The Letter and Message were read, and ordered to be printed for the use
of the Senate.
The papers referred to in the Message were in part read, and the Senate
adjourned.
WEDNESDAY, December 9.
The Senate proceeded to the appointment of a Chaplain to Congress on
their part, and the Rev. Mr. GANTT was elected.
THURSDAY, December 10.
_Resolved_, That James Mathers, Sergeant-at-Arms and Doorkeeper to the
Senate, be, and he is hereby, authorized to employ one additional
assistant, and two horses, for the purpose of performing such services
as are usually required of the Doorkeeper to the Senate; and that the
sum of twenty-eight dollars be allowed him weekly for the purpose during
the session, and for twenty days after.
FRIDAY, December 11.
JOHNATHAN MASON, from the State of Massachusetts, and JAMES SHEAFE, from
the State of New Hampshire, severally attended.
MONDAY, December 14.
JAMES HILLHOUSE, from the State of Connecticut, and DWIGHT FOSTER, from
the State of Massachusetts, severally attended.
A message from the House of Representatives informed the Senate that the
House have elected the Reverend WILLIAM PARKINSON a Chaplain to Congress
on their part.
SATURDAY, December 19.
GOUVERNEUR MORRIS, from the State of New York, attended.
THOMAS SUMTER, appointed a Senator by the Legislature of the State of
South Carolina, in the place of their late Senator, Charles Pinckney,
resigned, produced his credentials, was qualified, and took his seat in
the Senate.
MONDAY, December 21.
The credentials of GEORGE LOGAN, appointed a Senator by the Legislature
of the State of Pennsylvania, were presented and read; and the
affirmation prescribed by law was administered by the President.
TUESDAY, December 22.
DAVID STONE, from the State of North Carolina, attended.
MONDAY, December 28.
JOHN EWING COLHOUN, appointed a Senator by the Legislature of the State
of South Carolina, produced his credentials, was qualified, and took his
seat in the Senate.
THURSDAY, December 31.
Mr. BRECKENRIDGE presented the petition of Isaac Zane, stating that he
was made a prisoner at the age of nine years by the Wyandot Indians,
with whom he remained until he became of age; had a family by a woman of
that nation, and a tract of land was assigned him by the said nation, on
a branch of the Great Miami, and which tract of land was ceded to the
United States by a recent treaty with the said Wyandot Indians, and
praying such relief as may be deemed equitable; and the petition was
read, and committed to Messrs. BRECKENRIDGE, TRACY, and OGDEN, to
consider and report thereon.
TUESDAY, January 5, 1802.
Mr. BROWN, from the State of Kentucky, attended.
_Reporting the Debates._
The PRESIDENT laid before the Senate a letter signed Samuel H. Smith,
stating that he was desirous of taking notes of the proceedings of the
Senate, in such manner as to render them correct: Whereupon,
_Resolved_, That any stenographer desirous to take the debates of the
Senate on Legislative business, may be admitted for that purpose, at
such place within the area of the Senate Chamber as the President may
allot:
And, on motion to reconsider the above resolution, it passed in the
affirmative--yeas 17, nays 9.
YEAS.--Messrs. Anderson, Breckenridge, Cocke, Dayton,
Ellery, Dwight Foster, Hillhouse, Howard, Logan, Jonathan
Mason, Morris, Ogden, Olcott, Sumter, Tracy, White, and
Wright.
NAYS.--Messrs. Baldwin, Brown, Chipman, T. Foster,
Franklin, Jackson, Nicholas, Sheafe, and Stone.
On motion, to amend the resolution, by adding, after the word
stenographer, "He having given bond in the sum of ----, with two
sufficient sureties, in the sum of ---- each, for his good conduct," it
passed in the negative--yeas 10, nays 18, as follows:
YEAS.--Messrs. Chipman, Dayton, Dwight Foster, Hillhouse,
Howard, Morris, Ogden, Olcott, Sheafe, and Tracy.
NAYS.--Messrs. Anderson, Baldwin, Breckenridge, Brown,
Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson,
Logan, S. T. Mason, J. Mason, Nicholas, Stone, Sumter,
White, and Wright.
On motion, to agree to the original resolution, amended by adding the
words "or note-taker," after the words stenographer, it passed in the
affirmative--yeas 16, nays 12, as follows:
YEAS.--Messrs. Anderson, Baldwin, Breckenridge, Brown,
Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson,
Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright.
NAYS.--Messrs. Chipman, Dayton, Dwight Foster, Hillhouse,
Howard, J. Mason, Morris, Ogden, Olcott, Sheafe, Tracy, and
White.
So it was _Resolved_, That any stenographer, _or note-taker_, desirous
of taking the debates of the Senate on Legislative business, may be
admitted for that purpose at such place, within the area of the Senate
Chamber, as the President shall allot.[63]
WEDNESDAY, January 6.
_Judiciary System._
Mr. MASON called for the reading of the Message, which was in part read;
when the further reading of the whole document was suspended, and that
part only read, which relates to the Judiciary System.
Upon which Mr. BRECKENRIDGE, from Kentucky, rose, and stated that two
days ago he had given notice that on this day he would submit to the
consideration of the Senate two resolutions respecting the Judiciary
Establishment of the United States. As, however, those resolutions were
not necessarily connected, and as they might be distinctly discussed, he
would at present confine himself to moving the first resolution; without
however foreclosing to himself the right of submitting the second after
the disposition of the first. He, therefore, moved that the act passed
last session _respecting the Judiciary Establishment_ of the United
States be repealed.
[This is the act which created sixteen new circuit judges.]
FRIDAY, January 8.
_Judiciary System._
Agreeably to the order of the day, the Senate proceeded to the
consideration of the motion made on the 6th instant, to wit:
"That the act of Congress passed on the 13th day of
February, 1801, entitled 'An act to provide for the more
convenient organization of the Courts of the United
States,' ought to be repealed."[64]
Mr. BRECKENRIDGE then rose and addressed the PRESIDENT, as follows:
It will be expected of me, I presume, sir, as I introduced the
resolution now under consideration, to assign my reasons for wishing a
repeal of this law. This I shall do; and shall endeavor to show:
1. That the law is unnecessary and improper, and was so at its passage;
and
2. That the courts and judges created by it, can and ought to be
abolished.
1st. That the act under consideration was unnecessary and improper, is,
to my mind, no difficult task to prove. No increase of courts or judges
could be necessary or justifiable, unless the existing courts and judges
were incompetent to the prompt and proper discharge of the duties
consigned to them. To hold out a show of litigation, when in fact little
exists, must be impolitic; and to multiply expensive systems, and create
hosts of expensive officers, without having experienced an actual
necessity for them, must be a wanton waste of the public treasure.
The document before us shows that, at the passage of this act, the
existing courts, not only from their number, but from the suits
depending before them, were fully competent to a speedy decision of
those suits. It shows, that on the 15th day of June last, there were
depending in all the circuit courts, (that of Maryland only excepted,
whose docket we have not been furnished with,) one thousand five hundred
and thirty-nine suits. It shows that eight thousand two hundred and
seventy-six suits of every description have come before those courts, in
ten years and upwards. From this it appears, that the annual average
amount of suits has been about eight hundred.
But sundry contingent things have conspired to swell the circuit court
dockets. In Maryland, Virginia, and in all the Southern and
South-western States, a great number of suits have been brought by
British creditors; this species of controversy is nearly at an end.
In Pennsylvania, the docket has been swelled by prosecutions in
consequence of the Western insurrection, by the disturbances in Bucks
and Northampton Counties: and by the sedition act. These I find amount
in that State to two hundred and forty suits.
In Kentucky, non-resident land claimants have gone into the federal
court from a temporary convenience: because, until within a year or two
past, there existed no court of general jurisdiction co-extensive with
the whole State. I find, too, that of the six hundred and odd suits
which have been commenced there, one hundred and ninety-six of them have
been prosecutions under the laws of the United States.
In most of the States there have been prosecutions under the sedition
act. This source of litigation is, I trust, for ever dried up. And,
lastly, in _all_ the States a number of suits have arisen under the
excise law; which source of controversy will, I hope, before this
session terminates, be also dried up.
But this same document discloses another important fact; which is, that
notwithstanding all these untoward and temporary sources of federal
adjudication, the suits in those courts are _decreasing_; for, from the
dockets exhibited (except Kentucky and Tennessee, whose suits are summed
up in the aggregate) it appears, that in 1799 there were one thousand
two hundred and seventy-four, and in 1800 there were six hundred and
eighty-seven suits commenced; showing a decrease of five hundred and
eighty-seven suits.
Could it be necessary then to _increase_ courts when suits were
_decreasing_? Could it be necessary to multiply judges, when their
duties were diminishing? And will I not be justified, therefore, in
affirming, that the law was unnecessary, and that Congress acted under a
mistaken impression, when they multiplied courts and judges at a time
when litigation was actually decreasing?
But, sir, the decrease of business goes a small way in fixing my opinion
on this subject. I am inclined to think, that so far from there having
been a necessity at this time for an increase of courts and judges, that
the time never will arrive when America will stand in need of
thirty-eight federal judges. Look, sir, at your constitution, and see
the judicial power there consigned to federal courts, and seriously ask
yourself can there be fairly extracted from those powers subjects of
litigation sufficient for six supreme and thirty-two inferior court
judges? To me it appears impossible.
The judicial powers given to the federal courts were never intended by
the constitution to embrace, exclusively, subjects of litigation, which
could, with propriety, be left with the State courts. Their jurisdiction
was intended principally to extend to great national and foreign
concerns. Except cases arising under the laws of the United States, I do
not at present recollect but three or four kinds in which their power
extends to subjects of litigation, in which private persons only are
concerned. And can it be possible, that with a jurisdiction embracing so
small a portion of private litigation, in a great part of which the
State courts might, and ought to participate, that we can stand in need
of thirty-eight judges, and expend in judiciary regulations the annual
sum of $137,000?
No other country, whose regulations I have any knowledge of, furnishes
an example of a system so prodigal and extensive. In England, whose
courts are the boast, and said to be the security of the rights of the
nation, every man knows there are but twelve judges and three principal
courts. These courts embrace, in their original or appellate
jurisdiction, almost the whole circle of human concerns.
The King's Bench and Common Pleas, which consist of four judges each,
entertain all the common law suits of 40_s._ and upwards, originating
among nine millions of the most commercial people in the world. They
moreover revise the proceedings of not only all the petty courts of
record in the kingdom, even down to the courts of piepoudre, but also of
the Court of King's Bench in Ireland; and these supreme courts, after
centuries of experiment, are found to be fully competent to _all_ the
business of the kingdom.
I will now inquire into the power of Congress to put down these
additional courts and judges.
First, as to the courts, Congress are empowered by the constitution
"from time to time, to ordain and establish inferior courts." The act
now under consideration, is a legislative construction of this clause
in the constitution, that Congress may abolish as well as create these
judicial officers; because it does expressly, in the twenty-seventh
section of the act, abolish the then existing inferior courts, for the
purpose of making way for the present. This construction, I contend, is
correct; but it is equally pertinent to my object, whether it be or be
not. If it be correct, then the present inferior courts may be abolished
as constitutionally as the last; if it be not, then the law for
abolishing the former courts, and, establishing the present, was
unconstitutional, and consequently repealable.
But independent of this legislative construction, on which I do not
found my opinion, nor mean to rely my argument, there is little doubt
indeed, in my mind, as to the power of Congress on this law. The first
section of the third article vests the judicial power of the United
States in one Supreme Court and such inferior courts as Congress may,
from time to time, ordain and establish. By this clause Congress _may_,
from time to time, establish inferior courts; but it is clearly a
discretionary power, and they _may not_ establish them. The language of
the constitution is very different when regulations are not left
discretional. For example, "The trial," says the constitution, "of all
crimes '(except in cases of impeachment) shall be by jury:
representatives and direct taxes shall be apportioned according to
numbers. All revenue bills shall originate in the House of
Representatives,'" &c. It would, therefore, in my opinion, be a
perversion, not only of language, but of intellect, to say, that
although Congress may, from time to time, establish inferior courts,
yet, when established, that they shall not be abolished by a subsequent
Congress possessing equal powers. It would be a paradox in legislation.
2d. As to the judges. The Judiciary Department is so constructed as to
be sufficiently secured against the improper influence of either the
Executive or Legislative Departments. The courts were organized and
established by the Legislature, and the Executive creates the judges.
Being thus organized, the constitution affords the proper checks to
secure their honesty and independence in office. It declares they shall
not be removed from office during good behavior; nor their salaries
diminished during their continuance in office. From this it results,
that a judge, after his appointment, is totally out of the power of the
President, and his salary secured against legislative diminution, during
his continuance in office. The first of these checks, which protects a
judge in his office during good behavior, applies to the President only,
who would otherwise have possessed the power of removing him, like all
other officers, at pleasure; and the other check, forbidding a
diminution of their salaries, applies to the Legislature only. They are
two separate and distinct checks, furnished by the constitution against
two distinct departments of the Government; and they are the only ones
which are or ought to have been furnished on the subject.
But because the constitution declares that a judge shall hold his office
during good behavior, can it be tortured to mean, that he shall hold his
office after it is abolished? Can it mean, that his tenure should be
limited by behaving well in an office which did not exist? Can it mean
that an office may exist, although its duties are extinct? Can it mean,
in short, that the shadow, to wit, the judge, can remain, when the
substance, to wit, the office, is removed? It must have intended all
these absurdities, or it must admit a construction which will avoid
them.
The construction obviously is, that a judge should hold an existing
office, so long as he did his duty in that office; and not that he
should hold an office that did not exist, and perform duties not
provided by law. Had the construction which I contend against been
contemplated by those who framed the constitution, it would have been
necessary to have declared, explicitly, that the judges should hold
their offices and their salaries during good behavior.
Let me not be told, sir, that the salaries in the present case are
inconsiderable, and ought not to be withheld; and that the doctrine is
not a dangerous one. I answer, it is the principle I contend against;
and if it is heterodox for one dollar, it is equally so for a million.
But I contend the principle, if once admitted, may be extended to
destructive lengths. Suppose it should hereafter happen, that those in
power should combine to provide handsomely for their friends, could any
way so plain, easy, and effectual, present itself, as by creating
courts, and filling them with those friends? Might not sixty as well as
sixteen, with salaries of twenty thousand, instead of two thousand
dollars, be provided for in this way?
There is another difficulty under this construction still to encounter,
and which also grows out of the constitution: By the constitution, a new
State may be formed by the junction of two or more States, with their
assent and that of Congress. If this doctrine, once a judge and always a
judge, be correct, what would you do in such an event, with the district
judges of the States who formed that junction? Both would be
unnecessary, and you would have, in a single State, two judges of equal
and concurrent jurisdiction; or one a real judge, with an office, and
another a quasi judge, without an office. The States also forming such
junction, would be equally embarrassed with their State judges; for the
same construction would be equally applicable to them.
Upon this construction, also, an infallibility is predicated, which it
would be arrogance in any human institution to assume, and which goes to
cut up legislation by the roots. We would be debarred from that which is
indulged to us from a higher source, and on subjects of higher concern
than legislation; I mean a retraction from and correction of our
errors. On all other subjects of legislation we are allowed, it seems,
to change our minds, except on judiciary subjects, which, of all others,
are the most complex and difficult. I appeal to our own statute book to
prove this difficulty: for in ten years Congress have passed no less
than twenty-six laws on this subject.
Mr. J. MASON, of Massachusetts, said, it would be agreed on all hands
that this was one of the most important questions that ever came before
a Legislature. Were he not of this opinion he would not have risen to
offer his sentiments. But he felt so deep an interest in the question,
and from the respect which he entertained for the district of country he
represented, he deemed it his duty to meet the subject, and not be
satisfied with giving to it his silent negative.
The constitution, in the construction of the Executive, Legislative, and
Judiciary Departments, had assigned to each a different tenure. The
President was chosen for four years; the Senate for six years, subject
to a prescribed rotation biennially; the House of Representatives for
two years; and the Judiciary during good behavior. It says to the
President, at the expiration of every four years, you shall revert to
the character of a private citizen, however splendid your talents or
conspicuous your virtue. Why? Because you have assigned to you powers
which it is dangerous to exercise. You have the power of creating
offices and officers. You have prerogatives. The temptation to an abuse
of your power is great. Such has been the uniform experience of ages.
The constitution holds the same language to the Senate and House of
Representatives: It says, it is necessary for the good of society that
you also should revert at short periods to the mass of the people,
because to you are consigned the most important duties of Government,
and because you hold the purse-strings of the nation.
To the Judiciary: What is the language applied to them? The judges are
not appointed for two, four, or any given number of years; but they hold
their appointments for life, unless they misbehave themselves. Why? For
this reason: They are not the depositaries of the high prerogatives of
Government. They neither appoint to office, nor hold the purse-strings
of the country, nor legislate for it. They depend entirely upon their
talents, which is all they have to recommend them. They cannot,
therefore, be disposed to pervert their power to improper purposes. What
are their duties? To expound and apply the laws. To do this with
fidelity and skill, requires a length of time. The requisite knowledge
is not to be procured in a day. These are the plain and strong reasons
which must strike every mind, for the different tenure by which the
judges hold their offices, and they are such as will eternally endure
wherever liberty exists.
On examination, it will be found that the people, in forming their
constitution, meant to make the judges as independent of the
Legislature as of the Executive. Because the duties which they have to
perform, call upon them to expound not only the laws, but the
constitution also; in which is involved the power of checking the
Legislature in case it should pass any laws in violation of the
constitution. For this reason it was more important that the judges in
this country should be placed beyond the control of the Legislature,
than in other countries where no such power attaches to them.
The constitution says: "The Judicial power of the United States shall be
vested in one Supreme Court, and in such inferior courts as the Congress
may, from time to time, ordain and establish. The judges, both of the
Supreme and inferior courts, shall hold their offices during good
behavior, and shall, at stated times, receive for their services a
compensation, which shall not be diminished during their continuance in
office."
Thus it says, "the judges _shall hold_ their offices during good
behavior." How can this direction of the constitution be complied with,
if the Legislature shall, from session to session, repeal the law under
which the office is held, and _remove the office_? He did not conceive
that any words, which human ingenuity could devise, could more
completely get over the remarks that had been made by the gentleman from
Kentucky. But that gentleman says, that this provision of the
constitution applies exclusively to the President. He considers it as
made to supersede the powers of the President to remove the judges. But
could this have been the contemplation of the framers of the
constitution, when even the right of the President to remove officers at
pleasure, was a matter of great doubt, and had divided in opinion our
most enlightened citizens. Not that he stated this circumstance because
he had doubts. He thought the President ought to have the right; but it
did not emanate from the constitution; was not expressly found in the
constitution, but sprang from Legislative construction.
Besides, if Congress have the right to repeal the whole of the law, they
must possess the right to repeal a section of it. If so, they may repeal
the law so far as it applies to a particular district, and thus get rid
of an obnoxious judge. They may remove his office from him. Would it not
be absurd still to say, that the removed judge held his office during
good behavior?
The constitution says: "The judges shall, at stated times, receive for
their services a compensation, which shall not be diminished during
their continuance in office." Why this provision? Why guard against the
power to deprive the judges of their pay in a diminution of it, and not
provide against what was more important, their existence?
Still, if the gentlemen would not agree with him as to the
unconstitutionality of the measure proposed, he would ask, was it
expedient? Were there not great doubts existing throughout the United
States? Ought not each gentleman to say, though I may have no doubts or
hesitancy, are not a large portion of our citizens of opinion that it
would violate the constitution? If this diversity of sentiment exists,
ought not the evils under the judiciary law to be very great before we
touch it? Ought we not to aim at harmonizing, instead of dividing our
citizens? Was not the constitution a sacred instrument; an instrument
ever to be approached with reverence; an instrument which ought not
lightly to be drawn from its hallowed retreat, and subjected to the flux
and reflux of passion? But where is the evil complained of? This system
was established only last session; scarcely had it been yet originated;
scarcely had we tried it on its very threshold; where then the necessity
of being so pointed, as to destroy a system scarcely formed three days
ago? Does not this manifest precipitation? Will it not manifest more
magnanimity, more rationality, to abide by it until we try it; instead
of taking up a pen and dashing it out of existence?
Mr. MORRIS, of New York.--Mr. President, I am so very unfortunate, that
the arguments in favor of the motion have confirmed my opinion that the
law to which it refers ought not to be repealed. The honorable mover has
rested his proposition on two grounds:
1st. That the judiciary law passed last session is unnecessary; and,
2dly. That we have a right to repeal it, and ought to exercise that
right.
Gentlemen say, recur to the ancient system. What is the ancient system?
Six judges of the Supreme Court to ride the circuit of America twice a
year, and sit twice a year at the seat of Government. Without inquiring
into the accuracy of a statement made by the gentleman respecting the
courts of England, in which, I apprehend, he will find himself deceived,
let me ask what would be the effects of the old system here? Cast an eye
over the extent of our country, and a moment's consideration will show
that the First Magistrate, in selecting a character for the bench, must
seek less the learning of a judge than the agility of a post-boy. Can it
be possible that men advanced in years, (for such alone can have the
maturity of judgment fitting for the office;) that men educated in the
closet--men who, from their habits of life, must have more strength of
mind than of body; is it, I say, possible that such men can be running
from one end of the continent to the other? Or, if they could, can they
find time to hear and decide causes? I have been told by men of eminence
on the bench, that they could not hold their offices under the old
arrangement.
What is the present system? You have added to the old judges seven
district and sixteen circuit judges. What will be the effect of the
desired repeal? Will it not be a declaration to the remaining judges
that they hold their offices subject to your will and pleasure? And
what will be the result of this? It will be, that the check established
by the constitution, wished for by the people, and necessary in every
contemplation of common sense, is destroyed. It had been said, and
truly, too, that Governments are made to provide against the follies and
vices of men. For to suppose that Governments rest upon reason is a
pitiful solecism. If mankind were reasonable, they would want no
Government. Hence, checks are required in the distribution of the power
among those who are to exercise it for the benefit of the people. Did
the people of America vest all power in the Legislature? No; they had
vested in the judges a check intended to be efficient--a check of the
first necessity, to prevent an invasion of the constitution by
unconstitutional laws--a check which might prevent any faction from
intimidating or annihilating the tribunals themselves.
On this ground, said Mr. MORRIS, I stand to arrest the victory meditated
over the constitution of my country; a victory meditated by those who
wish to prostrate that constitution for the furtherance of their own
ambitious views. Not of him who had recommended this measure, nor of
those who now urge it; for, on his uprightness and their uprightness, I
have the fullest reliance; but of those in the background who have
further and higher objects. These troops that protect the outworks are
to be first dismissed. Those posts which present the strongest barriers
are first to be taken, and then the constitution becomes an easy prey.
Let us then, secondly, consider whether we have constitutionally a power
to repeal this law. [Here Mr. MORRIS quoted the third article and first
section of the constitution.] I have heard a verbal criticism about the
words _shall_ and _may_, which appeared the more unnecessary to me, as
the same word, _shall_, is applied to both members of the section. For
it says: "the judicial power, &c. _shall_ be vested in one Supreme Court
and such inferior courts as the Congress _may_, from time to time,
ordain and establish." The Legislature, therefore, had, without doubt,
the right of determining, in the first instance, what inferior courts
should be established; but when established, the words are imperative, a
part of the judicial power shall vest in them. And "the judges shall
hold their offices during good behavior." They shall receive a
compensation which shall not be diminished during their continuance in
office. Therefore, whether the remarks be applied to the tenure of
office, or the quantum of compensation, the constitution is equally
imperative. After this exposition, gentlemen are welcome to any
advantage to be derived from the criticism on _shall_ and _may_.
MONDAY, January 11.
_Apportionment Bill._
The Apportionment bill, as received from the House of Representatives,
was taken up. This bill fixes the ratio of representation at one member
for every 33,000 persons in each State.
Mr. WELLS moved to strike out 33,000, his object being to introduce
30,000, for which he assigned his reasons at some length.
On this motion a debate of some length ensued, in which the provisions
of the bill as they stood were supported by Messrs. JACKSON, MASON,
WRIGHT, and COCKE; and opposed by Messrs. WELLS and HILLHOUSE.
Mr. WHITE, of Delaware.--Believing as I do, sir, that the minds of
gentlemen on this floor are thoroughly made up as to the present
subject, and that any observations now to be offered will not influence
a single vote, but merely occupy the time of the Senate to no useful
purpose, I shall ask your indulgence but a few moments. I cannot, sir,
sit quietly and see this bill reported by your committee, meditating as
it certainly does a manifest injury to the State I have the honor in
part to represent, pass into a law, without doing more than oppose to it
a silent negative; without holding up my voice and protesting most
solemnly against the extreme injustice of the measure. If, sir, this
bill passes in its present shape, there will be left in the State of
Delaware twenty-eight thousand eight hundred and eleven people
unrepresented in the popular branch of their Legislature. Gentlemen may
say, that this is only a fraction, and that in a general apportionment
of representation, fractional numbers are unavoidable. Sir, I
acknowledge it is only a fraction, but it is a fraction that includes
one-half the population of that State, and amounts, even upon the
present contemplated plan, to within four thousand of the number
sufficient to gain another Representative. Sir, twenty-eight or thirty
thousand would, to one of the large States, be an inconsiderable
fraction. Apportion that number, for instance, among the twenty-one
Representatives from Virginia, and you give to each member but a
fraction of about thirteen hundred; whereas from Delaware, there will be
but one representative, and over and above his legal number a fraction
of near twenty-nine thousand people unrepresented. Is this fair, sir? Is
this equitable? I ask, gentlemen, is it not unfriendly and wrongful? And
can it be possible, sir, that the transcendent omnipotence of a majority
have fated, if I may use the expression, this injustice upon a sister
State? Suppose, sir, Delaware to have but one Representative and
Virginia twenty, a fraction of five thousand to the former is equal to a
redundant number of one hundred thousand to the latter; or take, sir,
the present case, and you will find that the fraction of twenty-nine
thousand in the State of Delaware, apportioned upon the representation,
is at least equal to a redundant number in the State of Virginia of
three hundred thousand. If, sir, the divisor is fixed at thirty
thousand, Delaware will have two Representatives; her weight, then, in
the other House, will, in relation to Virginia, be as one to twelve, but
if she is compelled to submit to the divisor of thirty-three thousand,
you allow her but one Representative; you deny her nearly one-half her
rightful influence, and place her on the floor of the House of
Representatives in a relative situation toward Virginia, as one to
twenty-one. Sir, an additional Representative to any of the larger
States is not of the same consequence as another would be to Delaware.
To Virginia, for instance, one is but the twentieth part of her force,
to Delaware it would be one-half her force. Gentlemen may say that
Delaware is the smallest State; but let it be remembered, sir, that her
rights are equally sacred with those of the largest States; and although
her citizens are not so numerous, yet, sir, their State sovereignty and
other constitutional rights are quite as dear and valuable to them, as
the blessing can be to any other people; and, let me add, sir, she is
among the oldest States; her history travels back through the bloody
scenes of your Revolution; she dates her era at your Declaration of
Independence, and I am proud to say, and can do so without detracting
from her neighbors, in proportion to her population, her resources, and
extent, during the severe contest for American liberty, she contributed,
in blood and treasure, as freely to its support and permanent
establishment, as any State in the Union.
Sir, the doctrine urged by some gentlemen that the divisor of thirty
thousand will increase the House of Representatives to a body too large
and unwieldy for the convenient and ordinary purposes of business, seems
to me totally without foundation. The observation and experience of
every man must be sufficient at once to satisfy him that this cannot be
the consequence; we have before our eyes, sir, examples that prove
directly the reverse. This divisor will give to your House of
Representatives but one hundred and fifty-seven members; the State of
Virginia has in the popular branch of her Legislature one hundred and
eighty members, and we have not been told that it is too numerous. The
British House of Commons, before the union with Ireland, consisted of
about five hundred and fifty members, and we heard no complaint of the
numbers; on the contrary, sir, the nation wished a fuller
representation; and it is from that House, too, sir, that, according to
this logic, must be so extremely riotous and disorderly, we have drawn
most of the rules that govern the proceedings of this honorable body.
Again, sir, the nature and spirit of your Government requires a full
representation in the Legislature. It is a Government that must depend
alone for its support upon the affections of the people; and the best
security for their affections is to extend to them, upon as large a
scale as comports with the public safety, the freedom of choice, and
right of representation. In so extensive a country as this, many parts
of which are thinly inhabited, and the election districts consequently
including vast tracts of territory, it must often happen that the
electors are entirely unacquainted with the person for whom they vote;
but if you increase the representation, you reduce the size of the
election districts; you bring the candidate within the very neighborhood
of the electors; they see him, they know him; they are better enabled to
estimate truly his character, and judge of his capacity and disposition
to serve them. This, sir, will secure in a great degree, the constituent
from imposition, and attach to the Representative a higher and more
immediate responsibility; it will inspire the people with confidence in
your Government, and induce them more cheerfully to acquiesce in your
laws. But, above all, sir, the divisor of thirty thousand leaves
throughout the United States a less aggregate of unrepresented fractions
than any divisor you can take; less, permit me to say, sir, by one
hundred and sixteen thousand, than the one contemplated in the bill; and
I am sure gentlemen on all sides of the House wish the country as fairly
represented as possible. To my mind this is a most conclusive argument
in favor of the divisor of thirty thousand.
The question was now taken on the motion to strike out 33,000, and
lost--ayes 11, noes 15.
Mr. MORRIS then moved, and Mr. TRACY seconded the motion to add, after
"one representative for every 33,000," the words "and one representative
for every fractional number of 27,000 persons." The number 27,000 was
used to avoid a violation of the constitution, which prohibits the
allotting to each State more representatives than one for every 30,000.
Thus, in the case of Delaware, the ratio being 33,000, Delaware would be
entitled to one member for 33,000, and one for the fraction of 27,000:
both which numbers would amount to 60,000; which last number entitled a
State to two members without violating the constitution. This motion was
opposed by Messrs. WRIGHT and ANDERSON, and was lost--ayes 10, noes 15.
On the question to agree to the final passage of this bill, it was
determined in the affirmative--yeas 23, nays 5, as follows:
YEAS.--Messrs. Anderson, Baldwin, Breckenridge, Brown,
Chipman, Cocke, Colhoun, Dayton, Ellery, T. Foster, Dwight
Foster, Franklin, Howard, Jackson, Logan, S. T. Mason, J.
Mason, Morris, Nicholas, Sheafe, Stone, Sumter, and Wright.
NAYS.--Messrs. Hillhouse, Olcott, Tracy, Wells, and White.
The bill was then read a third time, and passed.