
violence against one of our citizens. He doubted, indeed, whether he
would not have this power, in case of any American citizen being killed
in battle on board a British ship. The Legislature, he said, had no
right to vest this power, except in case of war; nor did he believe it
would ever be exercised, if given. And as the decree complained of had
been two years in existence without being carried into effect, he
thought there was no need now to create an alarm about it. Indeed, the
last decree having been suspended, he considered the first to be so
also.

Mr. EDMOND was sorry, at this late hour, to occupy a single moment of
the time of the House; but he found himself called upon to say a few
words. It was a painful reflection, he said, that any nation in the
world should deliberately pass a legislative act for the purpose of
authorizing the commission of murder; for the _arrêt_ of the French
Republic was nothing less than a law for putting innocent men to death.
An instance like it could not be found on record. In time of war
retaliation is found necessary to prevent the enormities of an enemy.
Indeed, the intention of retaliation is always to prevent cruelty. This
decree was said to be suspended; but if it were not intended to give it
future operation, it would have been repeated. It might be convenient to
suspend the decree for a time; but when a nation is so depraved as to
pass a decree of this kind, what security have we that the decree will
not be brought into operation in the recess of Congress. If it is not,
the present law can have no effect. Mr. E. believed no one but the
gentleman from New York could have supposed that this law was meant to
retaliate for men killed in battle. If he examines the bill, he will
find that the person must have been put to death pursuant to a decree of
the French Republic. And whilst we suffer our humanity to be touched
with respect to French citizens here, we ought not to forget American
citizens, whose blood may be spilt in France under this decree.

Mr. GALLATIN observed, that three arguments had been used in favor of
passing this bill. One of them was, that it would afford protection to
our seamen; the second, to give sufficient cause of irritation by
repelling every hostile measure of the French Government by one of a
similar nature; the third, to prevent the people of America having any
belief in either the sincerity of France or the probability of a
negotiation.

Mr. G. did not believe that this bill would give the protection expected
to our seamen; and as to the power of retaliation, well knowing, both
from the character of the PRESIDENT and the general character of
America, that retaliation would be repugnant to his feelings, and the
feelings of the public at large, he did not believe a single case would
ever happen in which it would be exercised. What, said Mr. G., would be
the degree of proof necessary to carry into effect this law? A man must
have been taken on board a British vessel, or some other vessel at war
with France, and put to death or ill-treated by the French. It must also
be proved to have been done in pursuance of a French decree. In the next
place, he must be an American citizen, and have been compelled to go on
board such ship; and Mr. G. did not know how all this information was to
come to the PRESIDENT.

If, said Mr. G., it be really our intention to give protection to our
seamen, instead of authorizing the proposed retaliation, we ought to go
to the source of the evil, and endeavor to prevent the impressment of
our seamen by the British, which alone brought them into this
situation. This bill does not comprehend any American who goes on board
of a British ship of war voluntarily; they are not entitled to our
protection by the law of nations; they must seek protection from the
country under whose flag they sail. Those American citizens only,
therefore, who have been forced on board a British ship of war, and who
have been obliged to fight their battles against their will, are by this
bill to be protected, so far as retaliation can protect them.

Mr. G. said, he had been induced to mention this point, not only because
it naturally flows from the subject, but from one of the documents which
had been submitted to the House. He alluded to Lord Grenville's letter
to Mr. King, our Minister at London. [Mr. G. read an extract of that
letter.]

Mr. G. observed, upon this document, that it contained a very
extraordinary acknowledgment. Lord Grenville says, "the King feels the
protection due to those who sail under his flag." Thereby openly
acknowledging that there are a number of American seamen who do sail
under his flag. And, as not many of our seamen had selected his service
in preference to that of their own country; as our own seamen, if left
to their choice, would sooner sail on board of our own ships than those
of His British Majesty, it is therefore an explicit avowal of the
impressment of American seamen. That identical document which
communicates the offensive decree of France, is also the occasion of
this bill.

This acknowledgment, said Mr. G., leads to more than one consequence. If
we pass this bill, it will amount to this, that knowing American seamen
were impressed by the British, the fact having been thus confessed, we
choose rather to pass a retaliatory law against the French for punishing
our seamen found in a situation into which they were arbitrarily forced
by the British, than apply a remedy to the root of the evil.

Again, another part of this letter of Lord Grenville, when connected
with this measure, made an extraordinary impression on his mind. The
acknowledgment having been made, it might have been supposed Lord
Grenville would have ordered all such American seamen to have been
released; but he does not do this, but says the King will cause
retaliation to be exercised. To do this might have some effect whilst
these men remained on board of the King's ships; it would, therefore,
increase his power, and prolong the time during which such seamen will
remain on board. But Lord Grenville does not stop here. He says, the
"King leaves it with the different powers to take measures accordingly."
So that he gives us advice what we ought to do, and we are about to do
it. Mr. G. had said, this bill was not likely to produce any effect;
yet, if it should be put in force, by referring once more to Lord
Grenville's letter, it will appear that the retaliation of which he
speaks is to be confined to French prisoners, whom the fortune of war
had thrown into the power of Great Britain; and he believed the present
law should be confined to persons who should be captured by vessels of
the United States. And it would be most effectual in this way; because
if it were to operate against other French citizens in this country, the
French Government would not be concerned about it, since ninety-nine out
of a hundred of those citizens are probably emigrants, or persons for
whose safety they have no interest.

If by meeting every hostile act of the French Government by a measure of
a similar kind, we could render this country more respectable, Mr. G.
should be in favor of it; but, in the present case, he did not think the
measure applicable. There was a great difference, he said, between
measures of hostility and retaliation. Measures of retaliation could do
no good, except as preventives; and as the decree in question had
already been two years in force without being carried into effect, it
could scarcely be expected that it would now be exercised.

It must be allowed, Mr. G. said, that some change had taken place in our
situation with respect to France; but it seemed as if gentlemen wished,
by the passing of this bill, to take off any impression of this kind
which might have been made on the people by the late appointment of
Ministers to treat with France. Mr. G. did not mean to express any
opinion on the probable issue of that nomination. He believed the
PRESIDENT had taken certain measures; and that nothing which he could do
or say would either accelerate or delay those measures. He wished to
leave them uncontrolled, to have the effect they may, whatever it may
be. Yet, in relation to what had been said with respect to Guadaloupe,
he believed that captures had taken place; yet, when we speak of
information, there was a letter written by one of the commanders of our
vessels, which says, that a number of vessels go there for the purpose
of being taken, in order to carry on a trade contrary to the laws of the
United States. [The SPEAKER called to order.] Mr. G. said he was about
to conclude. He considered this bill as calculated to have but little
effect, and had it not been for the arguments of the gentleman from
Massachusetts, he should have been at a loss to have known for what
reason it was passed.

Mr. DANA said, "with what measure you mete, the same shall be measured
to you again," was a doctrine long since established. It was a doctrine
which injured man had assumed in all countries, and the justice of which
had been universally admitted.

An appeal to this national sentiment, and to the writers on this
subject, would be a sufficient answer to the gentleman's humanity for
Frenchmen, to the forgetfulness of his fellow-citizens.

The general principles of the law are too just to be questioned. The
gentleman from Pennsylvania, well knowing that the national feelings of
man must approve of the principle, undertakes to distinguish away the
subject. Instead of coming forward to the point, he has gone into
complaints against British inhumanity. But why speak of British
inhumanity, if not to embarrass this bill? This bill is intended against
the French nation. If the gentleman wished a similar law against the
British, neither he nor his followers could be suspected of any
attachment to that nation, which would have prevented him or them from
bringing forward such a measure. The gentleman knew such a measure would
be embarrassed with difficulties; and, if it failed, it would deprive
him of the argument he now makes use of. Shall we, said Mr. D., because
our seamen have been first injured by Great Britain, when France uses
them still worse, abandon them? Because they have been once injured with
impunity, shall we turn our backs upon them for ever? The doctrine is
too inhuman, too absurd, to be countenanced.

The gentleman from Pennsylvania assigns another reason against this
bill. To make it effectual he says certain information must be given to
the PRESIDENT, viz: that the person ill-treated is an American seaman;
and that he has received his ill-treatment in pursuance of a decree of
the French Government. Has the gentleman to learn that, when the
officers of the French Government do an act of violence, which the
principles of humanity and the law of nations condemn, if the nation
does not punish its officers for the act, it must be done in pursuance
of the orders of Government?

The gentleman's other objection was honorable to Americans. It was that
the humanity of the PRESIDENT, and of the people of this country, would
not suffer the law, if passed, to be carried into effect. Mr. D. said it
was difficult to reason on this subject, but, admitting the fact, it
affords a decisive proof that this power will never be abused, and at
the worst, the law could only be ineffectual, and it might have the good
effect of preventing the unprincipled murder of our countrymen.

The gentleman from Pennsylvania had said that the decree of the British
Cabinet might have had some effect in procuring a suspension of the
decree of the Executive Directory.

[Mr. GALLATIN denied having said that the French Government had
suspended their decree on account of the threats of the British. Mr.
King's first letter is dated the 27th of November, and his second,
mentioning the suspension of the decree, the 28th, so that that was
impossible.]

The gentleman has taken an opportunity of referring to the note of Lord
Grenville. If the gentleman was disposed to make a philippic against
Lord Grenville, Mr. D. said, he had no reason to vindicate him; but,
when the gentleman went so far beside the question to do it, it showed
he had little respect for his audience. But the gentleman from
Pennsylvania was certainly incorrect, when he said the note of Lord
Grenville was a direct admission that impressed American seamen were
held on board the British fleet. He would state a case in which American
seamen would be liable to the effects of the French decree, where the
British Government could not be censurable. Suppose an American vessel
captured and plundered by the French, and some of our seamen, to escape
the severities of a French dungeon, had escaped and got on board of a
British ship of war, hoping by that means, in time, to get to their own
country. Such cases, he had no doubt, had happened, and in such, the
gentleman must allow, our citizens must be liable to suffer as pirates,
without any blame resting on the conduct of the British.

Mr. OTIS said, it had been so long unfashionable to vindicate the
conduct of France, or to make apologies in her behalf, that those who
now wished to do it, attempt to excite hatred against another nation.
The gentleman from Pennsylvania has gone altogether upon this principle.
He has said but little against the principle of the bill. His only
objection to it was that it was not sufficiently extensive. Admitting
the injuries to exist with respect to Great Britain, and that many of
our seamen have been impressed by them, did the gentleman wish us to
retaliate by impressing British seamen? No, he would be the first to
oppose such a law; and yet this is the only just kind of retaliation
that could be adopted, for he would not wish us, because the British
have impressed our seamen, to put the first British subject we meet to
death; and to talk of impressing their seamen, would be perfectly
ridiculous.

It was not incumbent upon him, Mr. O. said, to enter into any argument
to distinguish between the injuries which we have received from the
French and British Governments, nor to palliate the conduct of any
nation which has done us wrong; but when things perfectly clear are
violently distorted, to excite undue prejudices, with a view of
diverting the attention of the House from the subject before them, it
becomes necessary to notice the attempt. Let it be granted that Great
Britain impresses our seamen; she renounces every right to do so. She
perseveres, it is true, in her right to reclaim her own seamen from on
board our vessels, and in making this claim, some abuses may have taken
place.

If the gentleman from Pennsylvania had seen fit to do justice to Lord
Grenville, he would have turned to another document laid before Congress
by the Secretary of State last year, wherein he says that Great Britain
had never assumed the principle of impressing American seamen. His
friend from South Carolina (Mr. PINCKNEY) affirmed what he said, and
showed that the great difficulty was in preventing false passports from
being given. This was verified in the conduct of Captain Loring and the
Baltimore sloop of war. The difference, Mr. O. said, between the conduct
of France and Great Britain towards us was palpable. Great Britain
never refused to rectify grievances; she never heaped outrages upon us.
If she had, he should have been for vengeance and war against that
country, and the cry would certainly have been echoed by the gentleman
from Pennsylvania.

Mr. O. said he disdained that sort of sensibility which his friend from
Connecticut (Mr. DANA) seemed to think redounded to the honor of the
people of this country. He owned it would not wound his feelings, in the
smallest degree, to see the law of retaliation executed upon any French
citizen in America. If one American citizen fell a sacrifice to the
decree of France, it would altogether absorb his sympathies for
Frenchmen. There is a French citizen, said he, now living in the
neighborhood of New York, who originally came here as Ambassador from
the French Republic; and I must say that I should not feel the least
sensibility if he should fall a victim to this law! Indeed, there were
French citizens enough on whom to execute the law; though he joined
gentlemen on all sides of the House in hoping that there would be no
occasion to carry it into effect.

The gentleman from New York says that a law of this kind ought not to be
passed, except in time of war; and yet, said Mr. O., the gentleman will
not let us go to war, and in the mean time our citizens may suffer with
impunity under the bloody decrees of France. But he believed Congress
had clearly the power, from those words of the constitution which say,
"they shall grant letters of marque and reprisal"--reprisal, doubtless,
not only against ships, but against property and persons, to pass a law
of this kind. Mr. O. thought it necessary, therefore, to show to the
French Republic that we are not negotiating through fear; that we are
desirous of keeping peace with all the world, so long as we can do it
consistent with our honor and independence; but no longer.

Mr. S. SMITH wished to have postponed this bill till the next session.
He thought it improper as it originally stood; as the decree which was
passed two years ago was never acted upon. Indeed he had somewhere seen
that American seamen were released on application of Mr. Skipwith, our
Consul in France. The bill, as amended, is far less objectionable, yet
he wished it were postponed till next session, because he never wished
to see a law of this kind on our code. He agreed with the gentleman from
Connecticut that it was legalizing murder.

Mr. S. believed the gentleman from Massachusetts mistaken in many
respects. He himself believed France was disposed to make peace. Mr. S.
proposed an amendment to the bill confining the retaliation to persons
captured in pursuance of any of the laws of the United States. If this
amendment was agreed to, the bill would be less exceptionable; for,
though the gentleman from Massachusetts had said he should not regret
the murder of any French citizen, under this law, nothing surely but the
heat of argument could have led him to say this; he must own he should:
nor did he believe that that gentleman, or any other, could lay hold of
an unfortunate Frenchman, and put him to death, though one of our
citizens might have suffered unjustly and cruelly in France.

The amendment was carried.

Mr. MACON did not wish to see this law in our code. In his opinion
nothing but the utmost necessity ought to induce us to pass it. Nor
could he believe that the gentleman from Massachusetts could see any
man, even if taken in arms, put to death in cold blood! Though it might
be right to punish those who passed the decree, if they could be laid
hold of, it was a mournful thing to retaliate upon innocent persons the
offences of the guilty.

The gentleman from Connecticut had quoted a scriptural passage--"With
the same measure that you mete, the same shall be measured unto you." In
the same volume, Mr. M. said, he would also find, "Do unto others as ye
would they should do unto you;" and a law of this kind could not be
justified upon the latter principle.

It is said we ought to show that we do not act from fear. He thought
this one of the last measures the House should pass to evince that. Mr.
M. hoped, that on the last evening of the session, a bill of this kind
would not be pressed. The members had heretofore been accustomed to part
in good humor, at the close of the session, however they might have
differed in the course of it. He hoped they should not now depart from
this custom. He therefore moved to postpone the bill till next session.

The question for postponement was negatived--48 to 37.

After a few observations from Mr. MCDOWELL, against the bill, it was
ordered to be read a third time and passed--yeas 56, nays 30.

A motion was made by Mr. LIVINGSTON, to adjourn till ten in the morning,
as it would be impossible to get through the business to-night, and he
understood the Senate were about to adjourn to that time.

Mr. DANA proposed to adjourn till seven in the evening; but that motion
being negatived, the House adjourned till ten o'clock on Sunday morning.

SUNDAY MORNING, March 3.

Several reports were made by the Committee of Enrolment, and sundry
messages communicated from the Senate relative to the bills in their
passage.

_Vote of Thanks._

Mr. CHAMPLIN rose and addressed the House as follows:

"Sensible as I am of the importance of the duties that at all times
attach to a gentleman who presides over the deliberations of this
assembly, and more especially in times of imminent danger; impressed
with the able and honorable manner in which those duties have been
discharged by the gentleman who now fills the chair; and believing the
sentiments I entertain on this occasion to be in perfect unison with
those of every member of this House--I beg leave to submit a resolution
expressive of the sense of the House on this subject:"

He then moved the following resolution:

      "_Resolved_, That the thanks of this House be presented to
      Jonathan Dayton, in testimony of their approbation of his
      conduct in discharging the arduous and important duties
      assigned him whilst in the chair."

This motion was received by the Clerk, and the question being put upon
it by him, there appeared for it 40, against it 22.

The resolution being carried, the SPEAKER rose and addressed the House
as follows:

      No language, gentlemen, can do justice to those feelings
      which this second vote of approbation of my conduct, after
      four years' presidency in the House of Representatives, has
      excited in my breast. It would be unjust in me not to
      acknowledge, that to the support uniformly afforded, and to
      the confidence unremittedly reposed in me, rather than to
      any merit of my own, is to be ascribed the success with
      which you are pleased to declare that the duties of the
      chair have been executed.

      Permit me to say, that far from being displeased, I have,
      on the contrary, been very much gratified at hearing that
      the resolution of thanks has not been passed, as a mere
      matter of form, unanimously. As in all public bodies, there
      have ever been found men whose approbation must be
      considered by the meritorious as a censure, so in this
      body, there are, unhappily, some whose censure will be
      regarded by all whose esteem I value, as the highest
      testimony of merit. About to abandon the seat which I have
      held in this branch of the General Legislature for eight
      successive years, I take advantage of the moment which
      precedes our separation to bid you, gentlemen, an
      affectionate farewell.

Mr. MACON moved the usual resolution appointing a joint committee with
the Senate, to inform the PRESIDENT, that Congress is ready to adjourn
without day, unless he has any further communication to make them; which
being agreed to, Messrs. OTIS, MACON, and BROOKS, were appointed a
committee on the part of this House.

Mr. OTIS, from the committee appointed to wait upon the PRESIDENT,
informed the House that they had performed that service; and he informed
them "that he had no further communication to make, except to express
his wish for the health and happiness of the members, and a pleasant
journey home to their families and friends."

The SPEAKER then adjourned the House without day.

NOTE.

The fifth Congress, the first under the administration of Mr. John
Adams, was wholly occupied with measures of defence against France, and
incurred debt and taxes in these preparations which greatly impaired its
popularity, and contributed to the overthrow of the federal party: but
there was great necessity for these exertions at that time, and both
national honor, and national interest, and national safety required them
to be made. Besides the insults which went to our honor, and the
depredations which affected our commerce, there were threats of attack
and invasion not to be despised. The Directory, inflated with the
successes of Buonaparte in Italy, with the subjugation of several small
powers, the transformation of several principalities and kingdoms into
republics, the peace with the Emperor of Germany, the neutralization of
some kingdoms and the alliance of others: exalted with so much success,
and anxious to bring the United States into their system and especially
into the war with Great Britain, had recourse to all the means of
accomplishing its purpose--first, by entreaties; afterwards by insults
and outrages; and finally by threats of war. It is difficult for general
history to give a view of these proceedings, and it is only in
contemporary sources that they can be adequately studied. The Debates of
Congress are one, and the largest one, of these sources; documents on
which the debates are founded are another: and it is often desirable, in
after time, to produce these documents in greater extent than used in
the debate. That is the case with these debates on French affairs during
the time of which we speak, and the communications of our Ministers sent
to Paris furnish the documentary evidence necessary to complete
them--evidence too well known to require copious quotation at the time,
but now little known to the subsequent generation. This note then, in
the nature of an appendix to the debates of the fifth Congress, will
contain extracts from the dispatches of the Ministers of that day: and
first of General Pinckney.

Arriving at Paris the 5th of December 1796, he immediately waited on the
Minister of Exterior Relations (Citizen Charles De la Croix) in company
with Mr. Monroe, according to an appointment previously made, and had an
interview with him; of which he gives this account in a dispatch to Mr.
Pickering, Secretary of State: (_Extracts only are given._)

      Mr. Monroe and myself, with my secretary, Major Rutledge,
      about two o'clock, waited upon M. De la Croix, and I was
      introduced by Mr. Monroe as the person appointed as his
      successor. The Minister at first received us with great
      stiffness, but afterwards, on our conversing on some
      general subjects, he unbent and behaved with civility; and,
      on receiving the official copies of our letter of credence
      and recall, said he would deliver them, without delay, to
      the Directory. He desired Major Rutledge to let him have
      our names of baptism, and our ages, that cards of
      hospitality might be made out, which he said were necessary
      to reside here unmolested. This requisition was immediately
      complied with, and he promised to send the cards the next
      morning. When this interview was known, the reports which
      had been spread abroad before my arrival, of my not being
      received by the Directory, vanished, and the general idea
      seemed to be that there would be no objection to receive me
      as Minister from America. At 11 o'clock, on Monday,
      December 12, Mr. Prevost (Mr. Monroe's secretary) called
      upon me, and told me that Mr. Monroe had just received a
      letter from M. De la Croix, and desired to know if I had
      received one. I said no. He then showed me M. De la Croix's
      to Mr. Monroe, which was as follows: [_Date, Dec. 9._

      CITIZEN MINISTER: I hasten to lay before the Executive
      Directory the copies of your letters of recall, and of the
      letter of credence of Mr. Pinckney, whom the PRESIDENT OF
      THE UNITED STATES has appointed to succeed you, in the
      quality of Minister Plenipotentiary of the United States
      near the French Republic. The Directory has charged me to
      notify you "that it will not acknowledge nor receive
      another Minister Plenipotentiary from the United States,
      until after the redress of the grievances demanded of the
      American Government, and which the French Republic has a
      right to expect from it." [_Date, Dec. 11._

I waited until next morning, expecting to receive a notification from M.
De la Croix, when, not hearing from him, I wrote him the following
letter:

      CITIZEN MINISTER: Colonel Monroe has been so good as to
      communicate to me your letter to him of the 21st Frimaire,
      wherein you inform him that you had submitted to the
      Executive Directory his letters of recall, and my letters
      of credence as Minister Plenipotentiary from the United
      States of America, and that the Directory had instructed
      you to notify him "qu'il ne reconnoitra et ne recevra plus
      de Ministre Plenipotentiaire des Etats Unis jusqu'après le
      redressement des griefs demandé au Gouvernement Americain,
      et que la République Françoise est en droit d'en attendre."
      [That it will not acknowledge nor receive any Minister
      Plenipotentiary from the United States, until after the
      redress of the grievances demanded of the American
      Government, and which the French Republic has a right to
      expect from it.] This communication has filled me with real
      sorrow, as I am thoroughly convinced that the sentiments of
      America and its Government--for they are one--are
      misunderstood, and that I am not permitted even to attempt
      to explain them, or, in the terms of my letters of
      credence, to endeavor "to efface unfavorable impressions,
      to banish suspicions, and to restore that cordiality which
      was at once the evidence and pledge of a friendly union."
      Devoted, as I am, to the liberty, prosperity, and
      independence of my own country, the freedom, happiness, and
      perfect establishment of the French Republic, have always
      been dear to me, and to have been instrumental in cementing
      the good understanding which, from the commencement of
      their alliance, has subsisted between the two nations,
      would have been the height of my ambition. I most fervently
      pray that there may be a speedy and candid investigation of
      those points in which you differ from us, that affection
      may banish distrust, and that the alliance of the two
      Republics may be perpetual.

      In your letter to Colonel Monroe you do not desire him to
      make any communication to me, and I am indebted to his
      politeness for the knowledge I have of the intentions of
      the Directory. I submit to you, citizen Minister, that, as
      the letters of recall had been received by Mr. Monroe, and
      official copies of his letters of recall, and my letters of
      credence, had been delivered to you, that the sentiments of
      the Directory should be communicated by you immediately to
      me, that I may, without delay, transmit them as from the
      Executive of this Republic to the Government of the United
      States; and that I may be informed by you, whether it is
      the intention of the Directory that I should immediately
      quit the territories of the Republic, or whether I and my
      family may remain until I hear from my Government. As I
      have not received the cards which, in your interview, you
      said I ought to possess in order to enable me to reside
      here, and that they should be transmitted to me next
      morning, I am the more doubtful on this subject than I
      should otherwise be. Accept my best wishes. [_Dec. 13._

This letter I sent by Major Rutledge, who delivered it to M. De la
Croix, and made the following report of what passed between them, which
he immediately reduced to writing:

      "I this day waited upon M. De la Croix, the Minister for
      Foreign Affairs, at two o'clock, as bearer of a letter from
      General Pinckney. I was admitted immediately on sending in
      my name, and delivered the letter. Having informed him from
      whom it came, and that there was a French translation
      annexed, he opened it and proceeded to read the letter in
      my presence, which, when he had finished, he desired me to
      return to General Pinckney as his answer: That the
      Executive Directory knew of no Minister Plenipotentiary
      from the United States of America, since the presentation
      of Mr. Monroe's letters of recall, and that the Executive
      Directory had charged him to notify to Mr. Monroe (here he
      read the quotation contained in the letter) qu'il ne
      reconnoitra et ne recevra plus de Ministre Plenipotentiaire
      des Etats Unis, jusqu'après le redressement des griefs
      demandé au Gouvernement Americain, et que la République
      Françoise est en droit d'en attendre. Which notification
      the Directory relied upon Mr. Monroe's imparting to his own
      Government, as well as communicating to General Pinckney."

      On the 25th of Frimaire, (15th of December,) about three
      o'clock in the afternoon, a Mr. Giraudet called on me, and
      said he was chief secretary in the Department of Foreign
      Affairs; that he came on the part of the Minister of
      Foreign Affairs, to signify to me that, with respect to my
      letter to him, (which he produced, together with the
      translation,) he could not directly communicate with me on
      it, as such direct communication would be acknowledging me
      as Minister, when the Directory had determined not to
      receive me; that, as to the other part of my letter,
      relative to remaining here, that he supposed I was
      acquainted with the laws of France, as they applied to
      strangers. I told him that I was not acquainted with the
      local laws of the Republic; he said that there was a
      decree which prevented all foreigners from remaining at
      Paris without particular permission, which, as the
      Directory did not mean to grant to me, of course the
      general law would operate. I answered, that I could not
      conceive the having a direct communication with me would
      involve the consequences he stated; that if Mr. Monroe had
      died before my arrival, the information that they would not
      acknowledge me, must, of course, have been made to myself.
      Mr. Monroe having received his letter of recall from our
      Government, could not now act officially any more than if
      he had ceased to exist; that I was indebted to Mr. Monroe's
      politeness for the information I had received of the
      intention of the Directory not to acknowledge me, but that
      he had not intended it as an official communication. That,
      with regard to the laws of France relative to strangers,
      the law which he had cited did not apply to the requisition
      of my letter, which was to know whether it was the
      intention of the Directory that I should quit the
      territories of the Republic; or whether I might remain here
      until I should hear from my Government. He said he rather
      believed that it was the intention that I should quit the
      territories of the Republic; but, as it admitted of a
      doubt, he would mention it to the Minister, with whom he
      was to dine, and acquaint me with the result in the
      evening. I told him I should be obliged to him, should it
      be the intention of the Directory that I should quit the
      Republic, to inform me in what time I was to set out, as my
      baggage was not arrived from Bordeaux; that I meant not to
      ask any personal favor, but to have the intention of the
      Directory clearly expressed, as it related to me, in the
      situation in which I came to France. He said he would, and
      expressed a regret at being the bearer of disagreeable
      information, and then departed. His behavior and manners
      were very polite.

      In the evening, about eight o'clock, he returned, and
      informed me that, in answer to the doubt which had been
      entertained in the morning, (a doubt, he observed, which
      had proceeded from his own inattention to the words of M.
      De la Croix,) the Minister could only reply that he
      understood the Directory to mean the territory of the
      Republic, and not Paris alone, which was to be quitted;
      that as to the time in which it was necessary to depart,
      the Minister could not designate it, but that he would have
      another communication with the Directory, and that their
      intentions should be made known to me in a more explicit
      manner upon both points; that, at the same time, he must
      inform me that, in all probability, M. De la Croix would
      not be the organ through which they would be addressed, as
      the Minister of the _Police Générale_ would be the officer
      under whose department my case would come. I replied that I
      apprehended M. De la Croix was the proper organ through
      which information should come to me, as he knew the
      capacity in which I had come to France; whereas, the
      Minister of Police might regard me as a mere stranger, and
      throw me into confinement; that it was in the power of the
      Directory to receive me, or not: but they could not divest
      themselves of the knowledge which they had of the public
      character in which I came to France; and that, in that
      character, I was entitled to the protection of the laws of
      nations, whether the Directory received me or not. If they
      permitted me to remain until I heard from my Government, I
      was under the protection of those laws; if they ordered me
      to quit the territories of the Republic, I was still
      entitled to letters of safe conduct, and passports on my
      journey out; that this was the case even with Ministers of
      belligerent powers, much more ought it to apply between us,
      who were at peace. Since this conversation, I have not
      heard from the Directory, or any of the Ministers or their
      agents. My situation, as you may easily conceive, is
      unpleasant; but if I can ultimately render any services to
      my country, I shall be fully compensated: at all events, it
      shall be my study to avoid increasing the discontent of
      this Government, without committing the honor, dignity, and
      respect due to our own. Should I fail in doing this, or
      should I err in the measures I pursue to accomplish it, the
      failing will not be in my zeal, but should be charged to my
      want of ability. At present, I think the ground I have
      taken has puzzled them: they wish me gone, but they
      apprehend that it would be too harsh a measure to send off,
      in a peremptory manner, the Minister of my country; though
      there is no saying what their conduct will ultimately be,
      as I am informed that they have already sent off thirteen
      foreign Ministers: and a late emigrant, now here, has
      assured them that America is not of greater consequence to
      them, nor ought to be treated with greater respect, than
      Geneva or Genoa. Those who regard us as being of some
      consequence, seem to have taken up an idea that our
      Government acts upon principles opposed to the real
      sentiments of a large majority of our people, and they are
      willing to temporize until the event of the election of
      President is known; thinking that, if one public character
      is chosen, he will be attached to the interest of Great
      Britain; and that, if another character is elected, he will
      be (to use the expression of Du Pont de Nemours, in the
      Council of Ancients) devoted to the interest of France;
      entertaining the humiliating idea that we are a people
      divided by party, the mere creatures of foreign influence,
      and regardless of our national character, honor, and
      interest.

      I have seen Mr. Monroe very often since my arrival: his
      conduct has been open and candid, and I believe he has made
      me every communication which he thought would be of service
      to our country. He undoubtedly felt himself hurt at his
      being superseded; but I am convinced he has not, on that
      account, left any thing undone which he thought would
      promote the objects of my mission. The Directory and
      Ministers had, for some time before they were informed of
      his removal, treated him with great coolness; but as soon
      as they heard of his recall, their attentions to him were
      renewed. Should this Government attempt to make any further
      communications to me, through him, he has promised me to
      inform them that he cannot comply with their desire, as his
      powers have ceased. I remain, with great respect, &c.
      [_Dec. 15._

Major Rutledge having called on the Minister of Exterior Relations on
another affair, and finished, inquired of the Minister if he had heard
any thing further from the Directory, in relation to General Pinckney's
remaining where he was:

      "He answered, with marks of great surprise, that he thought
      he had already explained himself with sufficient clearness
      on the subject; that he had signified to General Pinckney,
      long since, the impossibility of his staying; that he
      thought he had exercised much "condescendance" in having
      been so long silent; which he had been induced to do by
      General Pinckney's having complained of the delay of his
      baggage, which, he supposed, must, by this time, have
      arrived from Bordeaux; that, in short, he should be sorry
      if his further stay should compel him to give information
      to the Minister of the Police. To this I replied, that
      General Pinckney had refused to regard himself in any other
      light than the one in which he had entered France, which
      had not been in a private capacity, but in a public
      character; which circumstance had been officially announced
      to the Directory, by his having delivered to the Minister
      of Foreign Affairs a copy of his letters of credence and by
      other acts. That this precluded all laws relative to
      strangers from operating on him, and put him under the
      protection of the law of nations, which he claimed in his
      favor. That Mr. Giraudet had taken leave with a promise to
      communicate to the Minister of Foreign Affairs the ground
      which General Pinckney had taken. That he returned again in
      the evening, and then said, that the Minister would again
      lay General Pinckney's letter before the Directory, and
      that their intentions should be made known to him as soon
      as possible. All this had, no doubt, been faithfully
      related to him by his secretary. He answered that General
      Pinckney must have mistaken Mr. Giraudet as to his
      intention of again laying his letter before the Directory.
      I told him that it was impossible; for that I had been
      present at both conversations, in which the material points
      had passed in English, and been repeated in French. He then
      said Mr. Giraudet had acted without his authority. I
      replied, that General Pinckney had, however, waited until
      this moment in expectation of hearing from him, agreeably
      to Mr. Giraudet's promise; that he was very far from
      intending to dispute the will of the Executive Directory;
      what he wanted was a communication of their wishes in
      writing. He said that it had already been given. I desired
      to know when; he answered in the notification which he had
      made, by their order, to Mr. Monroe; that it had contained
      their sentiments on Mr. Pinckney's staying, inasmuch as
      that his not being received, implied that he should depart.
      I denied that it was a fair deduction; he insisted that it
      was; I declared that it had not struck General Pinckney or
      any person with whom he had conversed; but that, however,
      if such was the construction which he had put upon it, I
      flattered myself that he could have no objection to
      throwing his idea upon paper, that General Pinckney might
      have something more substantial, than the authenticity of
      the word of his secretary to justify himself to his own
      Government, for quitting a spot to which he had come in
      obedience to their orders. The Minister here turned from me
      with some warmth, and said that he should do no such thing;
      that General Pinckney might make his own deductions; he
      desired to have no more communication with him. I only
      replied by a bow, satisfied to end a conversation which had
      already lasted near half an hour; during which I had not
      been admitted to the honor of a seat." [_Dec. 26._

The written order to quit the territory of the Republic did not come:
General Pinckney would not depart without it: the _Police Générale_ did
not molest him; two months elapsed, when Buonaparte having gained a
great victory over the Austrians in Italy, the day after the arrival of
the news of it in Paris, he received the following notification from the
Minister, De la Croix:

      "The Executive Directory has charged me to make known to
      you, that not having obtained special permission to reside
      at Paris, you are amenable to the law which obliges
      foreigners to quit the territory of the Republic. I had
      the honor of informing you near two months ago, by the
      principal Secretary of my department, of the intentions of
      the Government in this respect. I cannot dispense with
      notifying you of them to-day. Receive, sir, &c." [_Feb. 1,
      1797._

To which General Pinckney immediately returned this answer:

      CITIZEN MINISTER: I did not receive, until 3 o'clock
      to-day, your note in date of the 6th inst., informing me
      that the Directory had charged you to acquaint me, that not
      having obtained particular permission to reside at Paris, I
      was subject to the law which obliged strangers to quit the
      territory of the Republic. I intimated to you some time
      since, by the Secretary General of your department, and by
      Major Rutledge, my Secretary, that I deemed a notification
      of this sort, in writing, from you necessary, previous to
      my departure. Having now received it, I shall, without
      delay, prepare to go, and, in the meanwhile, will be
      obliged to you for the necessary passports for myself and
      family, with our baggage, to quit the Republic, in my way
      to Holland. Accept, citizen Minister, &c.

This notification was addressed to "_Mr. Pinckney, Anglo-American_,"
upon which designation of his nationality, and the supposed motives for
giving the order to depart so suddenly after having been so long
delayed, General Pinckney remarks:

      I should have made some observation on being termed
      Anglo-American, but, on inquiry, I found it was customary
      to call all my countrymen so, to distinguish us from the
      inhabitants of St. Domingo and the other French West India
      islands. I have received my passports, and shall, in two
      days, set out for Amsterdam. I know not what has occasioned
      this determination of the Directory after having permitted
      me to remain here so long a time from their refusal to
      acknowledge me. You will judge whether the answer of the
      Senate and the House of Representatives to the President's
      Speech, and the late successes in Italy have not concurred
      to occasion it. Mr. De la Croix assured Major Rutledge,
      that he acted by the express orders of the Directory in
      this particular, and not from himself.

General Pinckney remained in Holland till the autumn of '97, when
_Messrs._ Marshall and Gerry were joined with him in an extraordinary
mission, and all three proceeded to Paris. Arrived there, they asked an
interview with the Minister of Foreign Relations, now changed to the
astute and supple Talleyrand--obtained it--and thus describe it in their
dispatch to Mr. Pickering, the Secretary of State:

      The Minister, we found, was then engaged with the
      Portuguese Minister, who retired in about ten minutes, when
      we were introduced and produced the copy of our letters of
      credence, which the Minister perused and kept. He informed
      us "that the Directory had required him to make a report
      relative to the situation of the United States with regard
      to France, which he was then about, and which would be
      finished in a few days, when he would let us know what
      steps were to follow." We asked if cards of hospitality
      were in the mean time necessary? He said they were, and
      that they should be delivered to us; and he immediately
      rung for his secretary and directed him to make them out.

This interview with Talleyrand being over, a game of intrigue,
impudence, venality and corruption was immediately commenced upon the
American Ministers, by the intimates and agents of Talleyrand, which has
but few parallels in history, and of which they give this account:

      On Saturday, the 14th, Major Mountflorence (U. S. Consul
      General in Paris,) informed General Pinckney that he had a
      conversation with Mr. Osmond, the private and confidential
      secretary of the Minister of Foreign Affairs, who told him
      that the Directory were greatly exasperated at some parts
      of the President's Speech at the opening of the last
      session of Congress, and would require an explanation of
      them from us. The particular parts were not mentioned. In
      another conversation on the same day, the secretary
      informed the Major that the Minister had told him it was
      probable we should not have a public audience of the
      Directory till such time as our negotiation was finished;
      that probably persons might be appointed to treat with us,
      but they would report to him, and he would have the
      direction of the negotiation. The Major did not conceal
      from Mr. Osmond his intention to communicate these
      conversations to us.

      In the morning of October the 13th, Mr. W., of the house of
      ----, called on General Pinckney and informed him that a
      Mr. X., who was in Paris, and whom the General had seen, *
      * * * was a gentleman of considerable credit and
      reputation, * * * * and that we might place great reliance
      on him.

      In the evening of the same day, Mr. X. called on General
      Pinckney, and after having sat some time, * * * * whispered
      him that he had a message from M. Talleyrand to communicate
      when he was at leisure. General Pinckney immediately
      withdrew with him into another room; and when they were
      alone, Mr. X. said that he was charged with a business in
      which he was a novice; that he had been acquainted with M.
      Talleyrand, * * * * and that he was sure he had a great
      regard for [America] and its citizens; and was very
      desirous that a reconciliation should be brought about with
      France; that, to effect that end, he was ready, if it was
      thought proper, to suggest a plan, confidentially, that M.
      Talleyrand expected would answer the purpose. General
      Pinckney said he should be glad to hear it. Mr. X. replied
      that the Directory, and particularly two of the members of
      it, were exceedingly irritated at some passages of the
      President's Speech, and desired that they should be
      softened, and that this step would be necessary previous to
      our reception. That, besides this, a sum of money was
      required for the pocket of the Directory and Ministers,
      which would be at the disposal of M. Talleyrand; and that a
      loan would also be insisted on. M. X. said if we acceded to
      these measures, M. Talleyrand had no doubt that all our
      differences with France might be accommodated. On inquiry,
      M. X. could not point out the particular passages of the
      speech that had given offence, nor the quantum of the loan,
      but mentioned that the douceur for the pocket, was twelve
      hundred thousand livres, about fifty thousand pounds
      sterling. General Pinckney told him, that his colleagues
      and himself, from the time of their arrival here, had been
      treated with great slight and disrespect; that they
      earnestly wished for peace and reconciliation with France;
      and had been entrusted by their country with very great
      powers to obtain these ends on honorable terms; that, with
      regard to the propositions made, he could not even consider
      of them before he had communicated them to his colleagues;
      that, after he had done so, he should hear from him. After
      a communication and consultation had, it was agreed that
      General Pinckney should call on M. X. and request him to
      make his propositions to us all: and, for fear of mistake
      or misapprehension, that he should be requested to reduce
      the heads into writing. Accordingly, on the morning of
      October 19, General Pinckney called on M. X., who consented
      to see his colleagues in the evening, and to reduce his
      propositions to writing. He said his communication was not
      immediately with M. Talleyrand, but through another
      gentleman in whom M. Talleyrand had great confidence. This
      proved afterwards to be M. Y.

      At six in the evening, M. X. came and left with us the
      first set of propositions, which, translated from the
      French, are as follows: "A person who possesses the
      confidence of the Directory, on what relates to the affairs
      of America, convinced of the mutual advantages which would
      result from the re-establishment of the good understanding
      between the two nations, proposes to employ all of his
      influence to obtain this object. He will assist the
      Commissioners of the United States in all the demands which
      they may have to make from the Government of France,
      inasmuch as they may not be contradictory to those which he
      proposes himself to make, and of which the principal will
      be communicated confidentially. It is desired that, in the
      official communications, there should be given a softening
      turn to a part of the President's Speech to Congress, which
      has caused much irritation. It is feared, that in not
      satisfying certain individuals in this respect, they may
      give way to all their resentment. The nomination of
      Commissioners will be consented to on the same footing as
      they have been named in the treaty of America with England,
      to decide on the reclamations which individuals may make on
      the Government of France, or on French individuals. The
      payments which, agreeably to the decisions of the
      Commissioners, shall fall to the share of the French
      Government, are to be advanced by the American Government
      itself. It is desired that the funds which, by this means,
      shall enter again into the American trade, should be
      employed in new supplies for the French colonies.
      Engagements of this nature, on the part of individuals
      reclaiming, will always hasten, in all probability, the
      decisions of the French Commissioners; and, perhaps, it may
      be desired that this clause should make a part of the
      instructions which the Government of the United States
      should give to the Commissioners they may choose. The
      French Government desires, besides, to obtain a loan from
      the United States; but so that that should not give any
      jealousy to the English Government nor hurt the neutrality
      of the United States. This loan shall be masked by
      stipulating, that the Government of the United States
      consents to make the advances for the payment of the debts
      contracted by the agents of the French Government with the
      citizens of the United States, and which are already
      acknowledged, and the payment ordered by the Directory,
      without having been yet effectuated. There should be
      delivered a note to the amount of these debts. Probably
      this note may be accompanied by ostensible pieces, which
      will guarantee to the agents the responsibility of the
      United States, in case any umbrage should cause an inquiry.
      There shall also be first taken from this loan certain
      sums for the purpose of making the customary distributions
      in diplomatic affairs." The person of note mentioned in the
      minutes, who had the confidence of the Directory, he said,
      before us all, was M. Talleyrand. The amount of the loan he
      could not ascertain precisely, but understood it would be
      according to our ability to pay. The sum which would be
      considered as proper, according to diplomatic usage, was
      about twelve hundred thousand livres. He could not state to
      us what parts of the President's speech were excepted to,
      but said he would inquire and inform us. He agreed to
      breakfast with Mr. Gerry the morning of the 21st, in order
      to make such explanations as we had then requested, or
      should think proper to request; but, on the morning of the
      20th, M. X. called, and said that M. Y., the confidential
      friend of M. Talleyrand, instead of communicating with us
      through M. X., would see us himself and make the necessary
      explanations. We appointed to meet him the evening of the
      20th at seven o'clock, in General Marshall's room. At
      seven, M. Y. and M. X. entered; and the first mentioned
      gentleman, being introduced to us as the confidential
      friend of M. Talleyrand, immediately stated to us the
      favorable impression of that gentleman towards our
      country--impressions which were made by the kindness and
      civilities he had personally received in America. That,
      impressed by his solicitude to repay these kindnesses, he
      was willing to aid us in the present negotiation by his
      good offices with the Directory, who were, he said,
      extremely irritated against the Government of the United
      States, on account of some parts of the President's speech,
      and who had neither acknowledged nor received us, and
      consequently have not authorized M. Talleyrand to have any
      communications with us. The minister therefore could not
      see us himself, but had authorized his friend M. Y. to
      communicate to us certain propositions, and to receive our
      answers to them; and to promise, on his part, that if we
      would engage to consider them as the basis of the proposed
      negotiation, he would intercede with the Directory to
      acknowledge us, and to give us a public audience. M. Y.
      stated to us explicitly and repeatedly, that he was clothed
      with no authority; that he was not a diplomatic character;
      that he was not * * * * he was only the friend of M.
      Talleyrand, and trusted by him: that, with regard to
      himself, he had * * * and he earnestly wished well to the
      United States.

      On reading the speech (Mr. Adams' to Congress,) M. Y.
      dilated very much upon the keenness of the resentment it
      had produced, and expatiated largely on the satisfaction he
      said was indispensably necessary as a preliminary to
      negotiation. "But, said he, gentlemen, I will not disguise
      from you that this satisfaction being made, the essential
      part of the treaty remains to be adjusted; il faut de
      l'argent--il faut beaucoup d'argent;" _you must pay money,
      you must pay a great deal of money_. He spoke much of the
      force, the honor, and the jealous republican pride of
      France; and represented to us strongly the advantage which
      we should derive from the neutrality thus to be purchased.
      He said that the receipt of the money might be so disguised
      as to prevent its being considered as a breach of
      neutrality by England; and thus save us from being
      embroiled with that power. Concerning the twelve hundred
      thousand livres little was said; that being completely
      understood, on all sides, to be required for the officers
      of the Government, and, therefore, needing no further
      explanation. These propositions, he said, being considered
      as the admitted basis of the proposed treaty, M. Talleyrand
      trusted that, by his influence with the Directory, he could
      prevail on the Government to receive us. We asked whether
      we were to consider it as certain, that, without a previous
      stipulation to the effect required, we were not to be
      received. He answered that M. Talleyrand himself was not
      authorized to speak to us the will of the Directory, and
      consequently could not authorize him. The conversation
      continued until half after nine, when they left us; having
      engaged to breakfast with Mr. Gerry the next morning.

      October the 21st, M. X. came before nine o'clock; M. Y. did
      not come until ten: he had passed the morning with M.
      Talleyrand. After breakfast the subject was immediately
      resumed. He represented to us, that we were not yet
      acknowledged or received; that the Directory were so
      exasperated against the United States, as to have come to a
      determination to demand from us, previous to our reception,
      those disavowals, reparations, and explanations, which were
      stated at large last evening. He said that M. Talleyrand
      and himself were extremely sensible of the pain we must
      feel in complying with this demand; but that the Directory
      would not dispense with it; that, therefore, we must
      consider it as the indispensable preliminary to obtain our
      reception, unless we could find the means to change their
      determination in this particular; that if we satisfied the
      Directory in these particulars, a letter would be written
      to us to demand the extent of our powers, and to know
      whether we were authorized to place them precisely on the
      same footing with England. We required an explanation of
      that part of the conversation, in which M. Y. had hinted at
      our finding means to avert the demand concerning the
      President's speech. He answered, that he was not authorized
      to state those means, but that we must search for them and
      propose them ourselves. If, however, we asked his opinion
      as a private individual, and would receive it as coming
      from him, he would suggest to us the means which, in his
      opinion, would succeed. On being asked to suggest the
      means, he answered, _money_; that the Directory were
      jealous of its own honor and of the honor of the nation;
      that it insisted on receiving from us the same respect with
      which we had treated the King; that this honor must be
      maintained in the manner before required, unless we
      substituted, in the place of these reparations, something,
      perhaps more valuable, that was money. He said, further,
      that if we desired him to point out the sum, which he
      believed would be satisfactory, he would do so. We
      requested him to proceed; and he said that there were
      thirty-two millions of florins, of Dutch inscriptions,
      worth ten shillings in the pound, which might be assigned
      to us at twenty shillings in the pound; and he proceeded to
      state to us the certainty that, after a peace, the Dutch
      Government would repay us the money; so that we should
      ultimately lose nothing, and the only operation of the
      measure would be, an advance from us to France of
      thirty-two millions, on the credit of the Government of
      Holland. We asked him whether the fifty thousand pounds
      sterling as a _douceur_ to the Directory, must be in
      addition to this sum. He answered in the affirmative. We
      told him that, on the subject of the treaty, we had no
      hesitation in saying that our powers were ample; that, on
      the other points proposed to us, we would retire into
      another room, and return in a few minutes with our answer.

      We committed immediately to writing the answer we
      proposed, in the following words: "Our powers respecting a
      treaty are ample; but the proposition of a loan, in the
      form of Dutch inscriptions, or in any other form, is not
      within the limits of our instructions; upon this point,
      therefore, the Government must be consulted; one of the
      American Ministers will, for the purpose, forthwith embark
      for America; provided the Directory will suspend all
      further captures on American vessels; and will suspend
      proceedings on those already captured, as well where they
      have been already condemned, as where the decisions have
      not yet been rendered; and that where sales have been made,
      but the money not yet received by the captors, it shall not
      be paid until the preliminary questions, proposed to the
      Ministers of the United States, be discussed and decided;"
      which was read as a verbal answer, and we told them they
      might copy it if they pleased. M. Y. refused to do so; his
      disappointment was apparent; he said we treated the money
      part of the proposition as if it had proceeded from the
      Directory; whereas, in fact, it did not proceed even from
      the Minister, but was only a suggestion from himself, as a
      substitute to be proposed by us, in order to avoid the
      painful acknowledgment that the Directory had determined to
      demand of us. It was told him that we understood that
      matter perfectly; that we knew the proposition was in form
      to be ours; but that it came substantially from the
      Minister. We asked what had led to our present
      conversation? And General Pinckney then repeated the first
      communication from M. X., (to the whole of which that
      gentleman assented,) and we observed that those gentlemen
      had brought no testimonials of their speaking any thing
      from authority; but that, relying on the fair characters
      they bore, we had believed them when they said they were
      from the Minister, and had conversed with them, in like
      manner, as if we were conversing with M. Talleyrand
      himself; and that we could not consider any suggestion M.
      Y. had made as not having been previously approved of; but
      yet, if he did not choose to take a memorandum in writing
      of our answer, we had no wish that he should do so; and
      further, if he chose to give the answer to his proposition
      the form of a proposition from ourselves, we could only
      tell him that we had no other proposition to make, relative
      to any advance of money on our part; that America had
      sustained deep and heavy losses by the French depredations
      on our commerce, and that France had alleged so [many]
      complaints against the United States, that on those
      subjects we came fully prepared, and were not a little
      surprised to find France unwilling to hear us; and making
      demands upon us which could never have been suspected by
      our Government, and which had the appearance of our being
      the aggressing party. M. Y. expressed himself vehemently on
      the resentment of France; and complained that, instead of
      our proposing some substitute for the reparations demanded
      of us, we were stipulating certain conditions to be
      performed by the Directory itself; that he could not take
      charge of such propositions; and that the Directory would
      persist in its demand of those reparations which he at
      first stated. We answered that we could not help it; it was
      for the Directory to determine what course its own honor
      and the interests of France required it to pursue; it was
      for us to guard the interest and honor of our country. M.
      Y. observed that we had taken no notice of the first
      proposition, which was to know whether we were ready to
      make the disavowal, reparations, and explanations,
      concerning the President's speech. We told him that we
      supposed it to be impossible that either he, or the
      Minister, could imagine that such a proposition could
      require an answer; that we did not understand it as being
      seriously expected; but merely as introductory to the
      subjects of real consideration.

      He spoke of the respect which the Directory required, and
      repeated that it would exact as much as was paid to the
      ancient kings. We answered that America had demonstrated to
      the world, and especially to France, a much greater respect
      for her present Government than for her former monarchy:
      and that there was no evidence of this disposition which
      ought to be required, that we were not ready to give. He
      said that we should certainly not be received; and seemed
      to shudder at the consequences. We told him, that America
      had made every possible effort to remain on friendly terms
      with France--that she was still making them, that if France
      would not hear us, but would make war on the United States,
      nothing remained for us but to regret the unavoidable
      necessity of defending ourselves. [_Oct. 22._

No. 2.

                          OCTOBER 27, 1797.

      About twelve we received another visit from M. X. He
      immediately mentioned the great event announced in the
      papers, and then said, that some proposals from us had been
      expected on the subject on which we had before conversed:
      that the Directory were becoming impatient, and would take
      a decided course with regard to America, if we could not
      soften them. We answered, that on that subject we had
      already spoken explicitly, and had nothing further to add.
      He mentioned the change in the state of things which had
      been produced by the peace with the Emperor, as warranting
      an expectation of a change in our system; to which we only
      replied, that this event had been expected by us, and would
      not, in any degree, affect our conduct. M. X. urged, that
      the Directory had, since this peace, taken a higher and
      more decided tone with respect to us, and all other neutral
      nations, than had been before taken; that it had been
      determined, that all nations should aid them, or be
      considered and treated as their enemies. We answered, that
      such an effect had already been contemplated by us, as
      probable, and had not been overlooked when we gave to this
      proposition our decided answer; and further, that we had no
      powers to negotiate for a loan of money; that our
      Government had not contemplated such a circumstance in any
      degree whatever; that if we should stipulate a loan, it
      would be a perfectly void thing, and would only deceive
      France, and expose ourselves. M. X. again expatiated on the
      power and violence of France; he urged the danger of our
      situation, and pressed the policy of softening them, and of
      thereby obtaining time. M. X. again returned to the subject
      of money. Said he, you do not speak to the point; it is
      money: it is expected that you will offer money. We said
      that we had spoken to that point very explicitly: we had
      given an answer. No, said he, you have not: what is your
      answer? We replied, it is no; no; not a sixpence. He again
      called our attention to the dangers which threatened our
      country, and asked, if it would not be prudent, though we
      might not make a loan to the nation, to interest an
      influential friend in our favor. He said we ought to
      consider what men we had to treat with; that they
      disregarded the justice of our claims, and the reasoning
      with which we might support them; that they disregarded
      their own colonies, and considered themselves as perfectly
      invulnerable with respect to us; that we could only acquire
      an interest among them by a judicious application of money,
      and it was for us to consider, whether the situation of our
      country did not require that these means should be resorted
      to.

      He said that all the members of the Directory were not
      disposed to receive our money; that Merlin, for instance,
      was paid from another quarter, and would touch no part of
      the douceur which was to come from us. We replied, that we
      had understood that Merlin was paid by the owners of the
      privateers; and he nodded an assent to the fact. He
      proceeded to press this subject with vast perseverance. He
      told us that we had paid money to obtain peace with the
      Algerines and with the Indians; and that it was doing no
      more to pay France for peace. To this it was answered, that
      when our Government commenced a treaty with either Algiers
      or the Indian tribes, it was understood that money was to
      form the basis of the treaty, and was its essential
      article; that the whole nation knew it, and was prepared to
      expect it as a thing of course; but that in treating with
      France, our Government had supposed that a proposition,
      such as he spoke of, would, if made by us, give mortal
      offence. He asked if our Government did not know that
      nothing was to be obtained here without money? We replied,
      that our Government had not even suspected such a state of
      things. He appeared surprised at it, and said, that there
      was not an American in Paris who could not have given that
      information. The conversation continued for nearly two
      hours; and the public and private advance of money was
      pressed and re-pressed in a variety of forms. At length M.
      X. said that he did not blame us; that our determination
      was certainly proper, if we could keep it; but he showed
      decidedly his opinion to be that we could not keep it. He
      said that he would communicate, as nearly as he could, our
      conversation to the Minister, or to M. Y. to be given by
      him to the Minister; we are not certain which. We then
      separated. On the 22d of October, M. Z., a French gentleman
      of respectable character, informed Mr. Gerry, that M.
      Talleyrand, Minister of Foreign Relations, who professed to
      be well-disposed towards the United States, had expected to
      have seen the American Ministers frequently in their
      private capacities; and to have conferred with them
      individually on the object of their mission; and had
      authorized M. Z. to make this communication to Mr. Gerry.
      The latter sent for his colleagues; and a conference was
      held with M. Z. on the subject; in which General Pinckney
      and General Marshall expressed their opinions, that, not
      being acquainted with M. Talleyrand, they could not, with
      propriety, call on him; but that, according to the custom
      of France, he might expect this of Mr. Gerry, from a
      previous acquaintance in America. This Mr. Gerry
      reluctantly complied with on the 23d, and with M. Z. called
      on M. Talleyrand, who, not being then at his office,
      appointed the 28th for the interview. After the first
      introduction, M. Talleyrand began the conference. He said
      that the Directory had passed an arrêt, which he offered
      for perusal, in which they had demanded of the Envoys an
      explanation of some part, and a reparation for others, of
      the President's speech to Congress, of the 16th of May: he
      was sensible, he said, that difficulties would exist on the
      part of the Envoys relative to this demand; but that by
      their offering money, he thought he could prevent the
      effect of the arrêt. M. Z., at the request of Mr. Gerry,
      having stated that the Envoys have no such powers, M.
      Talleyrand replied, they can, in such a case, take a power
      on themselves; and proposed that they should make a loan. A
      courier arriving at this moment from Italy, and M.
      Talleyrand appearing impatient to read the letters, Mr.
      Gerry took leave of him immediately. He followed to the
      door, and desired M. Z. to repeat to Mr. Gerry what he, M.
      Talleyrand, had said to him. Mr. Gerry then returned to his
      quarters with M. Z., took down the particulars of this
      interview, as before stated, sent for Gens. Pinckney and
      Marshall, and read it to them in the presence of M. Z., who
      confirmed it. Generals Pinckney and Marshall then desired
      M. Z. to inform M. Talleyrand that they had nothing to add
      to this conference, and did not wish that the arrêt might
      be delayed on their account.

                          OCTOBER 29.

      M. X. again called upon us. He said M. Talleyrand was
      extremely anxious to be of service to us, and had requested
      that one more effort should be made to induce us to enable
      him to be so. A great deal of the same conversation which
      had passed at our former interviews was repeated. He said
      that, without this money, we should be obliged to quit
      Paris; and that we ought to consider the consequences: the
      property of the Americans would be confiscated, and their
      vessels in port embargoed. We told him that, unless there
      was a hope of a real reconciliation, these evils could not
      be prevented by us; and the little delay that we might
      obtain would only increase them; that our mission had
      induced many of our countrymen to trust their vessels in
      the ports of France; and if we remained at Paris, that very
      circumstance would increase their number; and,
      consequently, the injury which our countrymen would
      sustain, if France could permit herself so to violate her
      own engagements and the laws of nations. He expressed a
      wish, that M. Y. should see us once more. We told him that
      a visit from M. Y., as a private gentleman, would always be
      agreeable to us; but if he came only with the expectation
      that we should stipulate advances of money, without
      previously establishing a solid and permanent
      reconciliation, he might save himself the trouble of the
      application, because it was a subject we had considered
      maturely, and on which we were immovable. He parted with
      us, saying, if that was the case, it would not be worth
      while for M. Y. to come. In the evening, while General
      Pinckney and General Marshall were absent, M. Y. and M. X.
      called, and were invited by Mr. Gerry to breakfast with us
      the next morning.

                          OCTOBER 30.

      Immediately after breakfast the subject was resumed. M. Y.
      spoke without interruption for near an hour. He said that
      he was desirous of making a last effort to serve us, by
      proposing something which might accommodate the differences
      between the two nations; that what he was now about to
      mention, had not, by any means, the approbation of the
      Directory; nor could M. Talleyrand undertake further than
      to make from us the proposition to the Directory, and use
      his influence for its success; that, last week, M.
      Talleyrand could not have ventured to have offered such
      propositions; but that his situation had been very
      materially changed by the peace with the Emperor; by that
      peace he had acquired, in a high degree, the confidence of
      the Directory, and now possessed great influence with that
      body; that he was also closely connected with Buonaparte
      and the Generals of the Army in Italy, and was to be
      considered as firmly fixed in his post, at least for five
      or six months; that, under these circumstances, he could
      undertake to offer, in our behalf, propositions which,
      before this increase of influence, he could not have
      hazarded. M. Y. then called our attention to our own
      situation, and to the force France was capable of bringing
      to bear upon us. He said that we were the best judges of
      our capacity to resist, so far as depended on our own
      resources, and ought not to deceive ourselves on so
      interesting a subject. The fate of Venice was one which
      might befall the United States.

The American Ministers determined to have no more of these conferences,
and broke them off altogether; but shortly after, they were approached
indirectly and in a new way, as thus detailed by General Pinckney to his
Government:

      On the 14th of December, M. X. called on me, in order, as
      he said, to gain some information relative to some lands in
      * * *, purchased by * * *, for whom * * *. Soon afterwards,
      General Marshall came in, and then Mr. Gerry's carriage
      drove into the yard. Here is Mr. Gerry, said General
      Marshall. I am glad of it, said M. X., for I wished to meet
      all of you gentlemen, to inform you that M. Y. had another
      message to you from M. Talleyrand. I immediately expressed
      my surprise at it, as M. Talleyrand, M. Y., and he, all
      knew our determination to have no further communication on
      the subject of our mission with persons not officially
      authorized. He replied, that determination was made six
      weeks ago; and it was presumed that we had changed our
      opinion. I said that I had not, and I did not believe my
      colleagues had. At that moment Mr. Gerry entered the room,
      and I privately acquainted him with the object of M. X.'s
      visit. General Marshall, Mr. Gerry, and myself, then
      withdrew into another room, and immediately agreed to
      adhere to our former resolution. M. X. was then called in;
      when I acquainted him, in a few words, with our
      determination; and Mr. Gerry expatiated more at large on
      the propriety of our acting in this manner, and on the very
      unprecedented way in which we had been treated since our
      arrival.

      On the 20th of December, a lady, who is well acquainted
      with M. Talleyrand, expressed to me her concern that we
      were still in so unsettled a situation; but, adds she, why
      will you not lend us money? If you would but make us a
      loan, all matters would be adjusted; and, she added, when
      you were contending for your revolution, we lent you money.
      I mentioned the very great difference there was between the
      situation of the two countries at that period and the
      present, and the very different circumstances under which
      the loan was made us, and the loan was now demanded from
      us. She replied, we do not make a demand; we think it more
      delicate that the offer should come from you: but M.
      Talleyrand has mentioned to me (who am surely not in his
      confidence) the necessity of your making us a loan; and I
      know that he has mentioned it to two or three others; and
      that you have been informed of it; and I will assure you
      that, if you remain here six months longer, you would not
      advance a single step further in your negotiations without
      a loan. If that is the case, I replied, we may as well go
      away now. Why that, possibly, said she, might lead to a
      rupture, which you had better avoid; for we know we have a
      very considerable party in America, who are strongly in our
      interest.

The American Envoys having repulsed all these attempts, and refused to
listen longer to these intermediaries, two of them (Messrs. Pinckney and
Marshall) were furnished with their passports, and left France. Mr.
Gerry remained, and underwent many attempts to be inveigled into a
separate negotiation, all of which failed. In the mean time, (for half a
year had now been consumed in this intrigue,) the despatches of the
American Ministers had become public, exciting every where odium upon
the Directorial Government. The occasion required them to say something,
which Talleyrand undertook, and had the "unparalleled effrontery," as
expressed by Mr. Pickering, to affect ignorance of the whole affair, to
demand the names of the enigmatical personages, (X., Y., Z.,) and of the
"_woman_" that reinforced them; and to pronounce the whole the imposture
of some intriguers taking advantage of the state of isolation in which
the Ministers lived to try and wheedle them out of money. Upon this
disavowal, Mr. Pickering remarks:

      Although the Envoys' despatches, and the facts and
      circumstances hereinbefore stated, cannot leave a doubt
      that X., as well as Y. and Z., was well known to Mr.
      Talleyrand, it will not be amiss to add, that on the 2d of
      December, X., Y., and Z., dined together at Mr.
      Talleyrand's, in company with Mr. Gerry; and that, after
      rising from the table, the money propositions, which had
      before been made, were repeated, in the room and in the
      presence, though, perhaps, not in the hearing, of Mr.
      Talleyrand. Mr. X. put the question to Mr. Gerry in direct
      terms, either "whether the Envoys would now give the
      _douceur_," or "whether they had got the money ready." Mr.
      Gerry, very justly offended, answered positively in the
      negative, and the conversation dropped.

      Mr. Z., who has avowed himself to be Mr. Hauteval, was the
      person who first made known to the Envoys the Minister's
      desire to confer with them individually on the objects of
      their mission. He it was who first introduced Mr. Gerry to