The Supreme Court has been rendered stationary. Men of age, of learning,

and of experience, are now capable of holding a seat on the bench; they

have time to mature their opinions in causes on which they are called to

decide, and they have leisure to devote to their books, and to augment

their store of knowledge. It was our hope, by the present establishment

of the court, to render it the future pride, and honor, and safety of

the nation. It is this tribunal which must stamp abroad the judicial

character of our country. It is here that ambassadors and foreign agents

resort for justice; and it belongs to this high court to decide finally,

not only on controversies of unlimited value between individuals, and on

the more important collision of State pretensions, but also upon the

validity of the laws of the States, and of this Government. Will it be

contended that such great trusts ought to be reposed in feeble or

incapable hands? It has been asserted that this court will not have

business to employ it. The assertion is supported neither by what is

past, nor by what is likely to happen. During the present session of

Congress, at their last term, the court was fully employed for two weeks

in the daily hearing of causes. But its business must increase. There is

no longer that restraint upon appeals from the circuit court, which was

imposed by the authority of the judge of the court to which the appeal

was to be carried; no longer will the apprehension of a secret

unavoidable bias in favor of the decision of a member of their own body,

shake the confidence of a suitor, in resorting to this court, who thinks

that justice has not been done to him in the court below. The

progressive increase of the wealth and population of the country, will

unavoidably swell the business of the court. But there is a more certain

and unfailing source of employment, which will arise in the appeals from

the courts of the National Territory. From the courts of original

cognizance in this Territory, it affords the only appellate

jurisdiction. If gentlemen will look to the state of property of a vast

amount in this city, they must be satisfied that the Supreme Court will

have enough to do for the money which is paid them.

Mr. RANDOLPH said that he did not rise for the purpose of assuming the

gauntlet which had been so proudly thrown by the Goliath of the adverse

party; not but that he believed even his feeble powers, armed with the

simple weapon of truth, a sling and a stone, capable of prostrating on

the floor that gigantic boaster, armed cap-à-pie as he was; but that he

was impelled by the desire to rescue from misrepresentation the

arguments of his colleague, (Mr. GILES,) who was now absent during

indisposition. That absence, said Mr. R., is a subject of peculiar

regret to me, not only because I could have wished his vindication to

have devolved on abler hands, but because he had to-day lost the triumph

which, yesterday, he could not have failed to enjoy; that of seeing his

opponent reduced to the wretched expedient of perverting and mutilating

his arguments through inability to meet and answer them. Mr. R. said,

that this was the strongest proof which could be given of inadequacy to

refute any position. He, therefore, left to the gentleman the victory

which he had obtained over his own arguments; but, while he felt no

disposition to disturb him in this enjoyment, he hoped he should be

permitted to correct some of the misstatements which had been made of

his colleague's observations.

In the view which he had taken of the conduct of our predecessors, in

the chain of whose measures the law now proposed to be repealed formed

an important link, the funding of the debt of the United States, and the

assumption of those of the individual States, were comprehended. An

attempt is made to construe this disapprobation into a design of

violating the public faith. Mr. R. denied that one syllable had fallen

from his colleague, indicative of a right, or disposition on his part,

to withhold the payment of any public engagements. Against these

destructive measures his colleague had raised his voice; against the

fatal and absurd maxim, that a public debt was a public blessing, he had

indeed protested; but not a word escaped his lips, because no such

sentiment lurked in his heart, which could be construed into a

declaration that the present Legislature possessed the same power over

the engagements of former Legislatures which they possessed over

ordinary laws; that of modifying or abrogating them with the same

freedom which had been exercised in their establishment. Since the

gentleman had betrayed such peculiar sensibility on the subject of the

debt, Mr. R. relied on his support, when a measure should be brought

forward for its final and rapid extinguishment, not by a sponge, but by

a fair reimbursement of one hundred cents for every dollar due.

On other topics, the Algerine depredations, Indian war, &c., it might as

easily be shown that the representation had been equally unfair. He

should not dwell upon them, because they were less calculated to make

the unfavorable impression on the public mind, which had been attempted

on the subject of the debt. He would dismiss them with a single remark:

the uses to which these incidents were applied, and not the events

themselves, formed the subject of his colleague's animadversions.

But to the long catalogue of unpopular acts which have deprived their

authors of the public confidence, the gentleman tells us, he and his

friends were "goaded" by the clamor of their opponents. He solemnly

assures us, that in the adoption of those measures they clearly foresaw

the downfall of their power; but impressed with a conviction that they

were essential to the public good, and disdaining all considerations of

a personal nature, they nobly sacrificed their political existence on

the altar of the general welfare; and we are called upon now to revere

in them the self-immolated victims at the shrine of patriotism. These

are, indeed, lofty pretensions; and although I shall not peremptorily

deny, in this age of infidelity, I may be permitted to doubt them; for I

call upon this committee to decide whether, in this day's discussion,

the gentleman has evinced that purity of heart, or that elevation of

sentiment, which could justify me in clothing him with the attributes of

Curtius or of the Decii?

I wish especially to know, whether the common law of libels which

attaches to this constitution, be the doctrine laid down by Lord

Mansfield, or that which has immortalized Mr. Fox? And whether the

jurisdiction thus usurped over the press, in defiance of an express

amendatory clause, which must be construed to annul every previous

provision, if any such there be, which comes within its purview, be an

example adduced to illustrate the position, which I certainly shall

never contest, that "what the constitution does not permit to be done by

direct means, cannot, constitutionally, be indirectly effected?" But to

reconcile us to this usurpation, we are informed, that the principles of

the common law are favorable only to liberty; that they neither have

been, nor can be enlisted in the cause of persecution. If I did not

misunderstand the gentleman, he said that no prosecution had occurred

under that law. He has therefore never heard of the case of Luther

Baldwin. I speak of the New Jersey case; nor that of Williams. Other

instances, I learn from high authority, have taken place in Vermont.

Mr. R. said he was unhackneyed in the ways of majorities; his experience

had been very limited; but was he to conclude, from these observations,

that it was the common law, the uniform usage heretofore of this

Government, for this House to be the mere instrument for effecting the

Executive will, a Chamber for enregistering Presidential edicts? It is

said, that the document on this subject was one which the Executive had

no right to lay before the House. When did the right of the President to

recommend modifications of the Judiciary system cease? Such

recommendations had heretofore formed a prominent feature in two

successive Executive communications made at the commencement of two

successive sessions of Congress. Did the right of the Executive to

recommend, and of Congress to act, cease at the precise period when the

faultless model of the last session was perfected? Mr. R. said, that the

gentleman from Delaware had taken such a range, and thrown out such a

vast deal of matter, that, in attempting to reply to some of his

observations, he was necessarily led into many desultory remarks. The

present system, it seems, was necessary, from the inevitable corporeal

infirmity of the judges: the unavoidable effect of the tedious probation

indispensable to that venerable station.

Let us compare the former practice with the present theory. The judge of

one of the two districts into which Virginia had been divided, was

contemporary with him at school. He is certainly neither an infirm nor

hoary sage. His associate from Maryland had been an active and gallant

partisan at the siege of Pensacola, during our Revolutionary war: not

contending, however, under those banners where you would have expected

to find a man who occupies so dignified a station under the Government

of the United States; but fighting the battles of his King. Bravely,

yet, alas! unsuccessfully contending against the spirit of

insubordination and jacobinism which threatens to sweep from the earth

every thing valuable to man, against which the gentleman from Delaware

is also eager to enter the lists. The selections which have been made

from either House of Congress seem to have had as little reference to

age and experience, which are said to be indispensable to the Judicial

character. Upon a subject connected with those appointments, we have

been told that the Executive had a right to presume a vacancy in all

cases where a judge of an inferior tribunal had been appointed to a seat

on the bench of a superior court; and that the new office vests, not at

the time when the judge is notified of his promotion, nor at the date of

his acceptance, but from the date of his commission. Mr. R. said, that

he certainly did not mean to contend with the gentleman from Delaware on

points of law, yet he would put a question to that gentleman. It will

readily be conceded, that the vacating of the former office is the

condition of the acceptance of the latter. Suppose a judge, after the

date of his new commission, but prior to his notification or acceptance

thereof, perform a Judicial act, was that act, therefore, invalid? Could

his successor, on the receipt of his commission, exercise the functions

of judge, prior to the resignation of the former incumbent? Could any

office be at the same time in the possession of two persons? Did not

this doctrine imply a right on part of the Government to anticipate the

resignation of any judge, to compel his assent to an act vacating his

office? The new commission, under these circumstances, either did or did

not give a claim to its possessor on the office. If it did not, the

Executive had a right to withhold it. If it did, a judge may be expelled

from office, without his consent, and provided, at any time afterwards

he shall acquiesce, the expulsion is legal. Besides, by what authority

does a member of this House hold his seat under an election previous to

his appointment of district judge of North Carolina? For this office a

commission was issued, as I am credibly informed. But, sir, we shall be

told, that the manner in which this affair was transacted ought not to

affect our decision. It is with me an irrefragable proof of the

inexpediency of the law, and of course conclusive evidence of the

expediency of its repeal.

But the constitution is said to forbid it. And here permit me to express

my satisfaction, that gentlemen have agreed to construe the constitution

by the rules of common sense. This mode is better adapted to the

capacity of unprofessional men, and will preclude the gentleman from

arrogating to himself, and half a dozen other characters in this

committee, the sole right of expounding that instrument, as he had done

in the case of the law which is proposed to be repealed. Indeed, as one

of those who would be unwilling to devolve upon that gentleman the high

priesthood of the constitution, and patiently submit to technical

expositions which I might not even comprehend, I am peculiarly pleased

that we are invited to exercise our understandings in the construction

of this instrument. A precedent, said to be quite analogous, has been

adduced--the decision of the judges of Virginia, on a similar question.

A pamphlet, entitled "A Friend to the Constitution," has been quoted.

Public opinion informs me that this is the production of the pen of a

gentleman who holds a pre-eminent station on the Federal bench. Am I so

to consider it? If this be understood, it is entitled to high respect;

the _facts_, at least, must be unquestionable.

The courts of Virginia consisted of one general court of common law; a

court of chancery, composed of three judges; and a court of admiralty.

The judges of all those courts held their office during good behavior;

and did, by law, constitute a court of appeals. The general court

becoming manifestly incompetent to the extensive duties assigned to it,

a system of circuit courts was adopted in 1787, and the judges of the

court of appeals were appointed to ride the circuits. This law the

judges pronounced unconstitutional, and agreed, unanimously, to

remonstrate against it. After lamenting the necessity of deciding

between the constitution and the law, and that, in a case personally

interesting to themselves, they say, "on this view of the subject, the

following alternatives presented themselves; either to decide the

question, or resign their offices. The latter would have been their

choice, if they could have considered those questions as affecting their

individual interests only." Yes, sir, and such was the character of

those men, that none doubted the sincerity of this declaration. They

then go on to declare, that the Legislature have no right even to

increase their duties, by a modification of the courts; a privilege for

which no one here has contended. In respect, much more, it is believed,

to the characters of those venerable men, than to this opinion, the

Legislature did not enforce the new regulations. The law was

new-modelled, a separate court of appeals established, the judges of

which were to be elected by joint ballot, in conformity with the

constitution. New members were added to the general court, and it was

declared to be their duty to ride the circuits. The judges of chancery,

of the general court, and court of admiralty, who had not been elected,

in pursuance of the constitution, judges of appeals, but on whom that

duty was imposed by law, were relieved from the further discharge of it.

In this arrangement several of the judges were understood to have been

consulted; and on the ballot the six senior judges were elected, five

into the court of appeals, and the sixth in the court of chancery.

Nevertheless, against this law the judges also protested, as an invasion

of the Judiciary establishment, denying the right of the Legislature to

deprive them of office in any other mode than is pointed out in the

constitution, (impeachment;) but to make way for the present salutary

system, they do, in their mere free will, resign their appointments as

judges of the court of appeals, and as they do not hold any separate

commission for that office, which might be returned, they do order the

same to be recorded.

Now, sir, I shall not contend, as I certainly might, and with great

reason, that the practice of Virginia must be considered as settling the

constitutional doctrine of the State, the opinions of individuals,

however enlightened and respectable, notwithstanding; under which

practice two chancellors have been removed from their office of judges

in chancery, as well as of appeals, and the judges of the general court

and court of admiralty also divested of their seats on the bench of the

court of appeals, although a court of appeals was supposed necessary,

and was retained in the new system; nor shall I insist on the disparity

between the stability of the Judicial branch of Government in the eye of

the Constitution of Virginia, and that of the United States,

respectively, as surely I might. For the constitution of Virginia has a

retrospect to pre-existing Judicial establishments, which experience had

tested, which were allowed to be beneficial, and which it is contended

were sanctioned by it. That of the United States, formed when the

Confederacy had no such establishments, is to be created, from time to

time: in other words, to be modified, as experience shall point out

their defects--this power being devolved on a body constituted by

express _unalterable_ provisions. No, sir, I shall not dilate upon these

forcible topics; I will concede, for argument sake, that the doctrine

contended for by the judges of Virginia, was the true constitutional

doctrine, and will apply it to the bill on your table, having first

applied it to the act on which it is intended to operate. Previous to

the existence of that act, the duty of judge of the circuit court was

performed by the judges of the Supreme Court, who constituted a court of

appeals, and by the judges of the respective districts. These were

judges of the circuit court to every intent and purpose, as completely

as the judges of Virginia were judges of appeals. By the operation of

the law of the last session, they have been divested of this _office_,

and other persons have been appointed to it. Much stress is laid, much

ingenuity exercised to make metaphysical distinctions between the court

and the office. I will grant all that gentlemen contend for, that there

is a wide distinction. Does it affect the case? Does it alter the fact?

The late circuit courts were not only abolished--the persons holding the

office of judge of those courts no longer hold it; they have neither

been impeached, nor have they resigned. They have not even accepted any

new appointment inconsistent with it, and by which it became vacant. The

function of judge of the circuit court does or does not constitute an

office. If it does, then the judges of the supreme and district courts

have been deprived of their offices, (the discharge of whose duties, be

it remembered, constitutes no small part of the consideration for which

they receive their salaries.) If it does not, then the circuit judges

are not now about to be deprived of their offices. On the passage of the

law of last session, did we hear any protest against its

unconstitutionality from the Supreme or district courts? Of any

resignations of the office of judge of the circuit court, in order "that

a salutary system might take effect?" And yet, sir, is not that office

as distinct from that of Supreme or district judge, as the office of

judge of appeals in Virginia is from that of judge of the general court,

chancery, or admiralty? Are not the jurisdictions of those courts

separate and distinct? Both never having original jurisdiction of the

same subjects; and an appeal lying from the inferior to the superior

tribunal, as in Virginia, although the officers of those tribunals may

be the same individuals? What, then, is the difference between taking

the office of appellate jurisdiction from the judge who possessed

original jurisdiction, or taking the office of original jurisdiction

from the appellate judge? How is the independence of the judge more

affected by the one act than by the other?

To prove the unconstitutionality of this bill, then, by a recurrence to

the doctrine of the judiciary of Virginia, is to prove the

unconstitutionality of the law of which it will effect the repeal. And

no argument has been, or, in my poor opinion, can be, adduced, to prove

the unconstitutionality of the one, which will not equally apply to the

other. No, sir, gentlemen are precluded by their own act from assuming

the ground of the judges of Virginia; they are obliged to concede that

we have the power, because they have already exercised it, of modifying

the courts, and here they concede the question. They tell you that this,

however, must, to be constitutional, be a "bona fide" modification. It

becomes them to prove, then, that this is a _mala fide_ modification.

Gentlemen have not, they cannot meet the distinction between removing

the judges from office for the purpose of putting in another person, and

abolishing an office because it is useless or oppressive. Suppose the

collectors of your taxes held their offices by the tenure of good

behavior, would the abolition of your taxes have been an infraction of

that tenure? Or would you be bound to retain them, lest it should

infringe a private right? If the repeal of the taxes would be an

infringement of that tenure, and therefore unconstitutional, could you

ring all the changes upon the several duties on stamps, carriages,

stills, &c., and, because you had retained the man and any one of these

offices without diminishing his emoluments, abolish the others? Would

not this be to impair the tenure of the office which was abolished, or

to which another officer might have been appointed by a new regulation?

Have not the judges, in the same manner, been deprived of one of their

offices? And is not the tenure as completely impaired thereby, as if the

other had been taken away also? Although it will be granted that the

_tenant_ is not so much affected, since, with one office, he has the

salary formerly attached to both.

I agree that the constitution is a limited grant of power, and that none

of its general phrases are to be construed into an extension of that

grant. I am free to declare, that if the intent of this bill is to get

rid of the judges, it is a perversion of your power to a base purpose;

it is an unconstitutional act. If, on the contrary, it aims not at the

displacing of one set of men, from whom you differ in political opinion,

with a view to introduce others, but at the general good by abolishing

useless offices, it is a constitutional act. The _quo animo_ determines

the nature of this act, as it determines the innocence or guilt of other

acts. But we are told that this is to declare the Judiciary, which the

constitution has attempted to fortify against the other branches of

Government, dependent on the will of the Legislature, whose discretion

alone is to limit their encroachments. Whilst I contend that the

Legislature possess this discretion, I am sensible of the delicacy with

which it is to be used. It is like the power of impeachment, or of

declaring war, to be exercised under high responsibility. But the power

is denied since its exercise will enable flagitious men to overturn the

Judiciary, in order to put their creatures into office, and to wreak

their vengeance on those who have become obnoxious by their merit. Yet

the gentleman expressly says, that arguments drawn from a supposition of

extreme political depravity, prove nothing; that every Government

pre-supposes a certain degree of honesty in its rulers, and that to

argue from extreme cases is totally inadmissible. Yet the whole of this

argument is founded on the supposition of a total want of principle in

the Legislature and Executive. In other words, arguments drawn from the

hypothesis are irresistible when urged in favor of that gentleman's

opinion; when they militate against him, they are totally inapplicable.

It is said that the bill on your table cannot constitutionally be

passed, because unprincipled men will pervert the power to the basest of

purposes; that, hereafter, we may expect a revolution on the bench of

justice, on every change of party, and the politics of the litigants,

not the merits of the case, are to govern its decisions. The Judiciary

is declared to be the guardian of the constitution against infraction,

and the protection of the citizen, as well against Legislative as

Executive oppression. Hence the necessity of an equal independence of

both. For it is declared to be an absurdity, that we should possess the

power of controlling a department of Government which has the right of

checking us; since thereby that check may be either impaired or

annihilated. This is a new doctrine of check and balance, according to

which the constitution has unwisely given to an infant Legislature the

power of impeaching their guardians, the judges. Apply this theory to

the reciprocal control of the two branches of the Legislature over each

other and the Executive, and of the Executive over them. But, sir, this

law cannot be passed, because the character of the bench is to be given

to it by the Legislature, to the entire prostration of its independence

and impartiality. It will be conceded, that measures, such as have been

portrayed, will never be taken, unless the sentiment of the ruling party

is ready to support them. Although gentlemen contend, that the office of

judge cannot be abolished, they are not hardy enough to deny that it may

be created. Where then, sir, is the check, supposing such a state of

things as the gentleman has imagined, (and which he has also declared

cannot be conceived,) which shall prevent unprincipled men from

effecting the same object by increasing the number of judges, so as to

overrule, by their creatures, the decisions of the courts? Would not

public opinion be as ready to sanction the one as the other of these

detestable acts? Would not the same evil which has excited such

apprehension in the minds of gentlemen, be thus effected by means even

more injurious than those which they have specified? Without any breach

of the constitution an unprincipled faction may effect the end which is

so much apprehended from the measure now contemplated to be adopted. I

might add, that, when the public sentiment becomes thus corrupt, the

ties of any constitution will be found too feeble to control the

vengeful ambition of a triumphant faction. The rejection of this bill

does not secure the point which has furnished matter for so much

declamation. Its friends are represented as grasping at power not

devolved upon them by the constitution, which hereafter is to be made

the instrument of destroying every judicial office, for the purpose of

reviving them and filling the places with their partisans.

I have long been in the habit of attending to the arguments of the

gentleman from Delaware, and I have generally found, in their converse,

a ready touchstone, the test of which they are rarely calculated to

withstand. If you are precluded from passing this law, lest depraved men

make it a precedent to destroy the independence of your Judiciary, do

you not concede that a desperate faction, finding themselves about to be

dismissed from the confidence of their country, may pervert the power of

erecting courts, to provide to an extent for their adherents and

themselves? and that however flagrant that abuse of power, it is

remediless, and must be submitted to? Will not the history of all

Governments warrant the assertion, that the creation of new and

unnecessary offices, as a provision for political partisans, is an evil

more to be dreaded than the abolition of useless ones? Is not an abuse

of power more to be dreaded from those who have lost the public

confidence than from those whose interest it will be to cultivate and

retain it? And does not the doctrine of our opponents prove that, at

every change of administration, the number of your judges are probably

to be doubled? Does it not involve the absurdity that, in spite of all

constitutional prohibitions, Congress may exercise the power of creating

an indefinite number of placemen, who are to be maintained through life

at the expense of the community? But, when these cases are cited, you

are gravely told that they suppose a degree of political depravity which

puts an end to all argument. Here, sir, permit me to state an important

difference of opinion between the two sides of this House. We are

accused of an ambitious usurpation of power; of a design to destroy a

great department of Government, because it thwarts our views, and of a

lawless thirst of self-aggrandizement which no consideration can

restrain. Let us not be amused by words. Let us attend to facts. They

will show who are contending for unlimited, and who for limited power.

The opponents of this bill contend that they did possess the power of

creating offices to an indefinite amount; which, when created, were

beyond the control of the succeeding Legislature. They, of course,

contend for the existence of such a power in the present Legislature,

for whose exercise there is no security but their self-respect. In other

words, that if the present majority should incur the suspicion of the

people, they may, as soon as there is any indication of their having

forfeited the public confidence, on the signal of their dismissal from

their present station, make ample and irrepealable provision for

themselves and their adherents, by the creation of an adequate number of

judicial offices. Now, sir, this is a power which we reject, though it

is insisted that we possess it. We deny that such an authority does

exist in us. We assert that we are not clothed with the tremendous power

of erecting, in defiance of the whole spirit and express letter of the

constitution, a vast judicial aristocracy over the heads of our

fellow-citizens, on whose labor it is to prey. Who, then, are, in

reality, the advocates of a limited authority, and who are the champions

of a dangerous and uncontrollable power? In my estimation, the wisest

prayer that ever was composed is that which deprecates the being led

into temptation. I have no wish to be exposed myself, nor to see my

friends exposed, to the dangerous allurements which the adverse doctrine

holds out. Do gentlemen themselves think that the persons, whom I see

around me, ought to be trusted with such powers? Figure to yourselves a

set of men, whose incapacity or want of principle has brought on them

the odium of their country, receiving, in the month of December, the

solemn warning, that on the 4th of March following, they are to be

dismissed from the helm of Government; establish the doctrine now

contended for, and what may we not expect? Yes, sir, the doctrine

advanced by our opponents is that of usurpation and ambition. It denies

the existence of one power by establishing another infinitely more

dangerous; and this you are told is to protect, through the organ of an

independent judiciary, the vanquished party from the persecution of

their antagonists, although it has been shown that, by increasing the

number of judges, any tone whatever may be given to the bench.

The theory for which gentlemen contend seems to me far-fetched and

overstrained. A mighty enginery is set in motion, which to all good

purposes is ineffectual, although formidable in the perpetration of

mischief. If, however, the people should be of a different opinion, I

trust that at the next election they will apply the constitutional

corrective. That is the true check; every other check is at variance

with the principle, that a free people are capable of self-government.

But, sir, if you pass the law, the judges are to put their veto upon it

by declaring it unconstitutional. Here is a new power, of a dangerous

and uncontrollable nature, contended for. The decision of a

constitutional question must rest somewhere. Shall it be confided to men

immediately responsible to the people, or to those who are

irresponsible? for the responsibility by impeachment is little less than

a name. From whom is a corrupt decision most to be feared? To me it

appears that the power which has the right of passing, without appeal,

on the validity of your laws, is your sovereign. But an extreme case is

put; a bill of attainder is passed; are the judges to support the

constitution or the law? Shall they obey God or Mammon? Yet you cannot

argue from such cases. But, sir, are we not as deeply interested in the

true exposition of the constitution, as the judges can be? With all the

deference to their talents, is not Congress as capable of forming a

correct opinion as they are? Are not its members acting under a

responsibility to public opinion, which can and will check their

aberrations from duty? Let a case, not an imaginary one, be stated:

Congress violates the constitution by fettering the press; the judicial

corrective is applied to; far from protecting the liberty of the

citizen, or the letter of the constitution, you find them outdoing the

Legislature in zeal; pressing the common law of England to their service

where the sedition law did not apply. Suppose your reliance had been

altogether on this broken staff, and not on the elective principle? Your

press might have been enchained till doomsday, your citizens

incarcerated for life, and where is your remedy? But if the construction

of the constitution is left with us, there are no longer limits to our

power, and this would be true if an appeal did not lie through the

elections, from us to the nation, to whom alone, and not a few

privileged individuals, it belongs to decide, in the last resort, on the

constitution. Gentlemen tell us that our doctrine will carry the people

to the gallows if they suffer themselves to be misled into the belief

that the judges are not the expositors of the constitution. Their

practice has carried the people to infamous punishment, to fine and

imprisonment; and had they affixed the penalty of death to their

unconstitutional laws, judges would not have been wanting to conduct

them to the gibbet.

Mr. MACON.--As no other member at present seems disposed to take the

floor, I will ask the attention of the committee for a few minutes. I

have attended with the greatest patience and diligence, to the arguments

of gentlemen who oppose the bill as unconstitutional; and had they

produced a single doubt in my mind on the point of constitutionality, I

should most certainly have voted with them against the bill on your

table; but I can with truth say, I have not heard any argument which has

in the least changed my first conviction, that we have a constitutional

right to pass it.

I should not, I believe, have spoken on this question, had not my

colleagues, who differ with me in opinion, thought proper to bring into

view a vote of the Legislature of the State, instructing her Senators

and recommending it to the Representatives to use their best endeavors

to obtain a repeal of the last Judiciary act. On this resolution of the

State Legislature, they made some extraordinary remarks, which I mean to

notice; but first permit me to inform the committee, that it has been

the constant practice of the Legislature of that State, from the

commencement of the General Government to the present day, to instruct

her Senators, and to recommend to her Representatives, to pursue such

measures on all the great national questions that have occurred, as the

Legislature judged the interest of the State required, and this

proceeding has never been considered improper. I shall endeavor to

answer the gentlemen in the order they spoke, beginning with my

colleague (Mr. HENDERSON,) who was first on the floor. If I understand

him rightly, (and if I do not he will correct me, because it is not my

desire to misstate a single word,) he said that the Legislature of the

State might have adopted the resolutions in consequence of the Message

of the President; but, upon examination of the dates, this will be found

to be impossible. The message could not have reached the Legislature

before the question on the resolutions was taken and decided; and on no

important question was that body ever more unanimous; and though my

colleague has said the question was there viewed but on one side, and

decided in a manner _ex parte_, yet I will be bold to say, if there were

any members in that Legislature who thought on this subject as he does,

he enjoyed the same right there that my colleague does here, to deliver

his sentiments.

Knowing as I do the great talents and integrity of my colleague, and I

believe no one on this floor knows them better, I was surprised when he

charged others with being under the influence of passion, when his

conduct must convince them that he was guided by the very passion which

he attributed to others. He quoted the Constitution of North Carolina,

let us examine it, and see whether his argument can be aided by the

practice under that instrument. The thirteenth article is in the

following words: that "the General Assembly shall, by joint ballot of

both Houses, appoint judges of the supreme court of law and of equity,

judges of admiralty, and attorney general, who shall be commissioned by

the Governor, and hold their offices during good behavior." On this

clause he noted the independence of the State Judiciary; and they are

independent so long as the law creating their office is in force, and no

longer; and it is worthy of notice, that in this section, no mention is

made of salary, and yet the judges have been considered as independent

as the Judges of the United States. Soon after the adoption of the

constitution, the Legislature of the States established courts in

conformity thereto; first county courts, and then superior, and

afterwards, by a Legislative act, without electing a single new judge,

gave the superior courts the additional jurisdiction of a court of

equity, and never a solitary complaint, that this law was

unconstitutional; and it must be acknowledged, that if you can make a

court of law also a court of equity, by a Legislative act, you can by

the same power take it away; and what becomes, in this case, of the

commission which is to be held during good behavior? It is, according to

my construction, to last no longer than the law which created the office

remains in force, and this is long enough to make the judges

independent. As to the salary of the Judges of North Carolina, the

twenty-first section of the constitution says, "they shall have adequate

salaries during their continuance in office," and yet with this clear

right in the Legislature, to lessen as well as to add to their salaries,

the judges, it is agreed, are independent. My colleague well knows, that

many attempts have been made to deprive the superior courts of

exercising any jurisdiction in cases of equity; and he also knows, that

attempts have been made to establish a court of appeals, which should

revise the decisions of the superior courts now in being; and by the

constitution of the State, any supreme court may, on presentment of a

grand jury, try the governor for maladministration, &c., and I believe

the present courts are authorized to do this. I have not at this place

been able to see the act which gives this authority; but no doubt is

entertained of the fact.

It is clear, then, that in North Carolina, all parties have thought,

that "during good behavior," only meant so long as the office existed;

because, by establishing a court of appeals, the judges now in being

would not be supreme judges, and in all these various attempts, no one

ever charged either of them to be unconstitutional. On examination of

the Constitution of North Carolina, it will be found that it makes

provision for the appointment of other officers by the Legislature, but

says nothing about adequate compensation, except in the section last

read, and if you take the office away, what is an adequate compensation

for doing nothing? Another proof might be drawn from the Constitution of

North Carolina, in favor of the opinion I hold, which is taken from the

twenty-ninth section, that "no Judge of a Supreme Court shall have a

seat in the General Assembly," and my colleague knows, that the present

judges could not hold a seat there, because they are supreme judges. And

he also knows, that no one ever doubted the constitutional right of the

Legislature to establish the courts before mentioned; and it seems to me

this, on his construction, would be a violation of the constitution,

because, having once made a Supreme Court, it must always remain so, to

secure, what he calls, the independence of the judges.

Sir, I was astonished when my colleague said, that the judges should

hold their offices, whether useful or not, and that their independence

was necessary, as he emphatically said, to protect the people against

their worst enemies, themselves; their usefulness is the only true test

of their necessity, and if there is no use for them, they ought not to

be continued. I will here ask my colleague whether, since the year 1783,

he has heard of any disorder in the State we represent, or whether any

act has been done there which can warrant or justify such an opinion,

that "it is necessary to have judges to protect the people from their

worst enemies, themselves." I had thought we, the people, formed this

Government, and might be trusted with it. My colleague never could have

uttered this sentence, had he not been governed by that passion which he

supposes governs others. It is true that we are not a rich and wealthy

State, but it is equally true, that there is no State in the Union more

attached to order and law; and my colleague himself would not say that

it was necessary to have judges for this purpose in the country we

represent; the people there behave decently without having Federal

judges, or standing armies, to protect them against themselves. Is it

not strange, that the people should have sense enough to pay their taxes

without being driven to it by superior force, and not have sense enough

to take care of themselves without this new Judiciary? They certainly

contrived to do this before the act establishing this Judiciary passed.

Another expression of his equally astonished me; he said, that on the

7th day of December, a spirit which had spread discord and destruction

in other countries, made its entry into this House. What! are we to be

told, because at the last election the people thought proper to change

some of their representatives, and to put out some of those who had

heretofore been in power, and to put others in power of different

opinions, that a destroying spirit entered into all the public

functionaries? For what, sir, are elections held, if it be not that the

people should change their representatives when they do not like them?

And are we to be told from the house-tops, that the only use of

elections is to promote, not public good, but public mischief? We are

also told, that this constitution was to be destroyed by the

all-devouring energies of its enemies. Who are its enemies? We are not,

nor do I think there are any in this House; but there are parties as

well in this House as out of doors, and no man wishes more sincerely

than I do, that they were amalgamated, that we might get rid of all

party gall, and free ourselves from improper reflections hereafter. But

by what energy is the constitution to be destroyed? The only energy

heretofore used, and which made the change so much complained of, was

the energy of election. Sir, I scarcely know what to say when I hear

such uncommon sentiments uttered from a head so correct and a heart so

pure; it is the effect of a passion of which he is unconscious. Again he

says, if you repeal this law, the rich will oppress the poor. Nothing

but too much law can any where put it in the power of the rich to

oppress the poor. Suppose you had no law at all, could the rich oppress

the poor? Could they get six, eight or ten per cent. for money from the

poor without law? If you destroy all law and government, can the few

oppress the many, or will the many oppress the few? But the passing the

bill will neither put it in the power of the rich to oppress the poor,

nor the poor to oppress the rich. There will then be law enough in the

country to prevent the one from oppressing the other. But while the

elective principle remains free, no great danger of lasting oppression

can be really apprehended; as long as this continues, the people will

know who to trust.

We have heard much about the judges, and the necessity of their

independence. I will state one fact, to show that they have power as

well as independence. Soon after the establishment of the Federal

Courts, they issued a writ--not being a professional man I shall not

undertake to give its name--to the Supreme Court of North Carolina,

directing a case then depending in the State court to be brought into

the Federal Court. The State Judges refused to obey the summons, and

laid the whole proceedings before the Legislature, who approved their

conduct, and, as well as I remember, unanimously; and this in that day

was not called disorganizing.

As so much has been said about the resolutions of North Carolina, I will

repeat again, that it is no uncommon thing for the Legislature to

express their opinion on great national subjects, and will ask my

colleagues whether they ever heard any complaint of the resolutions

about the Western land? And whether none of them in the Legislature

never voted for the resolutions about the western land, nor about

post-offices and post-roads? The Legislature surely had as much right to

give an opinion as the Chamber of Commerce of New York; but, put it upon

what footing you please, it is entitled to respect, as the uninfluenced

opinion of so many respectable individuals; and the Legislature never

intended nor wished that the recommendation to the representatives

should be binding on them at all events; and if I believed the bill to

be unconstitutional, I should not vote for it, but as I do not, I hope

the gentleman will pardon me for pursuing my own sentiments, and voting

for it. I hope no man will ascribe to me a disposition to produce

anarchy in my native country. Although poor myself, I feel as strong a

desire as any one on this floor for the preservation of good order and

good government.

It has been asked, by the gentleman from Delaware, (Mr. BAYARD,) will

the gentleman from Virginia (Mr. GILES) say, the assuming the State

debts was improper? I have no hesitation to say that it was done at an

improper time; and, in showing that it was, I hope I shall be pardoned

for travelling over topics that really have nothing to do with the

merits of the present question. That act is now done, and, by what I

say, it is not to be understood that I wish Congress should put their

hands upon it. It will be noticed that Congress are authorized to

establish post-offices and post-roads for the general and equal

dissemination of information throughout the United States; and is it not

known that no act was passed on that subject before the assumption of

the State debts, and that there was only one post-road which run near

the sea-coast? Of course, the people in the interior country had no

communication with those in the Government, nor had they any knowledge

of what was doing. But the rich speculator, who was on the spot, by

going into the country where the people were ignorant of what had been

done, purchased up their certificates--the only reward they had received

for their toil and wounds--at about one-tenth of their value. And it is

possible that many of these purchases may have been made with public

money. And it is clear to me, that if a proper number of post-roads had

been established, before the act was passed for assuming the State

debts, the war-worn soldier would not have lost half as much as he did

by the speculation on his certificates.

The gentleman from Delaware says we drove them to the direct tax. This

is the first time I ever heard of a minority driving a majority. Is such

a thing possible? Did we drive them to the measures that made such

immense expenditures of the public money necessary? No, sir, we opposed

those measures as useless; and the true ground of the direct tax is

this: the public money was expended; public credit was stretched, until,

to preserve it, it became necessary to provide for paying, and the means

adopted were the direct tax.

The same gentleman tells us there is nothing sacred in the eyes of

infidels. We know our opponents. The allusion here is too plain not to

be understood; and evidently is, that those who differ with him in

opinion are infidels. This is a strong expression; it would have seemed

that his love of Americans ought to have prevented the use of it. I

shall make no answer to it, except to remind him that in a book, the

truth of which he will not deny, he will find these words, "_Judge not,

lest ye be judged_." He also said that gentlemen might look to the

Executive for victims, and not to the judges. Notwithstanding this

remark, and without condemning or approving the appointments made by the

late President, I hope I may be permitted to express my own ideas,

without being considered as under the influence of the present

President. Prior to the fourth of last March, all, or nearly all, the

offices in the gift of the Executive, were in the hands of men of one

political opinion. On that day, the people changed the President,

because they did not like measures that had been pursued. But, to those

who have attended to the debates in this House, it must appear strange,

indeed, to hear gentlemen complain of the President having in office

those who agree with him in opinion, when we were formerly told that the

President would do wrong if he appointed to office those who differed

from him in political opinion; and whenever he had done it, he had had

cause to repent of it. Was that opinion then correct, and now false, in

the estimation of gentlemen? For my part, I did not think the opinion

correct when I first heard it, nor have I since been convinced of its

propriety. Indeed, before I can think so, I must have a worse opinion of

human nature than I now have, and think of men as they pretend to think

of us, which God forbid! But, taking things as they are, what course, on

this point, is most fair and tolerant? The community, as well as this

House, is divided into two parties. It seems to me, that all the most

tolerant could wish, would be an equal division of the offices between

the parties, and thus you might fix a reciprocal check on each other.

But I ask gentlemen to be candid, and tell me whether they are at this

time equally divided? Sir, they know that there are many more persons

who now fill offices who agree with them in opinion than agree with us.

As to myself, I care not who fill offices, provided they act honestly

and faithfully in them. I can with truth say, so little party attachment

have I on this head, that I never solicited to have any man discharged

from office. Knowing that a large majority of those now in office agree

with those gentlemen in political opinion, I am at a loss for the cause

of all this clamor. They have no doubt some reason for it, which has not

been declared. The fact is, they have a majority of the offices, and a

majority of the people are with us. I am contented it should be so.

The gentleman has dwelt much on a subject which, from my habits of life,

I am not enabled fully to notice; I must decide for myself, and, judging

with the small share of information I possess, I cannot agree with him.

I do not pretend to understand the subject as well as he does, but

certainly he was not so perspicuous as it might have been expected. I

mean, sir, his opinion on the common law. He told us that the judges

only adopted such parts of the common law of England as suited the

people, and that he apprehended no danger from this. Sir, I do apprehend

danger from this, because I cannot find any authority given them in the

constitution to do it, and I suppose it is not an inherent right.

Without pretending to know the extent of this common law, it has always

appeared to me to be extremely dangerous to the rights of the people,

for any person not elected by them, to undertake to exercise the power

of legislating for them, and this adopting the common law is only

another name for legislation. He has also told us, that the States had

adopted it. If the States adopted it, it became a law of the State, and

not of the United States; but the adoption of it by the individual

States, could not give the judges a right to adopt it for the United

States. The judges have no powers but what are given by the constitution

or by statute, and this power cannot be found in either. He even told

us, that the constitution was a dead letter without it. I do not believe

this was the opinion of the convention that formed it, and by an

examination of the debates of the State conventions that ratified it, it

will not be found to be their opinion; nor is it, I believe, the opinion

of all the Judges of the Supreme Court, that the constitution would be a

dead letter without the common law of England. I have understood, that

one of them has given it as his opinion, that the common law was not in

force in the United States. The gentleman told us, that the Sedition law

was constitutional, and that the judges had so determined. This we have

often been told before; but, in my opinion, the contrary is the fact. I

firmly believe there is no authority given in the constitution to pass

that law, and although the judges agree with him in opinion, I believe

the people agree with me. He, like my colleague, did not pretend to say

that the judges under the old system had too much business, but too much

riding. The whole burden of the song seems to be riding and salary,

salary and riding; you may destroy the office, but the officer must have

his salary, and this I suppose without riding. The old system was, in my

opinion, equal to every object of justice contemplated by its

establishment.

The gentleman has ascribed to us the wish to have the courts viciously

formed. Is it possible, that he can have so degrading an idea of the

American people, as to suppose they would send men here to legislate on

their dearest interests, so base and corrupt, as to wish their courts so

formed, that vice and not virtue should prevail in them? I am happy to

say that gentleman is the only one who has uttered a sentiment so

abhorrent to human nature. He also said, if you permit the State courts

to execute your laws, you would have no constitution in ten years. I

have not heard any one express a desire that you should have no courts,

or that the State courts should execute all your laws; but I do not

believe, that if the State courts were to execute your laws, that they

would destroy the constitution which they are sworn to support. He has

told us that we paid millions for an army which might be useless, and

refused thousands to a Judiciary which was useful. As to the army, those

who agree with me in sentiment, are as clear of it as it is possible for

men to be of any political sin whatever; we always considered them

useless, except in a small degree, and voted against them.

But, says he, this is the President's measure; he may prevent it. This

is indeed a bold assertion. Are a majority of this House so degraded, so

mean, so destitute of honor or morality, as to act at the nod of a

President? What the majority may hereafter do, I cannot tell; but I can

say, as yet they have done nothing which even the eye of criticism can

find fault with. But are we to infer from these charges, that it has

heretofore been the practice for the President to give the tone to the

majority of the House, and to wield them about as he pleased? I had,

before, a better opinion of our adversaries. I had thought, and still

think, that no man can wield a majority of this House; that the House

is, and has been, too independent for this; to think otherwise, would be

degrading to my country. Sir, I do not believe the gentleman from

Delaware himself, with all his talents, can wield those with whom he

generally votes, at his will and pleasure.

Much has been said about the manner in which the late law was passed,

and the purpose for which it was done. I hope I shall be pardoned for

saying nothing on this subject; enough, if not too much has already been

said on it; nor can I conceive that it has any thing to do with the

question.

The true question is, were there courts enough under the old system, to

do the business of the nation? In my opinion there were. We had no

complaints that suits multiplied, or that business was generally

delayed; and when gentlemen talk about Federal courts to do the business

of the people, they seem to forget that there are State courts, and that

the State courts have done, and will continue to do almost the whole

business of the people in every part of the Union; that but very few

suits can be brought into the Federal courts, compared with those that

may be brought into the State courts. They will be convinced that under

the old system, we had federal judges and courts enough; besides, sir, I

believe each State knows best what courts they need, and if they have

not enough, they have the power and can easily make more. I am sure the

old system answered every purpose for the State I live in as well as the

new.

He also told us, that we attempt to do indirectly what we cannot do

directly. I do not know of any such attempt. The bill is certainly a

direct attempt to repeal the act of the last session; but I have seen

things done indirectly which I believe could not have been done

directly; such was the army of volunteers; it surely was an indirect

attempt to officer and get possession of the militia. The same gentleman

challenges us to say there are any in the United States who prefer

monarchy. In answer to this, I say, there were such during the American

revolutionary war, and I have not heard that they had changed their

opinion; but as he has told us there were jacobins in the country, it is

not unfair to suppose there are monarchists; they being the two

extremes. We are also charged with a design to destroy the whole

Judiciary. If there is such a design, this is the first time I ever

heard it; no attempt of the kind is yet made. But what is the fact? We

only propose to repeal the act of the last session, and restore the

Judiciary exactly to what it was for twelve years, and this is called

destroying the Judiciary.

To complete the scene, we were told of the sword, of civil discord, and

of the sword of brother drawn against brother. Why such declamation? Why

do we hear of such things on this floor? It is for them to tell who use

the expressions; to me they are too horrid to think of. Do gentlemen

appeal to our fears, rather than to our understanding? Are we never to

be clear of these alarms? They have often been tried without producing

any effect. Every instrument of death is dragged into this question;

sword, bayonet, hatchet, and tomahawk; and then we are told that the

passing this bill may be attended with fatal consequences to the women

and children. Can it be possible, sir, that the gentleman was really

serious when he talked about an injury to women and children? He also

told us, if you pass the bill and it should produce a civil war, not

only himself but many enlightened citizens would support the judges. And

have we already come to this, that enlightened citizens have determined

on their side in case of a civil war, and that it is talked of in this

assembly with deliberation and coolness? We certainly were not sent here

to talk on such topics, but to take care of the affairs of the nation,

and prevent such evils. In fact, it is our duty to take care of the

nation, and not destroy it. Compare this with the conduct of the former

minority. I challenge them to show any thing like it in all their

proceedings. Whenever we supposed the constitution violated, did we talk

of civil war? No, sir; we depended on elections as the main corner-stone

of our safety; and supposed, whatever injury the State machine might

receive from a violation of the constitution, that at the next election

the people would elect those that would repair the injury, and set it

right again; and this, in my opinion, ought to be the doctrine of us

all; and when we differ about constitutional points, and the question

shall be decided against us, we ought to consider it a temporary evil,

remembering that the people possess the means of rectifying any error

that may be committed by us.

Is the idea of a separation of these States so light and trifling an

affair, as to be uttered with calmness in this deliberate assembly? At

the very idea I shudder, and it seems to me that every man ought to look

on such a scene with horror, and shrink from it with dismay. Yet some

gentlemen appear to be prepared for such an event, and have determined

on their sides in case it should happen. For my part, sir, I deplore

such an event too much to make up my mind on it until it shall really

happen, and then it must be done with great hesitation indeed. To my

imagination, the idea of disunion conveys the most painful sensations;

how much more painful then would be the reality! Who shall fix the

boundaries of these new empires, when the fatal separation shall take

place? Is it to be done with those cruel engines of death that we have

heard, of, the sword, the bayonet, and the more savage instruments of

tomahawk and hatchet? And is the arm of the brother to plunge them into

the breast of brother, and citizen to be put in battle array against

citizen, to make this separation which would ruin the whole country? And

why is all this to be done? Because we cannot all think alike on

political topics. As well might it be said, because we cannot all agree

in the tenets embraced by each particular sect of our holy religion,

because one is a Calvinist and another a Lutheran, that each should be

employed in plunging the dagger into the heart of the other. But

suppose, sir, you agree to divide these States, where is the boundary to

be? Is it to be a river, or a line of marked trees? Be it which it may,

both sides must be fortified, to keep the one from intruding on the

other; both the new governments will have regular soldiers to guard

their fortified places, and the people on both sides must be oppressed

with taxes to support these fortifications and soldiers. What would

become, in such a state of things, of the national debt, and all the

banks in the United States? If we do wrong by adopting measures which

the public good does not require, the injury cannot be very lasting;

because at the next election the people will let us stay at home, and

send others who will manage their common concerns more to their

satisfaction. And if we feel power and forget right, it is proper that

they should withdraw their confidence from us; but let us have no civil

war; instead of the arguments of bayonets, &c., let us rely on such as

are drawn from truth and reason.

Another topic has been introduced, which I very much regret; it is the

naming of persons who have received appointments from the late or the

present President. I hope I shall be pardoned for not following this

example. And one gentleman is named as having been an important member

during the election of President by the late House of Representatives.

It ought to be remembered there were others as important as the

gentleman named. In talking about the late or the present President, it

ought not to be forgotten that they both signed the Declaration of

Independence, that they have both been Ministers in Europe, and both

Presidents of the United States. Although they may differ in political

opinion, as many of us do, is that any reason we should attempt to

destroy their reputation? Is American character worth nothing, that we

should thus, in my judgment, improperly, attempt to destroy it on this

floor? The people of this country will remember that British gold could

not corrupt nor British power dismay these men. I have differed in

opinion with the former President, but no man ever heard me say, that he

was either corrupt or dishonest; and sooner than attempt to destroy the

fame of those worthies, to whose talents and exertions we owe our

independence, I would cease to be an American; nor will I undertake to

say that all who differ from me in opinion are disorganizers and

jacobins.

THURSDAY, February 25.

_Judiciary System._

The House then went into a committee on the bill, sent from the Senate,

entitled, "An act to repeal certain acts respecting the organization of

the courts of the United States, and for other purposes."

Mr. RUTLEDGE.--I beg leave, Mr. Chairman, to proffer my thanks to the

committee for the indulgence with which they favored me yesterday, and

at the same time to acknowledge the respect excited by the politeness of

the honorable gentleman from Maryland, who moved for its rising. In the

course of the observations I yesterday offered, I endeavored to show

that it was the intention of the Convention to make our judges

independent of both Executive and Legislative power; that this was the

acknowledged understanding of all the political writers of that time;

the belief of the State Conventions, and of the first Congress, when

they organized our Judicial system. If I have been successful in my

attempt to establish this position, and if (what I suppose cannot be

denied) it be true in jurisprudence, that whenever power is given

specially to any branch of Government, and the tenure by which it is to

be exercised be specially defined, that no other, by virtue of general

powers, can rightfully intrude into the trust; then I presume it must

follow of consequence, that the present intermeddling of Congress with

the Judicial Department is a downright usurpation, and that its effect

will be the concentration of all power in one body, which is the true

definition of despotism. As, sir, every thing depends upon the fair

construction which this article in the constitution respecting the

Judiciary is susceptible of, I must again read it. [Here Mr. R. read

several clauses of the constitution.] Some of the clauses we see are

directory and others prohibitory. Now, sir, I beg to be informed of what

avail are your prohibitory clauses, if there be no power to check

Congress and the President from doing what the constitution has

prohibited them from doing? Those prohibitory regulations were designed

for the safety of the State Governments, and the liberties of the

people. But establish what is this day the ministerial doctrine, and

your prohibitory clauses are no longer barriers against the ambition or

the will of the National Government; it becomes supreme and is without

control. In looking over those prohibitory clauses, as the

Representative of South Carolina, my eye turns with no inconsiderable

degree of jealousy and anxiety to the ninth section of the first

article, which declares--[Here Mr. R. read the article respecting

migration before the year 1808.]

I know this clause was meant to refer to the importation of Africans

only, but there are gentlemen who insist that it has a general

reference, and was designed to prohibit our inhibiting migration as well

from Europe as any where else. It is in the recollection of many

gentlemen who now hear me, that, in discussing the alien bill, this

clause in the constitution was shown to us, and we were told it was a

bar to the measure. And an honorable gentleman from Georgia, then a

member of this House, and now a senator of the United States, (and who

had been a member of the Convention,) told us very gravely he never

considered this prohibition as relating to the importation of slaves. I

call upon gentlemen from the Southern States to look well to this

business. If they persevere in frittering away the honest meaning of the

constitution by their forced implications, this clause is not worth a

rush--is a mere dead letter; and yet, without having it in the

constitution, I know the members from South Carolina would never have

signed this instrument, nor would the convention of that State have

adopted it. My friend from Delaware, standing on this vantage ground,

says to our opponents, Here I throw the gauntlet, and demand of you how

you will extricate yourselves from the dilemma in which you will be

placed, should Congress pass any such acts as are prohibited by the

constitution? The judges are sworn to obey the constitution, which

limits the powers of Congress, and says they shall not pass a bill of

attainder or _ex post facto_ law, they shall not tax articles exported

from any State, and has other prohibitory regulations. Well, sir,

suppose Congress should pass an _ex post facto_ law, or legislate upon

any other subject which is prohibited to them, where are the people of

this country to seek redress? Who are to decide between the constitution

and the acts of Congress? Who are to pronounce on the laws? Who will

declare whether they be unconstitutional? Gentlemen have not answered

this pertinent inquiry. Sir, they cannot answer it satisfactorily to the

people of this country. It is a source of much gratification to me to

know that my sentiments on this subject, as they relate to the

constitutionality of it, are in unison with the wisest and best men in

my native State. The Judicial system had proved so inconvenient there,

as to render a new organization of it necessary some years past. There

were gentlemen in the Legislature as anxious to send from the bench some

of the judges as gentlemen here are to dismiss our federal judges.

Personal animosities existed there as well as here, though not to so

great an extent; but it was the opinion of a large majority of the South

Carolina Legislature, that as the constitution declares, "the judges

shall hold their offices during good behavior," the office could not be

taken from them, the measure was abandoned, and the wise and cautious

course pursued, which we wish gentlemen here to follow: the system was

not abolished, but modified and extended; the judges had new duties

assigned to them, and their number was increased, but no judge was

deprived of his office. In South Carolina they have a court of chancery,

consisting of three chancellors, and the law establishing it requires

the presence of two judges to hold a court. During a recess of the

Legislature, one of the chancellors resigned and another died. The

functions of the court of consequence became suspended. All the business

pending in it was put to sleep. The public prints were immediately

filled with projects for destroying the court, which had been denounced

as unnecessary. As the citizens of the western part of the State had not

participated much in the benefits derived from the court of chancery,

many of the most influential of them deemed it of little utility. The

opposition assumed so formidable an aspect as to determine the Governor

(who exercises the power of appointing judges during the recess of the

Legislature) not to make any appointment, believing the court would be

abolished. When the Legislature met, an effort was made to abolish the

court, but a large majority giving to the constitution the honest

meaning of its framers, considered the judges as having a life estate in

their offices, provided they behaved well; and the vacancies on the

chancery bench were immediately supplied.

That the national Judiciary Establishment is comparatively more costly

than are the State Judiciaries, is far from being the case, I believe.

It may be so in Virginia, where they have one chancellor, with little

salary and much business, but it is not so in other States. In South

Carolina, we have six judges at common law, at six hundred pounds

sterling a year each; three chancellors at five hundred pounds each;

which, together with the salaries and fees of office of the attorney

general, master in chancery, solicitors, clerks, and sheriffs, amount to

six thousand two hundred pounds sterling. And yet, sir, justice, I

believe, is nowhere cheaper than in South Carolina. By the judicious

structure of her judiciary system, the streams of justice are diffused

over the whole State, and every man is completely protected in his life,

liberty, property, and reputation. The courts are almost constantly in

session. The judges are gentlemen of high talents, integrity, and strict

impartiality; and every one who goes into the court of that State, not

only obtains ample justice, but obtains it promptly; this, sir, is what

I call cheap justice. The gentleman from Virginia has seen fit to notice

the law which laid a direct tax, and said it was imposed when we knew

the Administration of this Government was soon to pass from those then

in power, and was resorted to as a means of extending Executive

patronage, and to make provision for the friends of an expiring

Administration. Can the honorable gentleman be serious in all this? Does

he remember when we passed this law? It was in 1798, when I will be bold

to say, the Administration enjoyed the highest degree of popular favor.

In no popular Government, perhaps, was an Administration more popular

than was the former Administration, at the time this tax was laid. Sir,

this law had no connection with personal or party considerations. Like

all the measures of the past Administration, it was designed to promote

the public good. Had we, like our opponents, consulted the caprices and

prejudices, and not the real interests of our constituents; had we been

merely attentive to popular favor, we should not have passed this law.

At the crisis it was passed, the public good demanded it, and we were

regardless of every other consideration. A nation that had lighted up

the flame of war in every corner of Europe, that was prostrating the

liberties of every free people, and subverting the Government of every

country, saw fit to menace us; told us for the preservation of our peace

and independence we must pay tribute. This degrading measure was

scornfully rejected by our Administration; they said, if we must fall,

we will fall after a struggle; and our citizens prepared themselves for

war with alacrity, and regarded every sacrifice as inconsiderable,

compared with the great sacrifice of our independence. With this

prospect of immediate war, we should have acted not only unwisely but

treacherously, had we trusted for public income to the revenue derived

from trade. Had our trade been destroyed, there would have been a

complete destitution of revenue, and to place the means of national

defence as far beyond the reach of contingency as possible we imposed

the direct tax. We knew this law would prove arms and ammunition to

those who were inventing all the falsehood credulity could swallow, and

who were busily employed in misrepresenting and calumniating the conduct

of the Government. We did suppose they might make this law their

artillery to batter down the Administration; but we were not deterred

from our honest purposes by this expectation; a change of men, when

compared with a change of government, weighed with our minds as dust

does in the balance; our measures did not aim at popularity, and we were

just to our country, regardless of party consequences. At this early

period, says the gentleman, it was to have been calculated what would be

the result of the Presidential election. Sir, those must have been

gifted with second sight, they must have been prophets indeed, who could

have then foretold how the election would issue; the result was as

doubtful as any event could be, till within a few days of the election.

It is recollected that every thing depended upon the South Carolina

vote; all the gentlemen in nomination went there with an equal number of

votes; the anxiety displayed at the time by the gentlemen here from

Virginia, proved they then deemed it doubtful how the election would

terminate. Indeed, sir, nothing could have been more doubtful, and I

believe it is fully known to the ministerial side of this House, that it

depended upon one of the gentlemen nominated, who had not the Carolina

votes, to have obtained them, and produced to the election a different

result; but his correct mind was obnoxious to any intrigue; it would not

descend to any compromise, and this honorable man knew that no station

could be honorable to him unless honorably obtained. In the very wide

range which the gentleman from Virginia has permitted himself to take,

he has been pleased to notice the conduct of the late Congress when they

were occupied in the election of the President of the United States, and

he has said we were then "pushing forward to immolate the constitution

of our country." What does all this mean, sir? What, sir! because we, of

the two gentlemen who had from the electors an equal number of votes,

did not prefer him who was from Virginia, are we to be charged with an

immolation of our constitution? Sir, the gentleman from Virginia was not

a member of the last Congress, and lest he should not know the history

of the transaction to which he alludes, I will give it.

The Electors chosen in the different States gave the same number of

votes for Thomas Jefferson and Aaron Burr; there being a tie, it

devolved, by the direction of the constitution, upon the House of

Representatives to make an election. We sincerely believed that Mr. Burr

was the best and the most fit man to be President, and we accordingly

voted for him; we continued to vote for him six and thirty times; we

were anxious to have him elected, and we deprecated the election of the

other candidate; but when we found gentlemen were determined not to have

the candidate from New York, and said they would have him from Virginia

President, or they would have no President, we, who venerated our

constitution too sacredly to do any thing which should hazard the loss

of it, yielded. We believed Mr. Jefferson radically and on principle

hostile to the National constitution; we believed some of the most

important features in it obnoxious to him; we believed him desirous of

destroying the independence of our Judiciary; we believed him opposed to

the Senate as now organized, and we believed him destitute of that

degree of energy necessary to maintain the general liberty of the people

of the United States. With these impressions deep upon our minds, we

should have been traitors to our country had we voted for the gentleman

from Virginia, as long as there was any prospect left to us of elevating

the gentleman from New York; but when we found the object of our

preference was so obnoxious to gentlemen on the other side, that they

would hazard the having of no President rather than have him, we ceased

our opposition.[67] And this is what the honorable member from Virginia

has been pleased to call "pushing forward to immolate the constitution."

I regret, Mr. Chairman, being compelled to mention names and say any

thing of a personal nature, but I am obliged to do it in pursuing the

gentleman from Virginia, who in his extraordinary course has not only

mentioned the names of gentlemen, but ascribed unworthy motives for

their conduct. He has said Mr. Read and Mr. Green voted for the law

under which they got appointments. Although I have abundant proof that

neither of these gentlemen solicited their offices, that they were given

spontaneously, and without being expected, yet I will merely answer this

observation by mentioning what is very generally known to all gentlemen

who have been of late in the councils of the nation; it is, that it was

the invariable practice of the former Executive to appoint gentlemen to

office without previously advising with them. It is well known that

under the law gentlemen are now endeavoring to repeal, Mr. Jay was

appointed Chief Justice, and about the same time several gentlemen in

this House were appointed to some of the most honorable stations under

our Government; the Executive's intention, it is well known, had not

been previously notified to them; it is well known they all declined

accepting the places proffered to them. Permit me, sir, to give a brief

history of the case of Mr. Green, on which the gentleman from Virginia

has dwelt so much.

The district judge in Rhode Island was appointed circuit judge, and Mr.

Green was appointed district judge. On the fourth day of March, Mr.

Green took his seat in the Senate; the friends of the Administration

objected to his keeping it; they said he was a judge, as appeared by the

journals of the Senate; they here made a complete recognition of his

appointment as judge, and he vacated his seat. After getting home he

received his commission, in which the blanks had been filled up with the

words circuit judge, instead of district judge. Mr. Green enclosed his

commission to the Executive, in a letter most profoundly respectful, and

requested the errors of the clerk in the Department of State might be

corrected, and his commission made to conform to the appointment, as

recorded on the Senatorial journal. To this letter, which was in highly

respectful terms, the President would not deign to have any answer

given; he pocketed Mr. Green's commission, and placed another gentleman

in his office. This is a history of the appointment of Mr. Green, and

the manner in which the President "corrected the procedure."

Sir, the Judiciary is, in the fabric of the constitution, not a

Corinthian pillar, not any ornament added by Congress. It is, sir, the

grand Doric column; one of three foundation pillars, formed not by

Congress, but by the people themselves; it binds together the abutment,

is laid as the foundation of the late fabric of our Government, and if

you demolish it, the grand arch itself will totter and the whole be

endangered. We are asked by the gentleman from Virginia if the people

want judges to protect them? Yes, sir, in popular governments

constitutional checks are necessary for their preservation; the people

want to be protected against themselves; no man is so absurd as to

suppose the people collectedly will consent to the prostration of their

liberties; but if they be not shielded by some constitutional checks

they will suffer them to be destroyed; to be destroyed by demagogues,

who filch the confidence of the people by pretending to be their

friends; demagogues who, at the time they are soothing and cajoling the

people, with bland and captivating speeches, are forging chains for

them; demagogues who carry daggers in their hearts, and seductive smiles

in their hypocritical faces; who are dooming the people to despotism,

when they profess to be exclusively the friends of the people. Against

such designs and artifices were our constitutional checks made to

preserve the people of this country. Will gentlemen look back to the

histories of other countries, and then tell us the people here have

nothing to apprehend from themselves? Who, sir, proved fatal to the

liberties of Rome? The courtier of the people; one who professed to be

"the man of the people," who had willed his fortune to the people, and

had exposed his will to the public eye; a man who, when a Crown was

proffered to him, shrunk from the offer, and affectedly said, it did not

come from the people. It was Julius Cæsar who prostrated the liberties

of Rome; and yet Cæsar professed to be the friend of Rome, to be in fact

the people. Who was it, that, in England, destroyed the Representative

Government, and concentrated all its powers in his own hands? One who

styled himself the man of the people; who was plain, nay studiously

negligent in his dress; disdaining to call himself Mister, it was plain

unassuming Oliver; Oliver Cromwell, the friend of the people, the

protector of the Commonwealth. The gentleman from Virginia says he would

rather live under a despot than a Government where the judges are as

independent as we would wish them to be. Had I his propensities, I, like

him, would fold my arms and look with indifference at this attack upon

the constitution. It has been my fortune, Mr. Chairman, to have visited

countries governed by despots. Warned by the suffering of the people I

have seen there, I am zealous to avoid any thing which may establish a

despotism here. It is because I am a republican in principle and by

birth, and because I love a republican form of Government and none

other, that I wish to keep our constitution unchanged. Independent

judges, at the same time that they are useful to the people, are

harmless to them. The judges cannot impose taxes; they cannot raise

armies; they cannot equip fleets; they cannot enter into foreign

alliances: these are powers which are exercised without control by

despots; and as the gentleman from Virginia does not hold despots in

abhorrence, he and I can never agree in our opinions on Government.

Whether another honorable gentleman from Virginia (Mr. RANDOLPH) has

derived all the service from his sling and his stone he had expected, or

whether he feels acquitted of his promise, and now thinks himself

capable of prostrating the Goliath of this House, armed cap-à-pie with

the constitution of his country, I cannot conjecture. Whether he has

discovered the skill and the prowess of David, or whether he is likened

to him only by the weapons he wars with, it is for the committee to

judge; for myself I must say, that his high promises had excited

expectations which in me have not been realized, and when the gentleman

sat down I was sorry to find my objections to the bill on your table

undiminished. I say sorry, for I can lay my hand upon my heart, and in

the fulness of sincerity declare, there is nothing I desire more

anxiously than to be convinced by gentlemen that this measure is not

unconstitutional.

The gentleman has asked whether, if we had created an army of judges,

and given them monstrous high salaries, it would not be right to repeal

the law; that if the power exists to repeal any law which might have

passed on this subject, it might not now be used? and has been pleased

to say, we would have created more judges and given them higher

salaries, if we had not wanted nerves; and tells my honorable and

learned friend from Delaware that we were restrained by the same

feebleness of nerve which induced us at the Presidential election to put

blank votes into the ballot box. Sir, my friend from Delaware does want

that sort of nerve that some gentlemen now discover. Although he is as

brave as he is wise, yet in living without fear he will live without

reproach, and never make himself liable to the charge of prostrating the

constitution of his country; for such a work it is true he has no nerve.

The observations of one honorable gentleman from Virginia (Mr. GILES)

being now reiterated by another respecting the course of conduct we

pursued at the Presidential election, shows that time has not abated the

resentment of Virginia which we excited by our not voting for the

Virginia candidate. Permit me here to declare, sir, that in reviewing

all my public conduct, I can discover no one act of which I am more

satisfied than my having put a blank vote into the ballot-box. Much has

been said on this subject. My friend from Delaware and myself have been

denounced by the jacobins of the country; at their civic feasts, and in

their drunken frolics, we have been noticed. European renegadoes, who

have left their ears on the whipping posts of their respective

countries, or who have come to this country to save their ears, have

endeavored to hang out terrors to us in the public prints; nay, sir,

circular letters have been diffused through the country, charging us

with the intention of preventing at one time the election of a

President, and at another with the design of defeating the vote of the

Electors and making a President by law. This was all a calumny, and as

it relates to the South Carolina delegation, I declare they had no

intention of defeating the public will; they never heard of any project

for making a President by law; they had but one object in view which

they pursued steadily as long as there was any prospect of attaining it.

The gentleman from Virginia and the gentleman from New York had an equal

number of votes; we preferred the latter; we voted for him more than

thirty times, but when we found our opponents would not unite with us,

and seemed obstinately determined to hazard the loss of the constitution

rather than join us, we ceased to vote; we told them we cannot vote with

you, but by ceasing to vote, by using blank votes, we will give effect

to your votes; we will not choose, but we will suffer you to choose.

Surely, Mr. Chairman, there was nothing in all this which had any

aspect towards defeating the public will. Why I did not prefer the

gentleman who ultimately was preferred, has already been mentioned. This

is a subject on which I did not expect to be called upon to explain; but

the gentlemen from Virginia have called, and it was necessary to answer.

Permit me to state, also, that besides the objections common to my

friend from Delaware and myself, there was a strong one which I felt

with peculiar force. It resulted from a firm belief that the gentleman

in question held opinions respecting a certain description of property

in my State, which, should they obtain generally, would endanger it, and

indeed lessen the value of every other.[68] Following the example set by

his colleague, the gentleman from Virginia has bestowed much censure on

the past Administration, and made it a serious charge against them,

having appointed under this law a gentleman of Maryland, who he says was

not with us formerly, but unfurled his standard in the service of his

King, and fought against his countrymen, whom he then deemed rebels. I

did not expect, Mr. Chairman, to hear this observation from one of the

friends of the Executive. Since the fourth of March last, I thought

philosophy had thrown her mantle over all that had passed; that sins

were to be forgotten and forgiven, and to prove the sincerity of this

forgiving spirit, sinners were to be distinguished by Executive favors.

One would have thought so in reviewing Executive conduct; where persons

had been imprisoned and fined under our laws, they we know were

released; where fines had actually been paid, the officers of Government

had been ordered to return them, and not only tories had been appointed

to office, but old tories, rank old tories, who had been banished. The

present collector of Philadelphia, for the internal revenue, has been

appointed since the fourth of March last, and although he never, like

the gentleman alluded to, shivered lances in the service of his King,

yet he was actively employed in the more safe service of giving

information to the British Generals, and marching before Sir William

Howe, decorated with laurels, conducted him into the metropolis of his

native State. Sir, there are many instances of this kind. Have gentlemen

forgotten the young Englishman who was so busily employed here last

winter during the Presidential election, that in seeing him one would

really have supposed him not only a member of this House, but, like him

of Tennessee, holding an entire vote at his command? This youngster was

sent out here by some merchants in England to collect debts due to them

in this country, and his father, whose tory principles carried him from

America early in the Revolution, is now subsisting on a royal pension;

and this young man has been appointed our Consul at London, and the

former consul, a native and stanch American, whose conduct had been

approved by merchants generally, has been turned out to create a

vacancy. The gentleman from Virginia has repeated the observation of his

colleague, that the people are capable of taking care of their own

rights, and do not want a corps of judges to protect them. Human nature

is the same every where, and man is precisely the same sort of being in

the New World that he is in the Old. The citizens of other Republics

were as wise and valiant and far more powerful than we are. The

gentleman from Virginia knows full well, that wherever the Roman

standard was unfurled, its motto, "_Senatus Populusque Romani_,"

proclaimed to a conquered world that they were governed by the Senate

and the people of Rome. But now, sir, the Roman lazzaroni, who crouching

at the gates of his Prince's palaces, begs the offals of his kitchen,

would never know that his ancestors had been free, nor that the people

had counted for any thing in Rome, or that Rome ever had her Senate; did

he not read it on the broken friezes and broken columns of the ruined

temples, whose fragments now lie scattered over the Roman forum!

TUESDAY, March 2.

Mr. DANA.--After this vindication of meritorious men who have been

removed from office, I will now attend more particularly to some

observations of the gentleman from Virginia. He has spoken of the

judicial act of the 13th of February, 1801, as if the passage of it had

been attended with improper circumstances, and thence has attempted to

deduce the inference that it ought to be repealed. He read part of the

journal of the last session, and charged certain members of the House

with having been engaged in opposing the public will at the time when

the act was approved. The journal shows, that on the 13th of February,

eighteen hundred and one, the representatives, voting by States,

proceeded to the twenty-ninth ballot for President, and the result was

the same as had taken place before; the votes of eight States given for

Thomas Jefferson; the votes of six States for Aaron Burr; and the votes

of two States divided. Much has been said on this topic, which has at

length been brought forward as a public charge by the gentleman from

Virginia. It is now time that it should be examined.

According to the principles of our Government, the public will, when

explicitly ascertained by an authentic act, is the law of the land, and

must be obeyed. Of this there can be no doubt; it is beyond all

question. But this public will is not merely the will of part of the

community, a section of the people; it is the will of the great body of

American citizens. The highest and most solemn expression of the public

will in this country is the Constitution of the United States. This was

agreed to by the General Convention; was transmitted to the

Legislatures of the several States by the unanimous resolution of

Congress under the Confederation; was recommended by all those

Legislatures, when they passed laws for submitting it to conventions for

their ratification, and was finally ratified by the conventions of all

the States in the Union. It was thus established by the general consent.

In this we should acknowledge the high authority of the public will.

There is, however, a misfortune which attends the argumentation of some

gentlemen. They substitute a part for the whole; and would confound the

will of a certain portion of the people, however vaguely expressed, with

the will of the whole public body as explicitly manifested by an

authentic act.

What manifestation was there of the public will relative to the late

election of a President of the United States? The only authentic

evidence of the public will on this subject proved, that Thomas

Jefferson, of Virginia, and Aaron Burr, of New York, were equally the

objects of approbation. The majority of the electors had given them an

equal number of votes. What then was the difference of right between

them? Was it, that one of the candidates was a Virginian? Was it that

the members of Congress were assembled on the banks of the Potomac, with

Virginia in view on the other side? Must it be acknowledged as the

prerogative of that State to impose a Chief Magistrate on the Union? Or

was there a difference of right, because Virginia, with its extent and

population, could make more clamor than any other State? The noise of so

great a State may sometimes seem loud enough for the voice of the people

of the United States. And are they, therefore, in this House to be

confounded with each other? If so, the observations about the public

will, of which we have lately heard so much from a certain quarter, must

be understood to mean the will of Virginia; and we may thus judge of the

argumentation when gentlemen from that State are speaking of the respect

due to the public will.

Two persons were presented, in constitutional form, to the House of

Representatives, as being equally candidates for the office of

President: one from Virginia and the other from New York. When they were

so presented, the choice between the two candidates was devolved on the

Representatives, by the Constitution of the United States. After

maturely considering the question, it was for them, as ultimate

electors, to vote as they judged to be most for the public welfare. They

voted by States, as required by the constitution. And are gentlemen to

be here accused for exercising the constitutional right of election

according to the conviction of their own judgments? When called upon,

under the constitution, to elect one of the two candidates, were they

not bound, by the nature of their duty, to give their votes according as

the one or the other was by them judged to be more or less preferable?

Upon what principle can gentlemen be accused of hostility to the

interest of the people, because they did not think proper to elect the

candidate from Virginia? Are our affairs already reduced to such a

situation that it is to be charged as a public offence, if any member of

this House has failed to vote for a Virginian to be the President of the

United States?

It was the constitutional right of members of this House, in deciding

between the two candidates, to give their ballots for the one whom they

believed to be superior in practical capacity for administering the

Government--one whom they believed to be not hostile to the commercial

interests of the country, and not disposed to subject the Union to the

domination of a particular State, whatever might be its lordly

pretensions in consequence of extent of territory or antiquity of

dominion.

As the gentleman from Virginia has thought proper to speak of events

which took place about the time of passing the act in question, allow

me, sir, to mention one circumstance, of which he has said nothing. The

act, as finally enrolled, was signed by the Speaker of the House of

Representatives after the balloting for a President had commenced; and

the Clerk carried it to the other House for the signature of their

President. The candidate from Virginia was then in the chair of the

Senate. The Clerk of this House, on first presenting himself, as was

customary, at the door of the Senate Chamber, was not admitted. The

situation came to the knowledge of a Senator, and was communicated to

the Senate. After the sense of that body was found to be for his

admission, the door was opened, and the Clerk was admitted to deliver

his message, and present the enrolled bill for signature. It was then

signed by the President of the Senate.

What should be thought of this, as taken in connection with the fate of

the act and pendency of the Presidential election? Was it a circumstance

which must ever be remembered with mortification, and which therefore

will never be forgiven?

To give a further color to the suggestion that the passage of the act

was attended with improper circumstances, the attempt has been made to

impress an idea that it was adopted without mature deliberation, and

hurried through its different stages in a reprehensible manner. If we

are not willing to be misled by pretext, let us examine what was the

fact.

A recurrence to the journals of the House will prove that the subject of

the Judicial Establishment was recommended by the President of the

United States to the attention of Congress at two successive sessions.

In his communication at the opening of the first session of the sixth

Congress, he recommended the subject in the following terms:

"To give due effect to the civil administration of

Government, and to ensure a just execution of the laws, a

revision and amendment of the Judiciary system is

indispensably necessary. In this extensive country it

cannot but happen that numerous questions respecting the

interpretation of the laws and the rights and duties of

officers and citizens must arise. On the one hand, the laws

should be executed; on the other, individuals should be

guarded from oppression. Neither of these objects is

sufficiently assured under the present organization of the

Judicial Department. I therefore earnestly recommend the

subject to your serious consideration."

In the House of Representatives, this part of the President's Speech was

referred to a select committee. They reported a bill which contained a

variety of provisions for amending the system. The bill was referred to

a Committee of the Whole, in which it was discussed several days, and

was afterwards recommitted to the same gentlemen who had reported it. As

it was printed for the use of the members, and the subject was

extensively interesting to the community, it was judged proper to defer

a final decision until another session, and in the mean time gentlemen

might have an opportunity to acquire information that would assist them

to form a more satisfactory judgment.

At the second session of the sixth Congress, the subject was again

recommended by the President. These are his words:

"It is, in every point of view, of such primary importance

to carry the laws into prompt and faithful execution, and

to render that part of the administration of justice which

the constitution and laws devolve on the Federal courts, as

convenient to the people as may consist with their present

circumstances, that I cannot omit once more to recommend to

your serious consideration the Judiciary system of the

United States. No subject is more interesting than this to

the public happiness; and to none can those improvements

which may have been suggested by experience be more

beneficially applied."

On this recommendation a select committee was appointed. That committee

reported a bill to provide for the more convenient organization of the

courts of the United States. The bill underwent a long discussion and a

variety of amendments. It was finally passed in the House of

Representatives by a majority of 51 to 43; and in the Senate by a

majority of 16 to 11. After knowing these facts, will gentlemen have the

hardihood to call this a hasty measure?

Compare the whole proceedings with what took place respecting a former

act. Gentlemen have spoken of the general power of Congress to repeal

acts passed by their predecessors. Are they prepared to repeal the act

to which I now refer? It is the act relative to the temporary and

permanent seat of Government, passed in July, 1790. That act was carried

in the Senate by a majority of 14 to 12. In the House of

Representatives, a Committee of the Whole agreed to it as it came from

the Senate. Twelve different amendments were proposed in the House; the

yeas and nays were taken on each of them, and every amendment was

rejected--all in one day. A motion was then made for the third reading

of the bill on the Monday following; the motion was negatived. It was

moved that the third reading should be on the next day; this was

negatived. The yeas and nays were taken twelve times during the sitting.

A motion was made to adjourn; this was negatived. The general rule of

the House being against reading a bill twice on the same day without

special order, a motion for then reading the bill the third time was

made on the part of its advocates, and carried. On taking the yeas and

nays, for the thirteenth time in one day, the bill passed by a majority

of 32 to 29. Mark the smallness of the majority in both Houses; the

utter rejection of every amendment in the House of Representatives; the

hurried manner in which it was forced on to the final question.

Recollect other considerations relative to the passage of that act, and

then judge whether it was not attended with circumstances signally

improper. If matters of this kind constitute a sufficient cause for

gentlemen to repeal any act passed by their predecessors, why should we

remain here in pursuance of this act? Will any gentleman say it is for

our personal convenience that the seat of Government is now at this

place? Is it at present for the public convenience? Is it less expensive

for individuals, or for the public, than it would be in some of your

commercial cities? Have you here the opportunities for valuable

information which might be had elsewhere? What, then, should detain us,

if it be not a regard to stability and consistency in public

proceedings, combined with a regard to the expectations of respectable

persons seriously interested in the question? But if you may repeal the

act organizing the Judicial system, what principle is there that ought

to confine the Government to the place in which we are now assembled?

Repeal this act, as is proposed by the bill on your table, and you shake

the principle of public stability and consistency. Repeal this act, and

there can be no principle of constitutional obligation, none of

political honor, or legal right, to detain you here.

WEDNESDAY, March 3.

Mr. LOWNDES moved that the further consideration of the bill be

postponed until the first Monday in December next; on which a debate of

considerable length ensued; when, the question being taken thereupon, it

passed in the negative--yeas 32, nays 59.

And, after debate thereon, the main question was taken that the said

bill do pass, and resolved in the affirmative--yeas 59, nays 32, as

follows:

YEAS.--Willis Alston, John Archer, John Bacon, Theodorus

Bailey, Phanuel Bishop, Richard Brent, Robert Brown,

William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew

Clay, John Clopton, John Condit, Richard Cutts, Thomas T.

Davis, John Dawson, William Dickson, Lucas Elmendorph,

Ebenezer Elmer, John Fowler, William B. Giles, Edwin Gray,

Andrew Gregg, Joseph Heister, William Helms, Wm. Hoge,

James Holland, David Holmes, George Jackson, Charles

Johnson, William Jones, Michael Leib, John Milledge, Samuel

L. Mitchill, Thomas Moore, James Mott, Anthony New, Thomas

Newton, jun., Joseph H. Nicholson, John Randolph, jun.,

John Smilie, John Smith, (of New York,) John Smith, (of

Virginia,) Josiah Smith, Samuel Smith, Henry Southard,

Richard Stanford, Joseph Stanton, jun., John Stewart, John

Taliaferro, jun., David Thomas, Philip R. Thompson, Abram

Trigg, John Trigg, Philip Van Cortlandt, John P. Van Ness,

Joseph B. Varnum, Isaac Van Horne, and Henry Woods.

NAYS.--Thomas Boude, John Campbell, Manasseh Cutler, Samuel

W. Dana, John Davenport, John Dennis, William Eustis, Abiel

Foster, Calvin Goddard, Roger Griswold, William Barry

Grove, Seth Hastings, Joseph Hemphill, Archibald Henderson,

William H. Hill, Benjamin Huger, Thomas Lowndes, Lewis R.

Morris, Joseph Pierce, Thomas Plater, Nathan Read, John

Rutledge, John Stanley, Benjamin Tallmadge, Samuel Tenney,

Thomas Tillinghast, George B. Upham, Killian K. Van

Rensselaer, Peleg Wadsworth, Benjamin Walker, Lemuel

Williams, and Henry Woods.

FRIDAY, March 5.

_State Balances._

Mr. THOMAS, from the committee appointed to inquire into the expediency

of extinguishing the claims of the United States, for certain balances,

which, by the Commissioners appointed to settle the accounts between the

United States and the individual States, were reported to be due from

several of the States to the United States, made a report, as follows:

That the following balances were, by the said

Commissioners, reported to be due from the States

hereinafter mentioned, to wit: From the State of New York,

two millions seventy-four thousand eight hundred and

forty-six dollars; from the State of Pennsylvania,

seventy-six thousand seven hundred and nine dollars; from

the State of Delaware, six hundred and twelve thousand four

hundred and twenty-eight dollars; from the State of

Maryland, one hundred and fifty-one thousand six hundred

and forty dollars; from the State of Virginia, one hundred

thousand eight hundred and seventy-nine dollars; and from

the State of North Carolina, five hundred and one thousand

and eighty-two dollars.

That, as none of these States has evinced a disposition to

pay any part of those balances, except the State of New

York, which has been credited on the books of the Treasury

for two hundred and twenty-two thousand eight hundred and

ten dollars and six cents, for money expended in erecting

fortifications, pursuant to an act of Congress, passed the

5th of February, 1799; but as it would be unequal to ask a

further payment from that State exclusively, and as it does

not appear that any measure of coercion can ever be

resorted to, a further continuance of the demands against

those States, the justice and equity of which they do not

admit, will, in the opinion of the committee, answer no

useful purpose; but, on the contrary, is calculated to

occasion perpetual irritation and disquiet, as well to the

creditor as to the debtor States.

The committee are, therefore, of opinion, that it is

expedient to extinguish the claims of the United States for

those balances, and for that purpose report a bill, which

is herewith submitted.

The report was laid on the table. The bill was twice read, and

committed to a Committee of the whole House on Wednesday next.

WEDNESDAY, March 10.

An engrossed bill for revising and amending the acts concerning

Naturalization was read the third time, and on the question that the

same do pass, it was resolved in the affirmative--yeas 59, nays 27, as

follows:

YEAS.--Willis Alston, John Archer, John Bacon, Theodorus

Bailey, James A. Bayard, Phanuel Bishop, Thomas Boude,

Robert Brown, William Butler, Samuel J. Cabell, Thomas

Claiborne, Matthew Clay, John Clopton, John Condit, Thomas

T. Davis, John Dawson, John Dennis, William Dickson, Lucas

Elmendorph, Ebenezer Elmer, William Eustis, John Fowler,

Wm. B. Giles, Andrew Gregg, William Barry Grove, Joseph

Heister, William Helms, Joseph Hemphill, William Hoge,

James Holland, David Holmes, George Jackson, William Jones,

Michael Leib, John Milledge, Samuel L. Mitchill, Thomas

Moore, Thomas Newton, jun., Joseph H. Nicholson, John

Smilie, Israel Smith, John Smith, (of New York,) John

Smith, (of Virginia,) Samuel Smith, Henry Southard, Richard

Stanford, Joseph Stanton, jr., John Stewart, David Thomas,

Thomas Tillinghast, Philip R. Thompson, Abram Trigg, Philip

Van Cortlandt, John P. Van Ness, Joseph B. Varnum, Isaac

Van Horne, Robert Williams, and Henry Woods.

NAYS.--John Campbell, Manasseh Cutler, Samuel W. Dana, John

Davenport, Abiel Foster, Calvin Goddard, Roger Griswold,

Archibald Henderson, William H. Hill, Benjamin Huger,

Thomas Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thomas

Plater, Nathan Read, John Rutledge, John C. Smith, Josiah

Smith, John Stanley, Benjamin Tallmadge, Samuel Tenney,

George B. Upham, Killian K. Van Rensselaer, Peleg

Wadsworth, Benjamin Walker, and Lemuel Williams.

THURSDAY, March 11.

_Wyoming Controversy._

The House went into a Committee of the Whole on the report of the

committee to whom was referred the petition of sundry inhabitants of the

State of Pennsylvania, settled on the lands claimed under grants from

the State of Connecticut, antecedent to the trial before the court of

commissioners between the State of Pennsylvania and Connecticut.

The report of the committee embraces an historical view of the Wyoming

controversy, recites the act of Pennsylvania, for preventing intrusions

upon land in Northampton, Northumberland, and Luzerne Counties. The

report then proceeds to state:

"The petitioners complain of these acts as

unconstitutional, and pray that provisions may be made by

law for transferring the proceedings under these laws from

the State Courts of Pennsylvania to the Courts of the

United States; and that further provision may be made by

law, that in the trial of any prosecution in virtue of the

said acts the defendant may have a _venire facias_ to

summon juries from some State, other than Pennsylvania.

Your committee conceive that the right of jurisdiction was

finally settled by the decree of Trenton, of the 30th

December, 1783, and that by the decision of the circuit

court for the district of Pennsylvania in April, 1795, the

whole question of the right of soil was fully taken up and

decided by the court, in a case the most favorable for the

defendant; which decision not having been revised and

reversed, should also be considered as final and

conclusive.

"Your committee therefore, upon the whole circumstances of

the case, are of opinion, that the measures contemplated by

the petitioners would tend very much to increase the

embarrassments already experienced by the State of

Pennsylvania, in extending and enforcing its lawful

jurisdiction over the lands in question, and that it would

be highly inexpedient on the part of the United States to

interfere with the regulations of the States in that

respect, or to countenance, by any means whatever, any

circumstances of insubordination to the State authority.

"Your committee are therefore of opinion that the prayer of

the petitioners ought not to be granted."

After a debate, the committee rose and reported their agreement to the

report.

A motion was made and lost to recommit the report to a select committee.

It was then moved to postpone the further consideration of the report

till the last day of November next. Not carried.

The question was then taken on concurring with the Committee of the

Whole in their report, by yeas and nays, and agreed to--yeas 60, nays

17.

And so the petition was rejected.

FRIDAY, March 12.

The House being informed that NARSWORTHY HUNTER, the Delegate from the

Mississippi Territory, in this House, died last evening: