Thomas R. Gold, William Hale, Nathaniel A. Haven,
Jonathan H. Hubbard, Richard Jackson, jr., Robert
Jenkins, Joseph Lewis, jr., Edward St. Loe Livermore,
Robert Le Roy Livingston, Matthew Lyon, Nathaniel
Macon, Vincent Matthews, Archibald McBride, Thom-
as Moore, Jonathan O. Mosely, Joseph Pearson, Ben-
jamin Pickman, jr., Elisha R. Potter, Josiah Quincy,
John Randolph, Thomas Sammons, Samuel Shaw,
Samuel Smith, Richard Stanford, John Stanley, Wil-
liam Stedman, James Stephenson, Lewis B. Sturges,
Jacob Swoope, Samuel Taggart, Benjamin Tallmadge,
Jabez Upham, Nicholas Van Dyke, Killian K. Van
Rensselaer, Laban Wheaton, Ezekiel Whitman, and
James Wilson.

JUNE, 1809.

James Holland, Benjamin Howard, Jacob Hufty, John G. Jackson, Richard M. Johnson, Thos. Kenan, Wm. Kennedy, John Love, Aaron Lyle, Robert Marion, Samuel McKee, Alexander McKim, Pleasant M. Miller, William Milnor, John Montgomery, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Gurdon S. Mumford, Thomas Newton, Wilson C. Nicholas,_John Nicholson, John Porter, Peter B. Porter, John Rea of Pennsylvania, John Rhea of Tennessee, Matthias Richards, John Roane, Erastus Root, John Ross, Ebenezer Sage, Lemuel Sawyer, Benjamin Say, Ebenezer Seaver, Daniel Sheffey, John Smilie, George Smith, John Smith, Samuel Smith, Henry Southard, Richard Stanford, John Taylor, John Thompson, Uri Tracy, Archibald Van Horn, Robert Weakley, Robert Whitehill, Richard Winn, and Robert Witherspoon.

Another motion was made by Mr. DANA, to amend the bill, by adding to the end thereof, the following: "Provided, That no money shall be borrowed in virtue of this act until after at least

NAYS-Lemuel J. Alston, Willis Alston, jr., William Anderson, Ezekiel Bacon, David Bard, Burwell Bassett, William W. Bibb, Adam Boyd, John Brown, Robert Brown, William A. Burwell, William Butler, Joseph Calhoun, James Cochran, Orchard Cook, Jas. Cox, William Crawford, Richard Cutts, John Dawson, John W. Eppes, William Findley, Jonathan Fisk, Meshack Franklin, Barzillai Gannett, Gideon ed loan ;" and the question being taken thereupon, months previous public notice of such intendGardner, Thomas Gholson, jr., Peterson Goodwyn, Daniel Heister, William Helms, James Holland, Ben- it was determined in the negative-yeas 47, nays jamin Howard, Jacob Hufty, John G. Jackson, Rich-74, as follows: ard M. Johnson, Thomas Kenan, William Kennedy, John Love, Aaron Lyle, Robert Marion, Samuel McKee, Alexander McKim, Pleasant M. Miller, William Milnor, John Montgomery, Nicholas R. Moore, Jeremiah Morrow, Gurdon S. Mumford, Thomas Newton, Wilson C. Nicholas, John Nicholson, John Porter, Peter B. Porter, John Rea of Pennsylvania, John Rhea of Tennessee, Matthias Richards, John Roane, Erastus Root, John Ross, Ebenezer Sage, Lemuel Sawyer, Benjamin Say, Ebenezer Seaver, Daniel Sheffey, John Smilie, George Smith, John Smith, Henry Southard, John Taylor, John Thompson, Uri Tracy, Archibald Van Horn, Robert Weakley, Robert Whitehill, Richard Winn, and Robert Witherspoon.

The question then recurred upon agreeing to Mr. DANA's amendment, as before recited; and the same being taken, it was determined in the negative-yeas 45, nays 77, as follows:

YEAS-William Baylies, William W. Bibb, Daniel Blaisdell, James Breckenridge, William A. Burwell, John Campbell, John C. Chamberlain, William Chamberlin, Epaphroditus Champion, Martin Chittenden, Howell Cobb, Samuel W. Dana, John Davenport, jr., William Ely, James Emott, Thomas R. Gold, William Hale, Nathaniel A. Haven, Jonathan H. Hubbard, Robert Jenkins, Joseph Lewis, jr., Edward St Loe Livermore, Robert Le Roy Livingston, Matthew Lyon, Nathaniel Macon, Vincent Matthews, Archibald McBride, Jonathan O. Mosely, Joseph Pearson, Benja❤ min Pickman, jun., Timothy Pitkin, jun., Elisha R. Potter, Josiah Quincy, Samuel Smith, John Stanley, William Stedman, James Stephenson, Lewis B. Stur. ges, Jacob Swoope, Samuel Taggart, Benjamin Tallmadge, Jabez Upham, Nicholas Van Dyke, Archibald Van Horn, Killian K. Van Rensselaer, Ezekiel Whitman, and James Wilson.

YEAS-William Baylies, Daniel Blaisdell, James liam Anderson, Ezekiel Bacon, David Bard, Burwell NAYS-Lemuel J. Alston, Willis Alston, jun., WilBreckenridge, John Campbell, John C. Chamberlain, Bassett, Adam Boyd, John Brown, Robert Brown, WilWilliam Chamberlin, Epaphroditus Champion, Martin liam Butler, Joseph Calhoun, Matthew Clay, James Chittenden, Matthew Clay, Samuel W. Dana, John Cochran, Orchard Cook, James Cox, William Crawford, Davenport, jr., William Ely, James Emott, Thomas R. Richard Cutts, John Dawson, John W. Eppes, WilGold, William Hale, Nathaniel A. Haven, Daniel liam Findley, Jonathan Fisk, Meshack Franklin, BarHeister, Jonathan H. Hubbard, Joseph Lewis, jr., Ed-zillai Gannett, Gideon Gardner, Thomas Gholson, jr., ward St. Loe Livermore, Robert Le Roy Livingston, Peterson Goodwyn, Daniel Heister, William Helms, Matthew Lyon, Nathaniel Macon, Vincent Matthews, James Holland, Benjamin Howard, Jacob Hufty, John Archibald McBride, Jonathan O. Mosely, Joseph PearG. Jackson, Richard M. Johnson, Thomas Kenan, son, Benjamin Pickman, jr., Timothy Pitkin, jr., Eli- William Kennedy, John Love, Aaron Lyle, Robert sha R. Potter, Josiah Quincy, Thomas Sammons, John Marion, Samuel McKee, Alexander McKim, Pleasant Stanley, William Stedman, James Stephenson, Lewis M. Miller, William Milnor, John Montgomery, NichoB. Sturges, Jacob Swoope, Samuel Taggart, Benjamin las R. Moore, Thomas Moore, Jeremiah Morrow, GurTallmadge, Jabez Upham, Nicholas Van Dyke, Killian don S. Mumford, Thomas Newton, Wilson C. NichoK. Van Rensselaer, Laban Wheaton, Ezekiel Whit-las, John Nicholson, John Porter, John Rea of Pennman, and James Wilson. NAYS-Lemuel J. Alston, Willis Alston, jr., William Anderson, Ezekiel Bacon, David Bard, Burwell Bassett, William W. Bibb, Adam Boyd, John Brown, Robert Brown, William A. Burwell, William Butler, Joseph Calhoun, James Cochran, Orchard Cook, James Cox, William Crawford, Richard Cutts, John Daw

son,

John W. Eppes, William Findley, Jonathan Fisk, Meshack Franklin, Barzillai Gannett, Gideon Gardner, Thomas Gholson, jr., Peterson Goodwyn, Wm. Helms,

sylvania, John Rhea of Tennessee, Matthias Richards, John Roane, Erastus Root, John Ross, Ebenezer Sage, Ebenezer Seaver, Daniel Sheffey, John Smilie, George Thomas Sammons, Lemuel Sawyer, Benjamin Say, Smith, John Smith, Henry Southard, Richard Stanford, John Taylor, Uri Tracy, Robert Weakley, Robert Whitehill, Richard Winn, and Robert Witherspoon.

The bill was then ordered to be engrossed, and read the third time on Monday next—ayes 70.

JUNE, 1809.

MONDAY, June 19.

Batture at New Orleans.

Mr. PETER B. PORTER, from the committee appointed on the memorial of Joseph Wilkinson, jr., presented a bill authorizing the discharge of Joseph Wilkinson, junior, from his imprisonment; which was read twice and committed to a Committee of the Whole to-morrow. Mr. PORTER, from the same committee, also presented a detailed report; which was read, and referred to the same Committee of the Whole.

H. of R.

one, viz: to give the petitioners the right of appeal from the decision of the Orleans court to the Supreme Court, or to give the United States the same right, should the decision be against them. He could see no advantage in the procrastination now proposed, nor any injury to the United States or the city of New Orleans, in the course which he advocated. He doubted, although the letter of the law of 1807 might cover this case, whether it was ever intended that that law should operate On motion of Mr. GOLD, a committee was ap for it, was that it should apply exclusively to the as this had done. My intention, said he, in voting pointed to inquire into the expediency of provi- Western lands, commonly called the Yazoo lands, ding by law for ascertaining and settling the controverted boundary of the public land at West and such other lands as were occupied by hunPoint, in the State of New York; with leave to dreds who might be formidable from their numreport by bill, or otherwise.-Mr. GOLD, Mr GOOD-bers. To undertake jurisdiction on questions of WYN, Mr. VAN DYKE, Mr. SHAW, and Mr. CRAW- property is taking upon ourselves the functions FORD were appointed the committee. of another department, of the Judiciary. The The bill sent from the Senate, entitled "An act case involves important points of law-and let to change the post route from Annapolis to Rock- me ask, whether gentlemen in this House are so hall, by Baltimore to Rockhall, was read twice, well read in law as to be able to decide such and ordered to be read the third time this day. an important point as this? It does appear to A message from the Senate informed the House me that on all questions of private property arising that the Senate have passed a bill, entitled "An in the United States, where the question of right act to amend and continue in force an act, enti- is not to be brought before this House, we ought tled "An act to interdict the commercial inter- to consult the convenience of the parties by procourse between the United States and Great Brit-moting dispatch. On the question whether this hin and France, and their dependencies, and for other purposes;" to which they desire the concurrence of this House.

The bill sent from the Senate, entitled "An act to amend and continue in force an act, entitled 'An act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes," was read twice, and committed to the Committee of the Whole, to whom was committed the bill to amend and continue in force an act, entitled "An act to interdict the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes.'

THE BATTURE AT NEW ORLEANS.

The House proceeded to consider the resolution submitted by Mr. MACON, on the sixteenth instant, in the words following, to wit:

Resolved, That so much of the Message of the

President of the United States of the seventh of March, one thousand eight hundred and eight, as relates to

the batture in the suburbs of St. Mary's, adjoining New Orleans, and the documents accompanying it, together with the petitions of Edward Livingston, and the petition of the citizens of New Orleans on the same subject, and the documents which accompanied the same, be referred to the Attorney General of the United States, and that he be instructed to receive and collect such other testimony as may be necessary to ascertain the title of the United States to the beforementioned batture, and that he be directed to report to this House, at the next session of Congress, his opinion as to the validity of the claim of the United States

to the said batture."

Mr. BURWELL thought that this was not the proper course to pursue; but that the course recommended at the last session was the proper

property belong to the United States or to the petitioners I am completely ignorant. Nor would Í have it inferred that I believe the petitioner to have a right to the property; I take it that the claim of the United States must be good, or the inhabitants of Orleans would not be so zealous in support of it. Mr. B. dwelt further on the difficulty of deciding in this House on complicated claims to property, if it were right in any case so

to do.

which he had received from the Governor of Mr. POYDRAS asked for the reading of a letter Orleans Territory, which was accordingly read. The letter states, that if it were possible that the committee to whom Mr. Livingston's claim was referred could now visit New Orleans, they would be convinced that the batture, now covered with water, was in fact the bed of the river, and, therefore, could not be private property. Mr. P. stated the history of this piece of alluvion at some length, and the circumstances under which it had always been deemed public property.

Mr. SHEFFEY said that, before passing this resolution, gentlemen ought to ascertain what the Attorney General could do in this case. He could not compel the attendance of witnesses, or collect testimony of circumstances which occurred a hundred years ago; and unless he could do this, it was impossible he could examine the title, for testimony as to facts was essential to enable him to form a correct opinion. What influence could the opinion of the Attorney General have? Was the right of the citizen to fall prostrate before such an ex parte opinion or statement as that might be? If it was not to have influence, why thus evade a decision on the prayer of the petitioner? If it was to have any influence, it must be a pernicious one, because founded on ex parte testimony. Would the House go into the

petitioner, be the consequence what it might, the city of New Orleans had no right to take it away from him.

Mr. Ross said that the delegate from the Territory seemed to fear that the question of right would be decided now. The decision of this resolution eiher one way or the other would require delay. The House must first decide whether they would act on the case or not. If not, it was to no purpose to have the testimony collected. Was it the best way of collecting testimony, to refer a subject to the Attorney General, who has no power to issue compulsory process? He was not of opinion that this House could exercise judicial authority; if it did, he would not have evidence collected in the mode proposed. If the right of the petitioner had been invaded, the invasion of that right was the invasion of the right of every citizen of the United States. He did not mean to express any opinion as to the right in this case, for he had not formed any. It was impossible for the House to decide fairly between the United States and Mr. Livingston, when the evidence was collected by an officer of the United States. Whenever commissioners were to be appointed, they ought to be appointed by agreement, or with the consent of both parties to the litigation. Errors often occurred, even in taking depositions, by the omission or misconception of a word, and the same might much more readily occur in this case.

H. or R.

the question results, has Congress a right, in order to determine its title, to refer it to any tribunal whatever? I contend not; the right to public property was originally in the people of this country; they could never be divested of their great public right to the landed property of the nation, but by their express consent. They did give that right to the Congress of the United States, in declaring that it should have power to dispose of and make all needful rules and regulations concerning public territory. Would it have had that power, if this right had not been expressly delegated? I know that, under the old Articles of Confederation, Congress did undertake to legislate as to property; but it was always questionable whether they had a right to do so-and this was not the only point on which Congress did exercise powers which were brought into question. The right to determine claims to public property is not only guarantied exclusively to Congress by the Constitution, but the practice has been invariably pursuant to it: it was so in 1897. The Government not only asserted its right in the first instance, but asserted its power to enforce the right at the point of the bayonet. If the public have always been in possession of a certain property, the man who enters on it without their consent is a trespasser on that property. Upon this view of the subject, there is a Constitutional difficulty on which the House should decide, before it entertains a motion for delegating a power to decide this question to any tribunal or commission whatever.

What good could result from all this delay, if it was not intended to decide on this case ultimately? Let commissioners be appointed, said Mr. R., to hear and decide this point. The general position that we ought not to establish special tribunals for particular cases is correct; but, like other general rules, is not without an exception. If a difference arises between two States, do they not appoint commissioners to decide on the right? This course was pursued in the contest between the States of Pennsylvania and Connecticut, in regard to the right to the soil of a tract of country. And why was it so decided? Because the case was one sui generis, totally distinct from all cases coming regularly before a regular judicial tribunal. Is this such a case? From everything which I have heard of this case, it is such a one. This House is not the proper tribunal to decide it; but, if it do decide it, the Attorney General is not the proper commissioner to take deposi-a competent court-and this opportunity, Mr. B.

tions.

Mr. TROUP Observed that this case was probably one which would fall under the old maxim, nullum tempus occurrit regi or reipublicæ. It appeared to him that there was a Constitutional difficulty in this case, which did not appear to have suggested itself to the mind of any gentleman. First, has the United States a claim, either real or disputed, to this territory? Whether disputed or otherwise, provided the claim be asserted on its part, the question is, has the Congress of the United States a power to decide the validity of that claim? And if it has, is it proper so to decide it? What is the subject-matter in dispute? Public property; and what species? Landed. Then

Mr. BOYD said, admitting all the gentleman had said to be true, his observations did not apply to this case. He had spoken of the right to public property. The question now was, whether this was public property or not; if it were certainly public property, on which ground the gentleman rested his argument, there could be no question on the subject. It was asked only before they decided between the individual and the United States on the right to land, not confessedly public property, but claimed as such, that fair investigation should be had. Mr. B. disclaimed the power of deciding judicially upon the subject; it was a right which he had never thought of this House claiming. A delay of justice was a denial of it. The individual petitioning had been in possession of the property; it had been taken from him by force, and he now asked a trial of his title before

said, he ought to have as speedily as possible.

Mr. RANDOLPH said he should vote against that report. He said it was no part of his intention to deliver any opinion on the merits of the claim, although he had devoted not a little of his time to the study of that question, for two reasons: first, that it would be a prejudicated opinion, inasmuch as that was not the question which the House were called upon to decide, even if it were competent to decide it. I am extremely sorry, said he, that the law of 1807 has been brought into view of this House by my friends from North Carolina and Georgia, and for this reason; that that law has no bearing at all on the present question. Its object was wholly different from that

to which it has been misapplied. What, sir, was the object of that law? To defend against a conspiracy, I may properly term it-against the lawless violence of confederated associations, a vast property. How has it been applied? Not to a great public property, but to a speck of land, to which, as I understand it, a single individual, or at most three or four, put in a claim. Such an application as that of the law in question was never intended by the Legislature; and, if applied to such a property as the batture, and to the case of a single individual, may be applied to the property of every man in society. What is the doctrine of my friend from Georgia? That the public are always supposed to be in possession of the national domain. True, sir, and it is also true that those who enter upon it and endeavor to appropriate it to themselves, are trespassers, and, as such, may be resisted by force. But that is not the case in the present question-very far from it-for the public never had been in possession of the property in question.

JUNE, 1809.

view it, it is not only impolitic, but, what is worse, extremely unjust to attempt to identify the two cases. And, sir, it is a matter of curious speculation, that, while the act of 1807 has been brought into operation in the case of a solitary individual and little speck of property to which it was not intended to apply, even supposing the case in question to have arisen subsequently to the passage of that act; that, although it has been misapplied in this case, it has not been applied to the case to which it was intended to apply, and for which it was enacted; for, if I understood my friend from Georgia a few days ago, some hundreds or thousands of intruders have set themselves down on the public lands, and the public force has never been employed against them. On the contrary, the artillery of Government has been brought into play against a single individ ual. It was, indeed, said that these intruders had agreed to remain as tenants at will; but, let them remain till they are sufficiently strong, and they will give you another chapter in the history of Wyoming; for, after they are sufficiently strong to hold territory, although the arm of Government has been applied successfully to oust a single individual put in possession by a decree of a court, you will find it nerveless to expel these men.

Without attempting to enter into the merits of the real title to the land in question, let us take it on the ground of the right of the citizen. A citizen comes before this House, and complains that he is dispossessed of his common right by arbitrary power. If, after a cause has been heard by a court, and a citizen put in possession of a prop- With regard to the doctrine nullum tempus ocerty, by a decree of that court, he is dispossessed currit reipublicæ, it is a dangerous doctrine, if carof it by military violence, where, if not before ied to the extent to which I apprehend my friend this House, is he to prefer his claim for redress? from Georgia would carry it. I venture to say There is no court before which he can go, because that the abuse of that doctrine in the celebrated the court which is the last resort in this case has case of Sir John Lowther and the Duke of Portalready unavailingly given its decision. There land, which created one general sentiment of inis no court of appeal, no superior tribunal, and if dignation in the British nation-an attempt under there were, and a decree of the Supreme Court that maxim to deprive a subject, hostile to the obtained in his favor on the appeal, what is any Court, of property of which he had been long in decree to avail against armed men-against mus- possession, for the purpose of transferring it to a kets and bayonets? But, this is not the only rea- minion of the Court-that case, with all its aggrason why I am sorry that the act of 1807 has been vated enormities, does not come up to the case bebrought in to apply to this case. It is because, if fore the House; and I speak without reference to this House can be once prevailed upon to consider the question whether the petitioner has a right or this case as analogous to the Yazoo case, many not to the property in this case. The question of most injurious consequences must follow there- right is not before the House, and that question, from. The first is, that that odious and supremely decide which way you will, can have no sort of infamous claim will be put upon a ground which weight in the vote which the House ought to give. it is by no means entitled to occupy; and I en- The question is this: Having been long in possestreat my friend from Georgia, and those whose sion of a piece of land, the title deeds destroyed, minds are unalterably made up on the Yazoo records burnt, and possession the only title you question, not to give their enemies such a prize have to show, an attempt is made to dispossess you as they must have on us, if we agree to confound of the property; a decree of court confirms your the Yazoo claim with that before the House. right; if the individual, under these circumstanThere is no sort of analogy between them. On ces, can be turned out of possession by main force the other hand, sir, supposing the right to be in and strength, and that, too, military force, there the United States, I beg gentlemen not to create is an end in the right to property of every man so forcible an interest against the rights of the in the country. Sir, I have been astonished, and United States as will infallibly be embodied grieved, and mortified, to see so little sensation against it if we confound the two. I have no created in this nation by the procedure in quesidea of giving the Yazoo men such a handle. tion. It strikes at the root of everything dear to Again, let us suppose, if we can suppose it, that freemen. There is an end of their rights. This the right is in the petitioner; may it not, supposing doctrine has been applied, in the first instance, in a great majority of the House to be against the the Territory of Orleans; but, where is the secuYazoo claim-we do not know how they are dis-rity that it will not be applied to-morrow in the posed-may it not create an unjust bias against Territory of Columbia, and the next day in every the petitioner? So that, in whatever aspect we State in the Union? And, sir, I shall consider