Front Page Titles (by Subject) 1817 - TO WILLIAM H. CRAWFORD. mad. mss. - The Writings, vol. 8 (1808-1819)
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1817 - TO WILLIAM H. CRAWFORD. mad. mss. - James Madison, The Writings, vol. 8 (1808-1819) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 8.
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TO WILLIAM H. CRAWFORD.mad. mss.
Letter of P. of the U. S. Bank of Feby 1, 1817, covering negotiations and arrangement with Deligates of Banks from N. Y., Phila Baltimore & Virga for resuming specie payments.
The letter & papers returned Feby 4 with the following note:
[February 4, 1817.]
The arrangement communicated by the Presidt. of the U. S. Bank is so important an advance towards a universal return of specie circulation, that the Treasury sanction to it, under existing circumstances is evidently proper. Serious difficulties will notwithstanding remain to be encountered, if the principal Banks in every State do not immediately follow the example set them. Even in the States comprising the Banks parties to the arrangement, the payment of the internal taxes after the 20th inst. will be distressing to many not possessing the notes of their own Banks. In the other States the payment in the legalized notes, will be generally impossible for a considerable time.
To the House of Representatives of the United States:
March 3, 1817.
Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,”1 and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause “to provide for the common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill cannot confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
TO JAMES MONROE.d. of s. mss. instr.
Washington, Mar. [Filed March 5] 1817.
Altho’ your personal and official acquaintance with Mr. J. Graham,1 be well known to me, I can not, on the occasion of my final departure from the public service, satisfy myself, without expressing my sense of his great merit.
Mr. Graham, recommended by my knowledge of his public agency abroad, and of his private virtues, was invited into the Department of State, as the chief under the Head of it, whilst the Department was in my hands. It was my wish, more than his own that was gratified by the appointment. And I have always considered it as the effect of an honorable desire to serve his country, combined with his personal & political feelings, that he remained for so long a period, in a station, without the attractions, which could otherwise have detained him in it.
On these grounds, & from continued & varied opportunities of being intimately acquainted with Mr. Graham, I not only take a pleasure, but feel an obligation, in saying that I regard him as among the most worthy of men, and most estimable of citizens; as adding to a sound & discriminating judgment, a valuable stock of acquirements adapted to public affairs; and to both, a purity of character, a delicacy of sentiment, and an amenity of temper & manners, exceeded in no instance to which I could refer.
With this view of his capacity to be useful to his country and the principles guarantying a proper exertion of it, I can not but hope that suitable occasions may present themselves for preventing a loss to the public of the services of a citizen, so highly entitled to its confidence.
With the highest consideration & regard, I remain Yours.
TO JOHN ADAMS.1
May 22d, 1817.
I have received your favor of April 22d, with the two volumes bearing the name of Condorcet. If the length of time they remained in your hands had been in the least inconvenient to me, which was not the case, the debt would have been overpaid by the interesting observations into which you were led by your return of them.
The idea of a Government “in one centre,” as expressed and espoused by this Philosopher and his theoretic associates, seems now to be every where exploded. And the views which you have given of its fallacy will be a powerful obstacle to its revival anywhere. It is remarkable that in each of our States which approached nearest to the theory changes were soon made, assimilating their constitutions to the examples of the other States, which had placed the powers of Government in different depositories, as means of controlling the impulse and sympathy of the passions, and affording to reason better opportunities of asserting its prerogatives.
The great question now to be decided, and it is one in which humanity is more deeply interested than in any political experiment yet made, is, whether checks and balances sufficient for the purposes of order, justice, and the general good, may not be created by a proper division and distribution of power among different bodies, differently constituted, but all deriving their existence from the elective principle, and bound by a responsible tenure of their trusts. The experiment is favored by the extent of our Country, which prevents the contagion of evil passions; and by the combination of the federal with the local systems of Government, which multiplies the divisions of power, and the mutual checks by which it is to be kept within its proper limits and direction. In aid of these considerations much is to be hoped from the force of opinion and habit, as these ally themselves with our political institutions. I am running, however, into reflections, without recollecting that all such must have fallen within the comprehensive reviews which your mind has taken of the principles of our Government, and the prospects of our Country.
I have always been much gratified by the favorable opinion you have been pleased occasionally to express of the public course pursued while the Executive trust was in my hands, and I am very thankful for the kind wishes you have added to a repetition of it. I pray you to be assured of the sincerity with which I offer mine, that a life may be prolonged which continues to afford proofs of your capacity to enjoy and make it valuable.
TO D LYNCH, JUNR.mad. mss.
Montpellier, June 27, 1817.
I have recd. your letter of the 18th inst. informing me that “the Amn. Society for the encouragement of domestic Manufactures” have been pleased to elect me one of its members.
Altho’ I approve the policy of leaving to the sagacity of individuals, and to the impulse of private interest, the application of industry & capital, I am equally persuaded, that in this as in other cases, there are exceptions to the general rule, which do not impair the principle of it. Among these exceptions, is the policy of encouraging domestic manufactures, within certain limits, and in reference to certain articles.
Without entering into a detailed view of the subject, it may be remarked, that every prudent Nation will wish to be independent of other Nations for the necessary articles of food, of raiment, and of defence; and particular considerations applicable to the U. S. seem to strengthen the motives to this independence.
Besides the articles falling under the above description, there may be others for manufacturing which, natural advantages exist, which require temporary interpositions for bringing them into regular & successful activity.
When the fund of industry is acquired by emigrations from abroad, and not withdrawn or with-held, from other domestic employments, the case speaks for itself.
I will only add, that among the articles of consumption and use the preference in many cases, is decided merely, by fashion or by habits. As far as an equality, and still more where a real superiority is found in the articles manufactured at home, all must be sensible that it is politic and patriotic to encourage a preference of them, as affording a more certain source of supply for every class, and a more certain market for the surplus products of the agricultural class.
With these sentiments, I beg you to make my acknowledgments for the mark of distinction conferred on me; and which I accept from a respect for the Society and for its objects rather than from any hope of being useful as a Member.
To yourself Sir, I tender my friendly respects.
TO RICHARD RUSH.mad. mss.
Montpellier, June 27, 1817.
I have recd. your two favors of the 18 & 20th inst.1 I am promised a visit from Mr. Jefferson the ensuing month, and shall not fail to communicate to him the one you note for that purpose.
I readily conceive that Mr. Correa,2 may feel some conflict in his present position, between his two characters of Philanthropist and Plenipotentiary; and that he may infer some indulgence towards the latter from a respect to the former. He ought not however to impose on you a conflict between this kind feeling in the Govt. and its self-respect. It is both illiberal & impolitic, and necessarily extorts the admonitions you so gently convey to him.
In assuming a guardianship of our character in Europe, he committed to say the least, a marked indelicacy; and his avowed resort to the Press as the medium of giving information to the public here, was a still greater aberration. His regard for our National reputation if sincere, might have been manifested in a less exceptionable mode, than in an official conversation. And his consciousness of the wrongfulness of a direct communication to the people, is betrayed by the flimsiness of his apology. A silly reason from a wise man is never the true one.
The British doctrine of Blockades has given rise to error & irregularity in the practice of other nations. In strictness, the blockade notifies itself, and no other notification can be admitted by Neutrals who understand their rights as having any other effect, than as a friendly caution agst a probable danger. But even in this sense, the notification ought to be to the Govt. which may make the use of it deemed proper. This Govt. has never formally promulgated the blockades, more than any other regulations of foreign Govts. The most that seems admissible in such cases, is to let the public be informally apprized of them that individuals may not ignorantly incur just penalties. In one instance an answer was given by the Dept. of State to a notification of a B. Blockade by Mr. Merry, which according to my recollection explained the sense in which it was recd. and precluded the idea, that anything short of an actual attempt to violate a legal blockade, could subject neutral vessels to interruption on the high seas. Notwithstanding these views of the subject, I am not sure, that foreign Consuls in our ports may not have addressed notifications to our Merchants through the Newspapers. And it may be worth enquiry whether something of the sort was not done by Mr. Onis, perhaps prior to his reception as public Minister.
It is to be regretted that any difficulties should have arisen with Portugal, the only recognized Nation, beside ourselves on this Hemisphere, and particularly that the most enlightened and esteemed foreigner among us should be the pivot on which they turn. It is not the less necessary however, to make these considerations, as you are making them, subordinate to the rights of our Country and the honor of its Govt. As far as these will permit, conciliation can in no case be more properly intermingled.
May not the event at Pernambuco, if not caused by actual oppression, tend to give at the present moment an unfavorable turn to the sentiment of European Sovereigns in relation to the revolutionary Scene in S. America? The struggle of the Spanish part of it having the appearance of shaking off a foreign yoke, appeals merely to the interest & sympathy of those Sovereigns. That in the Brazils, may be viewed by them as an attack on a domestic throne; and as adding an example in the New World, to those which have inspired so much alarm in the Old.
TO JAMES MONROE.mad. mss.
Montpellier, Novr 29, 1817.
Your favor of the 24th. has just been recd. I am fully aware of the load of business on your hands preparatory to the meeting of Congress. The course you mean to take in relation to Roads & Canals, appears to be best adapted to the posture in which you find the case. A reluctance has generally been felt to include amendments to the Constitution among Executive recommendations to Congs. but it seems to be called for on the present occasion as preferable to arresting their deliberations, by a notice though the result will be negatived, or to meeting the result with an unexpected negative. For myself, I had not supposed that my view1 of the Constitution could have been unknown, and I felt with great force the delicacy of giving intimations of it, to be used as a bar or a clog to a depending measure.
The expediency of vesting in Congs a power as to roads & Canals I have never doubted, and there has never been a moment when sucha proposition to the States was so likely to be approved. A general power to establish Seminaries, being less obvious and affecting more the equilibrium of influence between the National & State Govts. is a more critical experiment. The feelings awakened by the proposed University within the Congressional District, are a proof of the opposition which may be looked for. I should consider it as at least essential that the two propositions whatever may be the modification of the latter shd. be so distinct, that the rejection of the one by the States should not be inconsistent with the adoption of the other.
It is very grateful to have such an overflowing Treasury, especially when every other nation is on the brink, if not in the abyss of bankruptcy. A natural effect is, the prevailing desire that the taxes may be reduced, particularly the internal taxes which are most seen & felt. May it not however deserve consideration whether the Still tax which is a moralizing as well as a very easy, productive tax wd. not be advantageously retained, even at the expence of revenue from foreign trade. Why not press on the Whisky drinkers rather than the Tea & Coffee drinkers, or the drinkers of the lighter kinds of Wine. The question will depend much I am aware on the public opinion and on the expence of collecting a solitary internal tax, both of which points will be better understood in the Cabinet than they can be by the fireside, and in the result there I shall rest with perfect confidence. I make the same remark with respect to the influence which the disbanding at this moment of a conspicuous portion of our fiscal strength may have on the calculations of any other power, particularly Spain.
Health & prosperity.
TO JAMES MONROE.mad. mss.
Decr. 9, 1817.
The mail of Saturday brought me the Copy of your message. It is a fine landscape of our situation; and cannot fail to give pleasure at home, and command respect abroad. The recommendation of a repeal of taxes, is happily shaped: so also the introduction of the subject of Amending the Constitution. The only questions which occur relate to the proposed suppression of the establishment at Amelia Island, not within our territorial claim; and to the latitude of the principle on which the right of a Civilized people is asserted over the lands of a savage one. I take for granted that the first point was well considered. And the latter may be susceptible of qualifying explanations. I observe you say nothing of a remodelling of the Judiciary. Perhaps you may have in reserve a special message, or you may think it best to let the subject originate in Congress; or it may not appear to you in the light it does to me. I have long thought a systematic change in that Dept. proper; and should have pressed it more when in office, but for the circumstance, that it involved a personal accommodation where I might be supposed to feel an interest biasing my judgment, and diminishing the attention paid to my opinion.
TO J. Q. ADAMS.1mad. mss.
Montpellier, Decr. 23, 1817.
I recd. two days ago your favor of the 15 with the written & printed accompaniments.
I am glad to find that your personal interviews with Mr. Bentham afforded an entertainment which may have been some recompence for the trouble which I contributed to give you in relation to him.1 The celebrity which this Philosophic politician has acquired abroad as well as in his own Country, does not permit one to doubt the extent of his capacity or of his researches; and there is still less room to question the philanthropy which adorns his character. It is unfortunate that he has not added to his merits a style and manner of conveying his ideas which would do more justice to their profoundness and importance. With all his qualifications however I greatly overrate or he greatly underrates the task in which he has been so anxious to employ his intellectual labors and treasures, for the reformation of our Code of laws, especially in the advanced age at which the work was to be commenced. And I own that I find some difficulty in reconciling the confidence he feels in the adequacy of his powers not only for a digest of our Statutes into a concise and clear system, but a reduction of our unwritten to a text law, with that penetrating and accurate judgment for which he has the reputation. The disinterestedness and friendly zeal, nevertheless, which dictated the offer of his services to our Country are entitled to its acknowledgments, and no one can join in them with more cordiality than myself.
I have looked over & return the letters from Govr. Plumer and his son. The work conceived by the latter, and the manner in which he has presented an outline of it, indicate talents which merit cultivation & encouragement. The best answer I can give to your communication on the subject of his wish for a copy of the Journal of the Convention, is to state the circumstance, that at the close of the Convention, the question having arisen what was to be done with the Journal & the other papers, and it being suggested that they ought to be either destroyed or deposited in the Custody of the Presidt. it was determined that they should remain in his hands subject only to the orders of the National Legislature. Whether a publication of them ought to be promoted, as having a useful tendency, you will probably be better able to decide, on a perusal of the document than one who cannot take the same abstract view of the subject.1
I cannot be insensible to the terms in which you refer to the official relations which have subsisted between us, but must disclaim the obligations which you consider as lying on your side. The results of what took place on mine prove that I only avoided the demerit of a different course. Be pleased Sir to accept assurances of my continued esteem and of my friendly respects.
TO HENRY ST. GEORGE TUCKER.mad. mss.
Montp. Decr 23, 1817.
I have recd. your favor of the 18th, inclosing the Report on Roads & Canals.2
I respect too much the right and the duty of the Reps of the people to examine for themselves, the merits of all questions before them, and am too conscious of my own fallibility, to view the most rigid & critical examination of the particular question referred to your Committee, with any other feeling than a solicitude for a result favorable to truth and the public good.
I am not unaware that my belief, not to say knowledge of the views of those who proposed the Constitution, and, what is of more importance my deep impression as to the views of those who bestowed on it the stamp of Authority, may influence my interpretation of the Instrument. On the other hand it is not impossible, that those who consult the Instrument without a danger of that bias, may be exposed to an equal one in their anxiety to find in its text an authority for a particular measure of great apparent Utility.
I must pray you, my dear Sir, to be assured that, altho’ I cannot concur in the latitude of Construction taken in the Report, or in the principle that the Consent of States, even of a single one, can enlarge the jurisdiction of the Genl. Govt or in the force & extent allowed to precedents & analogies introduced into the Report, I do not permit this difference of opinion to diminish my esteem for the talents, or my confidence in the motives of its Author. I am far more disposed to acknowledge my thankfulness, for the polite attention shewn in forwarding the document, and for the friendly expressions which accompanied it. Be pleased to accept a sincere return of them.
TO JAMES MONROE.mad. mss.
Montpellier, Dec. 27, 1817.
Your favor of the 22d has been duly recd. I am so much aware that you have not a moment to spare from your public duties, that I insist on your never answering my letters out of mere civility. This rule I hope will be applied to the present as well as future letters.
My quere as to the expedition agts. Amelia Island turned solely on the applicability of the Executive power to such a case. That relating to the right to Indian lands was suggested by the principle which has limited the claim of the U. S. to a right of pre-emption. It seemed also that an unqualified right of a Civilized people to land used by people in the hunter-state, on the principle that the earth was intended for those who would make it most conducive to the sustenance & increase of the human race, might imply a right in a people cultivating it with the Spade, to say to one using the plow, either adopt our mode, or let us substitute it ourselves. It might also be not easy to repel the claims of those without land in other Countries, if not in our own, to vacant lands within the U. S. likely to remain for a long period unproductive of human food. The quere was not meant to contest the doctrine of the Message, under qualifications which were probably entertained without being specified.
The Cumberland road having been a measure taken during the administration of Mr. Jefferson, and, as far as I recollect, not then brought to my particular attention, I cannot assign the grounds assumed for it by Congress, or which produced his sanction. I suspect that the question of Constitutionality was but slightly if at all examined by the former. And that the Executive assent was doubtingly or hastily given. Having once become a law, and being a measure of singular utility, additional appropriations took place, of course under the same Administration, and, with the accumulated impulse thence derived, were continued under the succeeding one, with less of critical investigation perhaps than was due to the case. Be all this as it may, the case is distinguished from that now before Congress, by the circumstances 1. that the road was undertaken essentially for the accommodation of a portion of the Country with respect to which Congs. have a general power not applicable to other portions. 2. that the funds appropriated, & which alone have been applied, were also under a general power of Congs. not applicable to other funds. As a precedent, the case is evidently without the weight allowed to that of the National Bank which had been often a subject of solemn discussion in Congs. had long engaged the critical attention of the public, and had received reiterated & deliberate sanctions of every branch of the Govt., to all which had been superadded many positive concurrences of the States, and implied ones by the people at large. The Bank case is analogous to that of the Carriage tax, which was generally regarded by those who opposed the Bank as a direct tax & therefore unconstitutional, and did not receive their acquiescence untill these objections were superseded by the highest Judicial as well as other sanctions. As to the case of post roads & military roads; instead of implying a general power to make roads, the constitutionality of them must be tested by the bona fide object of the particular roads. The Post cannot travel, nor troops march without a road. If the necessary roads cannot be found, they must of course be provided.
Serious danger seems to be threatened to the genuine sense of the Constitution, not only by an unwarrantable latitude of construction, but by the use made of precedents which cannot be supposed to have had in the view of their Authors, the bearing contended for, and even where they may have crept, thro’ inadvertence, into acts of Congs & been signed by the Executive at a midnight hour, in the midst of a group scarcely admitting perusal, & under a weariness of mind as little admitting a vigilant attention.
Another & perhaps a greater danger is to be apprehended from the influence which the usefulness & popularity of measures may have on questions of their Constitutionality. It is difficult to conceive that any thing short of that influence cd. have overcome the constitutional and other objections to the Bill on roads & Canals which passed the 2 Houses at the last Session.
These considerations remind me of the attempts in the Convention to vest in the Judiciary Dept. a qualified negative on Legislative bills. Such a Controul, restricted to Constitutional points, besides giving greater stability & system to the rules of expounding the Instrument, would have precluded the question of a Judiciary annulment of Legislative Acts. But I am running far beyond the subject presented in your letter, and will detain you no longer than to assure you of my highest respect & sincerest regard.
[1 ]The bill was drawn up by John C. Calhoun, who was much surprised when Madison vetoed it. It provided that the bonus and dividends of the United States from the United States Bank should constitute a fund for internal improvements.
[1 ]This letter, probably handed to Graham just before Madison left the Presidency, was one of the few letters of recommendation for office written by Madison. Soon after his return to Montpelier he had the following circular letter printed:
[1 ]From the Works of Madison (Cong. Ed.).
[1 ]Rush was serving as Secretary of State ad interim until John Quincy Adams entered upon his duties September 22, 1817
[2 ]José Correa da Serra, Minister Plenipotentiary of Portugal from July 22, 1816, to November 9, 1820, was a noted figure in Washington society. He was the author of the saying that Washington was a “city of magnificent distances.” The difficulty alluded to in this letter arose from a publication in the National Intelligencer of May 22, by the Legation, of the blockade of the port of Pernambuco and adjacent coasts. On May 24 Rush wrote the Minister to ask if the publication was authoritative, and, being informed that it was, on May 28 addressed him a stiff note, saying he should have addressed his information to the government and not to the public.—D. of S. MSS. Notes.
[1 ]See Hamilton’s corresponding opinion in his Arg. for the Bank power, published in his works in 3 vols.—(Madison’s Note.)
[1 ]Now the Secretary of State.
[1 ]Jeremy Bentham sent a long letter of forty-one pages to Madison, October 30, 1811, offering to draw up “a complete body of law; in one word, a pannomian, or as much of it as the life and health of a man, whose age wanted little of four and sixty, might allow of” for the United States or for any of the states. This letter was not answered till Adams went to London as minister, when Madison gave him a reply to deliver to Bentham dated May 8, 1816, in which he politely expressed doubt of the feasibility of the scheme. In the course of the letter he said: “With respect to the unwritten law, it may not be improper to observe, that the extent of it has been not a little abridged, in this Country, by successive events. A certain portion of it was dropped by our emigrant forefathers as contrary to their principles, or inapplicable to their new situation. The Colonial Statutes had a further effect in amending and diminishing the mass. The revolution from Colonies to Independent States, capped off other portions. And the changes which have been constantly going on since this last event, have everywhere made, and are daily making further reductions.” Under date of June, 1817, Bentham wrote a circular letter to the Governor of each of the states enclosing a copy of his letter of Oct. 30, 1811, to Madison. All the correspondence was published in London in 1817, under the title, Papers Relative to Codification and Public Instruction: Including Correspondence with the Russian Emperor, and Divers Constituted Authorities in the American United States.
[1 ]Published in 1819. See ante, Vol. III, p. 14.
[2 ]Tucker’s report was submitted to the House December 15th.—Annals of Cong., 15th Cong., 1st Sess., vol. i., p. 415.