JANUARY, 1806. Protection of American Seamen. SENATE. and M., c. 15)" That no person shall be enlisted 'for the land service, who did not, in the presence of a magistrate, high-constable, &c., declare his free consent to be enlisted as a soldier." are not to be found? I will also examine the statutes on which he relies as recognising this right. I would here observe that he holds the soldier and seamen alike bound by the same law, and it would (Fost. C. L., 166) seem, by Admiral Can we, then, submit the exercise of this royal Seymour's commission, that his power extended prerogative right to be enforced on those sailing to impress ships, captains, masters, pilots, and sea- under the flag of the United States, without the men, as well as all other persons fit for the pur-limits of the British Empire?—a practice, Judge pose. This was for the sea and foreign service, Blackstone informs us, Britons have submitted to and did not extend to land soldiers, as, until the with great reluctance-and, will it not be said, 24th year of Charles II., all the lands were held that we are wanting to ourselves, if we should not by military tenures, whereby the tenants were guard our seamen against this outrage by all the obliged to furnish soldiers and everything neces- means in our power? But it may be said, the sary for them in war; but by (24 ̊C. II., c. 12) | British Government has a right to the service of these tenures were abolished; and I question much her own subjects. I have shown, not by impresswhether the statute of Charles I. extended to the ment; and I will now show that they have the feudal tenants, who were bound to serve only in right of becoming American citizens, and being England. By statute of Henry VIL, (7 H. 7, c. 1) protected in that right. (Tuck. Black. 1 vol. p. it is enacted that, if any soldier, being no captain 145.) "By the law of nature, man is subject to immediately retained with the King, which shall no restraints, and may pass into any region." be in wages, and retained, or take any prest to (Vat. 172, sec. 225.) By the law of nations, serve the King upon the sea, or upon the land every subject has a right to expatriate himself, beyond sea, depart out of the King's service with- and seek his fortune where he can best promote out license from the captain, it shall be adjudged 'his interest." (1 Black. Com. 265, F. N. B. 85.) felony. And by the common law, every Englishman may The statute of Henry VI. (18 H. 6, c. 19) against go out of the realm without the King's leave for desertion, was construed to extend to soldiers bound any cause he pleaseth; and so far has Britain reby tenure, or covenant, to serve on land; and a cognised this right in others, by Parliament, that, question was made, whether soldiers who had by the navigation act, one-fourth of every ship's taken prest to serve against the rebels in Ireland, crew may be foreigners. (6 Ann, c. 37.) By the were liable to the penalties of that law? which was statute of Ann, three-fourths may be foreigners, cleared up in Parliament in these words: "That and by the statute of George II., (13 Geo. 2, c. 3,) 'the said statute of Henry VI., in all pains, for- it is provided, "That any foreigner serving on 'feitures, and penalties, did, doth, and hereafter board of any merchant ship, or ship of war, for 'shall, extend as well to every mariner and gun-two years, in time of war, shall, ipse facto, bener having taken, or who hereafter shall take,come a British subject, entitled to all the priviprest, or wages, to serve the Queen's Majesty,leges of a native-born subject." Thus, we see, as it did, or doth, to soldiers; any opinion to the 'contrary notwithstanding." These are the statutes from whence the right is pretended to be inferred-which, I presume, go to show that the mariner and soldier must be enlisted before they are liable to the penalties of desertion, and, that it is by contract, and not by force, the soldier becomes bound to serve, and that the right is founded in the prostitution of the sound of the word (Boy. D. Cow. Inst. J. L. D.) prest for the sense, which word means "money paid to a soldier or sailor to enlist." Nor is it at all to be wondered at, that a right founded in necessity-the tyrant's plea-should rest on a pretext so flimsy, or that the barriers of etymology should not be able to withstand-as necessity has no law-the physical force of a press-gang. And although this right of the seaman to be exempt from service but on their enlistment, has been, under the claim of prerogative, substantially violated, yet the form of the commission to impress retains the evidence of this violation. It is in these words: (Fost. C. L. 15 c.) "We do hereby empower and direct you to impress, or cause to be impressed, so many seamen, &c., giving unto each man one shilling for press-money," &c. Thus I have shown that British subjects are not legally bound, unless they receive prest, or bounty, to enlist; and, to avoid imposition, it is provided by statute, (5 and 6. W. เ Britain invites foreigners into her service, and secures them in all the privileges of her native subjects, among which, protection is the most important. Can it be, then, that Britain will exercise a right that is not legitimate, or claim for herself what she denies to others? If not, then she admits the right of expatriation, which is established by the law of nature, of nations, and the common law, and tested by the authority of the British Parliament. Can we, then, feel ourselves at a loss for authority to protect those who sail under the flag of the United States, when we see Britain not only inviting foreigners into her service, but securing them protection by the solemnity of a statute? Can we then, I say, want authority or zeal to protect our citizens in their rights, secured to them by the solemnity of a Constitution, under the solemnity of an oath? Mr. President, permit me here to observe, that all legitimate government is derived from the people, and is founded in compact only, and intended for the good of the whole; that protection and allegiance are reciprocal obligations, each so important, that in all Governments, in all ages, they have been secured by the solemnity of an oath. I ask, then, is not the conduct of Britain a violation of the rights of our seamen? Are they not secured in these rights by the Constitution? and SENATE. Protection of American Seamen. By the Constitution, Congress are to define and punish piracy. In defining piracy, I wish them not to exercise a wild, but legal discretion, which is itself defined, to "discern by law what is just." I will therefore call their attention to the subject, as it has been considered by the law of nations, the common and statute law of Great Britain.' By the law of nations, (Mol. D. J. M. 57,) "the attacking a ship at sea and taking away some of 'the men to make them slaves, is piracy." 6 6 JANUARY, 1806. are we not bound by the most solemn obligation gives a premium for destroying the pirate, whom to protect them to the utmost of our power? (Vat. all writers denounce as an outlaw, and hold it 251, sec. 1.) "Whosoever uses a citizen ill, indi- | lawful to destroy. Sir Edward Coke (3 Inst. 113) rectly offends the State-which ought to protect says a pirate is "Hostis humani generis," which 'their citizens-and his Sovereign should avenge is an enemy to the human race. That an out'the injuries, punish the aggressor, and, if possi- lawed felon is said to have caput lupinum, that 'ble, oblige him to make entire satisfaction; since ' he might be knocked on the head like a wolf by ' otherwise, the citizen would not obtain the great any one that should meet him,” (Merr, C. 4, s. 4, end of the civil association, which is safety." Co. Lit. 128;) and Judge Blackstone tells us, in I cannot then permit myself for a moment to more modern times, (4 Bl. 70.) that "a pirate has suppose that a right so important, secured by ties renounced all the benefits of society and governso solemn, and so palpably violated, will not be ment, and has reduced himself afresh to the savprotected to the utmost of the power of the Con- age state of nature by declaring war against all gress of the United States by all the legislative mankind; all mankind must declare war against means they possess, consistent with the sound him, so that every community hath a right, by principles of legislation and good government. 'the rule of self-defence, to inflict that punishment upon him which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or property." By the law of nations (Vat. 137, sec. 169) "The right of punishing, which in a state of nature belonged to each individual, is founded in the right of safety. Every man has therefore a right to preserve himself from injury, and by force to provide for his own security, against those who unjustly attack him." Nor are we left to the By the common law, (4 Blac. Com. 72, 3 Inst. elementary writers alone to support this doctrine. 109) piracy consists in "committing those acts of The very point has been judicially determined robbery and depredation upon the high seas in the (Fost. C. L. 154) case of Alexander Broad'which if committed upon land would be felony." foot, who was indicted for the murder of Corne"Every community have a right (4 Bl. C., c. lius Calahan, and acquitted by Judge Foster's 71) to inflict that punishment upon a pirate by direction to the jury. The case was this: "Capthe rule of self-defence, which an individualtain Hanway had a press warrant, with this diwould in a state of nature have been otherwiserection inserted in the body of it: 'You are not 'entitled to, for any invasion of his person or pro'perty." By the statute of Elizabeth. (43. Eliz.,) it is enacted that "whoever shall hereafter, with ' out lawful authority, take any of Her Majesty's 6 subjects against their will and detain them with 'force, or to make a prey or spoil of his person or goods, upon deadly feud, or otherwise, should be 'adjudged and taken to be a felon, and should suf'fer the pains of death without benefit of clergy." This statute was predicated upon a state of things in that country, not more intolerable than the present state of American seamen; nor can it be considered as an incorrect exercise of the discre-ty of the city of Bristol; some of the crew went tion of Congress in defining piracy, to declare the on board in order to press men, who being inimpressment of our seamen, and consigning them formed that one or two of the Bremen's men to so abject a slavery as they are subject to on were concealed in the hold, Calahan with three board British ships of war, piracy-when, by the others went thither in search of them, wherelaw of nations, by the common law, and by the upon Broadfoot, one of the Bremen's men (who statute of Elizabeth, we discover ourselves per- 'had provided a blunderbuss for defence against fectly justified in so doing; and I trust we can 'the press gang) called out, and asked them what never find ourselves less disposed to protect our they came for; he was answered by some of the citizens than Britain has been to protect her sub-press gang: We come for you and your comjects; nor of declaring that act piracy committed 'rades.' Whereupon he cried out, 'Keep back, I on the high sea, that Britain considers a felony of have a blunderbuss loaded with swan shot.' death committed on land. Nor can we feel any Upon this the other stopped, but did not retire. difficulty in imposing the pains of death on the He then cried out, Where is your Lieutenant?' offender, for a piracy on personal liberty, when and being answered, 'He is not far off,' immewe impose it in all cases of piracy on property, diately fired among them. By this shot Calahan and when we consider that it is the punishment was killed, and one or two of the press gang imposed by all nations in every case of piracy.wounded." In this case, as you perceive, BroadThis brings me to the second section of the bill, foot was acquitted by the direction of the Judge. which justifies the repelling force by force, and Then, if an Englishman may kill an Englishman 6 to entrust any person with the execution of this warrant but a commissioned officer, and to insert his name and office in the deputation on the other side hereof.' He endorsed: 'I do hereby depute A. B. a Lieutenant of the mortar sloop to impress, &c.' On 25th April, 1742, Captain Hanway being at anchor, in Kingroad, at Bristol, ordered the ship's boat down the channel, to press as they should see an opportunity; the Lieutenant staid on board with the Captain. In the evening the boat came up with the Bremen Factor, in that part of the channel in the coun JANUARY, 1806. Protection of American Seamen. in the attempt to impress him, because the authority was incorrectly executed, can we feel a doubt that an American may kill an Englishman, when by no possibility there can be any color of authority; and that too without the jurisdiction and limits of the British empire, when sailing under the protection of the American flag? I can feel no doubt. SENATE. entitled to the same measure of justice as Englishmen. By the law of nations (Vat. 434, § 354) these measures are milder than war, which involves the innocent with the guilty. "The Prince, therefore, who attempts this method, instead of coming to an open rupture, is doubtless worthy of peace, on account of his moderation and prudence; but they who run to arms with 'barbarians, enemies to society, and rebels to the law of nations, or, rather, to the common Father of mankind." justify its legality, there ought to be exemplary damages; and in all cases wherever an injury is done under the color of authority, as where an officer under an authority to impress exceeds that authority. Motion overruled. And as to giving a bounty for killing this hos-out necessity, are scourges to the human race, tis humani generis, wearing the caput lupinum, I trust there can be no objection, when we consider the practice of other States and nations, particularly Britain herself, who, by the statute of This brings me to the last section of the bill, George II., (8 Geo. 2, c. 24,) gives a bounty to en- which secures the impressed seaman compensacourage the destruction of pirates. The statute tion for his false imprisonment not far beyond the is in these words: "That, to encourage the de- wages in the merchant service, and authorizes 'fence against pirates, the commanders or sea- the attachment of so much of the debts to Britmen wounded, and the widows of such seamen ish subjects as may be necessary for that purpose, as are slain in any piratical engagement, shall there being no other means of redress. All man'be entitled to a bounty, to be divided among kind will declare it just, and Britain herself has them, not exceeding the value of one-fiftieth judicially established the principle in the case depart of the cargo on board." Can we then, with cided by C. J. Pratt, afterwards Lord Camden, the example of Britain before our eyes, giving (Say. Dam. 219.) The case was in an action for bounty for the protection of property, feel any re- false imprisonment. The Earl of Halifax, one of luctance in giving a bounty for the protection of His Majesty's principal Secretaries of State, liberty? Can it be possible that Britain shall granted a warrant, without previous information, protect the property of her subjects with more against a journeyman printer of North Britain, vigilance and circumspection than America will who was kept six hours and treated civilly; 300 protect the liberty and lives of her citizens? I pounds damages were given. On a motion for a will not for a moment permit the hateful idea to new trial, because of excessive damages, Pratt, torment me. It cannot be so. As these provis- Chief Justice, declared that, as it was a general ions are mere declarations of the law, that our warrant and an attack upon public liberty and seamen may know their rights, and resist the un-against Magna Charta, and as they attempted to lawful force with safety; and as the exercise of this repulsive force may induce severities and death itself, it becomes necessary to secure the exercise of it by the provisions of this act. Therefore the next clause is introduced, authorizing the President to retaliate in case of any cruelties ex- It will not, then, be said by an American Conercised on our seamen. This is dictated by the gress, that, for the false imprisonment of an Amersoundest policy, legitimated by the law of na- ican seaman sixty dollars per month can be too tions, and recognised by our own laws. By the high, for his bondage on board a British ship of war, law of nations, (Vat. 426, § 341,) "when a sov- exposed to every hardship, when a British subject, 'ereign is not satisfied with the manner in which for six hours confinement, with civil treatment, his subjects are treated by the law and custom of had eight hundred dollars damages by a British another nation, he is at liberty to declare he will jury; nor can the method of recovering the same treat the subjects of that nation in the same be opposed upon sound principles. (Vat. 431, sec. manner his subjects are treated; this is called 350.) By the law of nations, "justice is said to 'the Law of Retortion. There is nothing in this 'be denied, when the subject is not permitted to but what is conformable to sound politics." establish his right in the ordinary tribunals of (Vat. 432, § 351.) At Athens, the law permitted justice, or when great and unreasonable delay is the relations of him who had been assassinated to effected, equivalent to a refusal." And it can seize three of the natives of that country, and de- never be said that, after ten years spent in fruittain them till the murderer was punished or de- less negotiation, and after we have been informed livered up, and our own law recognises this prin- by the President "that every spark of hope is ciple. By the act of 3d March, 1799, it is provided, extinguished," and the cup of humiliation drainthat if any seaman, who shall have been impres-ed to its dregs, that the delay is not unreasonable sed on board any vessel of the Powers at war with France, who shall be taken by France, and hath suffered death, or any corporal punishment by the authority of France or any officer under their authority, the President shall cause the most rigorous retaliation to be executed on any citizen of the French Republic that may be taken under the laws of the United States. But perhaps it may be insisted these were Frenchmen, and not 9th CoN.-3 and equivalent to a refusal. And we are authorized by the law of nations (Vat. 151, sec. 1) to retaliate, to enforce, if possible, the making the citizen entire satisfaction. It may be objected, however, that this remedy is in violation of the Treaty of London of 19th November, 1794, which secures the inviolability of British debts; but it will be recollected that this violation on our part is induced by the violation of the same treaty by SENATE. Proceedings. JANUARY, 1806. October last, which was read in Senate on Friday last, and withdrawn to be laid before the House of Repre It was agreed that this motion lie for consideration. The bill to empower George Rapp and his associates, in the Society of Harmony, to purchase certain lands, was resumed as in Committee of the Whole; and, an amendment having been proposed, Ordered, That the consideration thereof be postponed until to-morrow. Great Britain by an attack on the liberty of the TUESDAY, January 21. Mr. SMITH, of Maryland, gave notice that he should, to-morrow, ask leave to bring in a bill for classing the militia, and assigning to each class its particular duties. Agreeably to notice given yesterday, Mr. SMITH, of Ohio, asked and obtained leave to bring in a bill authorizing the sale of a certain lot of land; and the bill was read, and ordered to a second reading. A message from the House of Representatives informed the Senate that the House have passed a bill, entitled "An act for the relief of the Governor, Secretary, and Judges, of the Territory of the United States Northwest of the river Ohio;" also, a bill, entitled "An act extending the powers of the Surveyor General to the Territory of Louisiana, and for other purposes;" in which bills they desire the concurrence of the Senate. The bills were read and ordered to the second reading. The bill, entitled "An act making an additional appropriation to supply the deficiency in the appropriation for the naval service during the year 1805," was read the second time as in Committee of the Whole; and, having been reported to the House without amendment, it was, by unanimous consent, read the third time and passed. On motion, that it be Resolved, That a committee be appointed to inquire why the expenditures in the Navy Department, for the year 1805, have so far exceeded the appropriation for the same, and report thereon to the Senate. Ordered, That this motion lie for consideration. Resolved, That the President of the United States be requested to cause to be laid before the Senate a copy of Mr. Monroe's letter to the Secretary of State, dated The bill for the protection and indemnification of American seamen was read the second time, and the further consideration thereof, as in Committee of the Whole, was made the order of the day for Monday next. On motion the Senate resumed the second reading of the confidential bill, entitled "An act making provision for any extraordinary expenses attending the intercourse between the United States and foreign nations," as in Committee of the Whole; and the bill having been reported to the House without amendment, Ordered, That the third reading thereof be the order of the day for Thursday next. WEDNESDAY, January 22. The bill, entitled "An act extending the powers of the Surveyor General to the Territory of Louisiana, and for other purposes," was read the second time, and referred to Messrs. WORTHINGTON, BALDWIN, WRIGHT, MOORE, and ANDERSON, to consider and report thereon. The bill entitled "An act for the relief of the Governor, Secretary, and Judges, of the late territory of the United States northwest of the river Ohio," was read the second time, and referred to Messrs. MACLAY, KITCHEL, and SMITH, of Ohio, to consider and report thereon. Mr. MACLAY stated in his place, that the Legislature of the State of Pennsylvania had passed a resolution, that their Senators in Congress be instructed to obtain an amendment to the Constitution of the United States respecting the Judiciary; and submitted the following motion, which was read and laid on the table: Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring, That the following article be proposed to the Legislatures of of the United States, which, when ratified by threefourths of the said Legislatures, shall be valid, as part the several States as an amendment to the Constitution of the said Constitution, to wit: The Judicial power of the United States shall not be construed to extend to controversies between a State and the citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State or the citizens thereof, and foreign States, citizens, or subjects. The bill authorizing the sale of a certain lot of land was read the second time, and referred to Messrs. SMITH, of Ohio, BALDWIN, and TRACY, to consider and report thereon. The bill to empower George Rapp and his as sociates, in the Society of Harmony, to purchase certain lands, was resumed as in Committee of the Whole; and recommitted to Messrs. SMITH, of Maryland, BRADLEY, and WORTHINGTON, further to consider and report thereon. CLASSIFICATION OF THE MILITIA. Mr. SMITH, of Maryland, agreeably to notice given yesterday, asked and obtained leave to bring in the following bill, which was read and ordered to a second reading: A Bill for classing the Militia, and assigning to each class its particular duties. SENATE. ligious scruple against bearing arms, shall only extend to the ordinary duties of mustering and disciplining, after having entered the middle or senior class, but all exempts shall be enrolled in their classes and numbers, and when called on for actual military service, shall be bound as others are to perform their due tours. If any person called on to do the actual duties of his class, shall refuse, or unnecessarily delay to enter on duty, he shall be arrested as a deserter, either by the civil or military authority, shall be delivered to the proper military officer, and either punished as a deserter, or compelled to perform his tour of duty. But any person so called on may compute his personal service, by tendering as a substitute an able-bodied white man, a citizen of the United States, fit for the service in the judgment of the officer who is to command him,' and willing to engage therein. And all persons, while engaged in performing a tour of duty, shall have the pay and rations allowed in the army of the United ticles, provided for the government of the same. States, and be subject to the rules, regulations, and ar Be it enacted, &c., That every free, abled-bodied white male citizen of the United States, of the age of eighteen years, and under the age of forty-five, whose principal occupation is not on the high sea, or the tide waters within the United States, shall be of the militia for the land service of the United States. The persons so to constitute the land militia, shall be enrolled by their names and ages, in their proper districts, and in ions in any law of the United States, or of any particSEC. 2. And be it further enacted, That all provisbooks kept for that purpose; such enrollment to beular State, or Territory, inconsistent with those of this made without delay of those now within the description, and from time to time as to others who shall hereafter become so, always noting the date of enrollment, and placing in a distinct page, or part of the book, those of every different year of age, from forty-five down to eighteen. The said militia shall be distributed into classes as follows, to wit: The junior class shall be composed of those above twenty-one, and under twenty-six years of age; the middle class of those above twenty-six, and under thirty-five years of age; the senior class of those above thirty-five and under forty-five years of age; and those above eighteen, and under twenty-one years of age shall compose the minor class. The junior class shall be liable to perform all active services within the United States, or the countries next adjacent, by tours of duty, not to exceed one year in any two; and in order that the said services may be required of them equally, those of every battalion shall, by its commanding officer, be immediately divided by lot into ten parts, or portions, as nearly equal as may be; each portion to be distinguished by its particular number, from one to ten, and to be called into duty in the order of their numbers, such call extending to so many numbers as the exigency may require, and every person so called on, may be assigned to the service of the artillery, infantry, cavalry, or of any other description, as the competent authority shall direct. In consideration of the assiduous discipline required from the junior class, and of the services they shall have performed, or been liable to perform while in it, they shall never after passing into the middle class, be liable to actual service, but where the junior class for the time being is inadequate to the exigency; and then in their own or one of the adjoining States only, and by tours not exceeding three months in any year for which purpose they shall be distributed into sections and called on in routine, as is provided in the case of the junior class. The senior and minor classes shall be liable to be called on to do duty within their own State only, and by tours not exceeding three months in any year, and they shall be separately distributed into portions and numbers, and called on in routine as provided for the other classes. Exemptions from militia duty, except in cases of re act, are hereby repealed; and all provisions in the laws of the United States, or of any particular State or Terbe left in force, and liable to alteration by their respectritory not inconsistent herewith, shall be understood to ive enacting authorities. The Senate resumed the consideration of the motion made yesterday, that the President of the United States be requested to communicate to the Senate a copy of Mr. Monroe's letter to the Secretary of State; and it was agreed to amend the motion as follows: Resolved, That the President of the United States be requested, if he shall judge the same to be proper, to cause to be laid before the Senate a copy of Mr. Monroe's letter to the Secretary of State, dated 18th of October, 1805, with a postscript, dated 25th, which was read in Senate on Friday last, and withdrawn to be laid before the House of Representatives. Whereupon, a motion was made that the proposed resolution be referred to a select committee; and, on motion, the Senate adjourned. THURSDAY, January 23. Mr. WORTHINGTON, from the committee appointed on the subject, reported a bill to repeal in part the fourth section of an act, entitled "An act to authorize a grant of lands to the French inhabitants at Galliopolis, and for other purposes therein mentioned ;" and the bill was read, and ordered to the second reading. Mr. BRADLEY presented the petition of Seth Harding, commander of a ship in the service of in which service he received extreme bodily injury, the United States, during the Revolutionary war. as is stated at large in his petition, and praying such pecuniary relief as may, to Congress, seem reasonable for a person debilitated by public service; and the petition was read. and referred to Messrs. BRADLEY, TRACY, and SUMTER, to consider and report thereon. Mr. TURNER Communicated the representation of the State of North Carolina, on the subject of certain pensioners on the list of that State, and |