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SENATE.)

Proceedings.

[DECEMBER, 1801 gislation. A communication will also be made of our barking his life and fortunes permanently with us? progress in the execution of the law respecting the with restrictions, perhaps, to guard against the frsavessels directed to be sold.

dulent usurpation of our flag? an abase which The fortifications of our harbors, more or less ad- brings so much embarrassment and loss on the genvanced, present considerations of great difficulty. uine citizen, and so much danger to the nation of beWhile some of them are on a scale sufficiently pro- ing involved in war, that no endeavor should be portioned to the advantages of their position, to the spared to detect and suppress it. efficacy of their protection, and the importance of the These, fellow-citizens, are the matters respecting points within it, others are so extensive, will cost so the state of the nation which I have thought of immuch in their first erection, so much in their main- portance to be submitted to your consideration at tenance, and require such a force to garrison them, this time. Some others of less moment, or not yet as to make it questionable what is best now to be done. ready for communication, will be the subject of sepA statement of those commenced or projected ; of the arate Messages. I am happy in this opportunity of expenses already incurred; and estimates of their committing the arduous affairs of our Government to future cost, as far as can be foreseen, shall be laid the collected wisdom of the Union. Nothing shall be before you, that you may be enabled to judge wheth wanting on my part to inform, as far as in my power, er any alteration is necessary in the laws respecting the legislative judgment, nor to carry that judgment this subject.

into faithful execution. The prudence and temperAgriculture, manufactures, commerce, and naviga- ance of your discussions will promote, within your tion, the four pillars of our prosperity, are then most own walls, that conciliation which so much befriends thriving when left most free to individual enterprise. rational conclusion; and by its example will encourProtection from castal embarrassments, however, age among our constituents that progress of opinion may sometimes be seasonably interposed. If, in the which is tending to unite them in object and in will. course of your observations or inquiries, they should That all should be satisfied with any one order of appear to need any aid within the limits of our con- things, is not to be expected; but I indulge the stitutional powers, your sense of their importance is a pleasing persuasion that the great body of our citsufficient assurance they will occupy your attention, zens will cordially concur in honest and disinterested We cannot, indeed, but all feel an anxious solicitude efforts, which have for their object to preserve the for the difficulties under which our carrying trade General and State Governments in their constitutionwill soon be placed. How far it can be relieved, al form and equilibrium; to maintain peace abroad, otherwise than by time, is a subject of important con and order and obedience to the laws at home; to sideration.

establish principles and practices of administration The Judiciary system of the United States, and favorable to the security of liberty and property, and especially that portion of it recently erected, will, of to reduce expenses to what is necessary for the useful course, present itself to the contemplation of Con- purposes of Government. gress; and that they may be able to judge of the

THOMAS JEFFERSON. proportion which the institution bears to the business DECEMBER 8, 1801. it has to perform, I have caused to be procured from the several States, and now lay before Congress, an

The Letter and Message were read, and or exact statement of all the causes decided since the dered to be printed for the use of the Senate. first establishment of the courts, and of those which The papers referred to in the Message were were depending when additional courts and judges in part read, and the Senate adjourned. were brought in to their aid. And while on the Judiciary organization, it will be

WEDNESDAY, December 9. worthy of your consideration whether the protection of the inestimable institution of juries has been ex

The Senate proceeded to the appointment of tended to all the cases involving the security of our

a Chaplain to Congress on their part, and the persons and property. Their impartial selection also

Rev. Mr. GANTT was elected. being essential to their value, we ought further to consider whether that is sufficiently secured in those

THURSDAY, December 10. States where they are named by a marshal depend Resolved, That James Mathers, Sergeant-ating on Executive will, or designated by the court, or Arms and Doorkeeper to the Senate, be, and by officers dependent on them.

he is hereby, authorized to employ one ad'I cannot omit recommending a revisal of the laws | ditional assis

of the laws ditional assistant, and two horses, for the puron the subject of naturalization. Considering the ordinary chances of human life, a denial of citizen

pose of performing such services as are usually ship under a residence of fourteen years, is a denial

| required of the Doorkeeper to the Senate; and to a great proportion of those who ask it; and con

that the sum of twenty-eight dollars be allowed trols à policy pursued, from their first settlement, by him weekly for the purpose during the session, many of these States, and still believed of conge- and for twenty days after. quence to their prosperity. And shall we refuse to the unhappy fugitives from distress that hospitality

FRIDAY, December 11. which the savages of the wilderness extended to our JONATHAN Mason, from the State of Massafathers arriving in this land ? Shall oppressed hu- chusetts, and JAMES SHEAFE, from the State of manity find no asylum on this globe? The consti- | New Hampshire, severally attended. tution, indeed, has wisely provided that, for admission to certain offices of important trust, a residence shall be required sufficient to develope character and

MONDAY, December 14. design. Būt might not the general character and JAMES HILLHOUSE, from the State of Conneccapabilities of a citizen be safely communicated to ticut, and DWIGHT FOSTER, from the State of every one manifesting a bona fide purpose of em- | Massachusetts, severally attended.

JANUARY, 1802]
Judiciary System.

(SENATE A message from the House of Representatives | And, on motion to reconsider the above reinformed the Senate that the House have elect- solution, it passed in the affirmative-yeas 17, ed the Reverend WILLIAM PARKINSON a Chaplain nays 9. to Congress on their part.

YEAS.—Messrs. Anderson, Breckenridge, Cocke,

Dayton, Ellery, Dwight Foster, Hillhouse, Howard, SATURDAY, December 19.

Logan, Jonathan Mason, Morris, Ogden, Olcott,

Sumter, Tracy, White, and Wright. GOUVERNEUR MORRIS, from the State of New Nays.-Messrs. Baldwin, Brown, Chipman, T. York, attended.

Foster, Franklin, Jackson, Nicholas, Sheafe, and THOMAS SUMTER, appointed a Senator by the Stone. Legislature of the State of South Carolina, in On motion, to amend the resolution, by addthe place of their late Senator, Charles Pinck-ing, after the word stenographer, “He having ney, resigned, produced his credentials, was given bond in the sum of with two suffiqualified, and took his seat in the Senate.

cieut sureties, in the sum of each, for his

good conduct," it passed in the negative-yeas MONDAY, December 21.

10, nays 18, as follows: The credentials of Cropar Locan appointed YEAS. -Messrs. Chipman, Dayton, Dwight Foster, a Senator by the Legislature of the State of Hillhouse, Howard, Morris, Ogden, Olcott, Sheafe,

and Tracy. Pennsylvania, were presented and read; and

NAYS.—Messrs. Anderson, Baldwin, Breckenridge, the affirmation prescribed by law was admin

Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, istered by the President.

Jackson, Logan, S. T. Mason, J. Mason, Nicholas,

Stone, Sumter, White, and Wright.
TUESDAY, December 22.

On motion, to agree to the original resoluDAVID STONE, from the State of North Caro- tion, amended by adding the words “ or notelina, attended.

taker," after the words stenographer, it passed

in the affirmative-yeas 16, nays 12, as folMONDAY, December 28.

lows:

YEAS.—Messrs. Anderson, Baldwin, Breckenridge, JOAN EWING COLHOUN, appointed a Senator

| Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, by the Legislature of the State of South Caro- | Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumlina, produced his credentials, was qualified, and

ter, and Wright. took his seat in the Senate.

Nayg.-Messrs. Chipman, Dayton, Dwight Foster,

Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, THURSDAY, December 31.

Sheafe, Tracy, and White. Mr. BRECKENRIDGE presented the petition of

So it was Resolved, That any stenographer, Isaac Zane, stating that he was made a prisoner

or note-taker, desirous of taking the debates of

the Senate on Legislative business, may be adat the age of nine years by the Wyandot Indians, with whom he remained until he became

mitted for that purpose at such place, within

the area of the Senate Chamber, as the Presiof age; had a family by a woman of that na

dent shall allot.* tion, and a tract of land was assigned him by the said nation, on a branch of the Great Miami, and which tract of land was ceded to the

WEDNESDAY, January 6. United States by a recent treaty with the said

Judiciary System. Wyandot Indians, and praying such relief as Mr. Mason called for the reading of the Mes. may be deemed equitable; and the petition was sage, which was in part read; when the furread, and committed to Messrs. BRECKENRIDGE, ther reading of the whole document was susTrady, and OGDEN, to consider and report pended, and that part only read, which relates thereon.

to the Judiciary System.

TUESDAY, January 5, 1802.

tended.

Reporting the Debates.

signed Samuel H. Smith, stating that he was desirous of taking notes of the proceedings of the Senate, in such manner as to render them correct: Whereupon,

* [From the National Intelligencer of Jan. 8, 1802.] On Monday last the editor addressed a letter to tho President of the Senate, requesting permission to occupy & position in the lower area of the Senate Chamber, for the purpose of taking with correctness the debates and proceed. ings of that body.

It may be necessary to remark that heretofore no stenographer has been admitted in this area; and the upper galTery, being open to the admission of every one, and very remote from the floor of the House, bas prevented any attempt being made to take the debates, from the impossi. bility of hearing distinctly from it.

The contents of the letter were submitted by the Presi. dent to the Senate; and a resolution agreed to, to the fol. lowing effect: Resolved, That any stenographer, desirous to take the debates of the Senate on Legislative business, may be admitted for that purpose, at such place, within the area of the Senate Chamber, as the President shall allot.

On Wednesday the editor had, accordingly, assigned to him a convenient place in the lower aren, from which bo took notes of the proceedings of the Senate.

take the debates of the Senate on Legislative

such place within the area of the Senate Chamber as the President may allot:

VOL. II.-35

SENATE.)

Judiciary System.

[JANTART, 1802 Upon which Mr. BRECKENRIDGE, from Ken- | petent to the prompt and proper discharge of tucky, rose, and stated that two days ago he the duties consigned to them. To hold out a had given notice that on this day he would sub-show of litigation, when in fact little exista, mit to the consideration of the Senate two re- must be impolitic; and to multiply expensive solutions respecting the Judiciary Establishment systems, and create hosts of expensive officer, of the United States. As, however, those re- without having experienced an actual necessity solutions were not necessarily connected, and for them, must be a wanton waste of the public as they might be distinctly discussed, he would treasure. at present confine himself to moving the first The document before us shows that, at the resolution; without however foreclosing to passage of this act, the existing courts, not only himself the right of submitting the second after from their number, but from the suits dependthe disposition of the first. He, therefore, ing before them, were fully competent to a moved that the act passed last session respect- speedy decision of those snits. It shows, that ing the Judiciary Establishment of the United on the 15th day of June last, there were de States be repealed.

pending in all the circuit courts, (that of Mary. [This is the act which created sixteen new land only excepted, whose docket we have not circuit judges.)

been furnished with,) one thousand five hundred and thirty-nine suits. It shows that eight

thousand two hundred and seventy-six suits of Friday, January 8.

every description have come before those courts, Judiciary System.

in ten years and upwards. From this it apAgreeably to the order of the day, the Sen-pears, that the annual average amount of suits ate proceeded to the consideration of the mo

has been about eight hundred. tion made on the 6th instant, to wit:

But sundry contingent things have conspired “ That the act of Congress passed on the 13th day

to swell the circuit court dockets. In Mary. of February, 1801, entitled . An act to provide for

land, Virginia, and in all the Southern and the more convenient organization of the Courts of the

South-western States, a great number of suits United States,' ought to be repealed." *

have been brought by British creditors; this Mr. BRECKENRIDGE then rose and addressed

species of controversy is nearly at an end. the PRESIDENT, as follows:

In Pennsylvania, the docket has been swelled It will be expected of me, I presume, sir, as I

by prosecutions in consequence of the Western

insurrection, by the disturbances in Bucks and introduced the resolution now under consider

Northampton Counties: and by the sedition acha ation, to assign my reasons for wishing a repeal of this law.

These I find amount in that State to two bunThis I shall do; and shall endred and forty suits. deavor to show: 1. That the law is unnecessary and improper, I

In Kentucky, non-resident land claimants

have gone into the federal court from 8 temand was so at its passage; and 2. That the courts and judges created by it,

porary convenience: because, until within can and ought to be abolished.

year or two past, there existed no court a

general jurisdiction co-extensive with the whold 1st. That the act under consideration was un

State. I find, too, that of the six hundred and necessary and improper, is, to my mind, no

odd suits which have been commenced there, difficult task to prove. No increase of courts

one hundred and ninety-six of them have been or judges could be necessary or justifiable, un

| prosecutions under the laws of the United less the existing courts and judges were incom

States.

In most of the States there have been proses On the adoption of the above resolution, which opens & new door to public information, and which may be con

cutions under the sedition act. This source of sidered as the prelude to a more genuine sympathy between litigation is, I trust, for ever dried up. And, the Senate and the people of the United States, than may

lastly, in all the States a number of suits have have heretofore subsisted, by rendering each better acquainted with the other, we congratulate, without qualifi

| arisen under the excise law; which source of cation, every friend to the true principles of our republican controversy will, I hope, before this session institutions.

terminates, be also dried up. * This motion gave rise to one of the most extended and

But this same document discloses another im. earnest debates which had occurred in Congress, involving

| portant fact; which is, that notwithstanding all the interests and passions of party, as well as questions of high constitutional law and of great public expediency; and

these untoward and temporary sources of federwas brought on in the approved parliamentary form of a

| al adjudication, the suits in those courts are resolution to try the principle, unembarrassed with the de

decreasing; for, from the dockets exhibited tails of a new bill. The law proposed to be repeated besides I (except Kentucky and Tennessee, whose gulis

sixteen new circuit indges at once to the federal are summed up in the aggregate) it appear bench. (making 39 in all) was passed in the last days of an | that in 1799 there were one thousand two expiring administration, and the appointments made in dred and seventy-four, and in 1800 there " these last moments, and well confined to one political

six hundred and eighty-seven suits commenced, party: so that many reasons conspired to make it objec showing a decrease of five hundred and eightya tionable on one hand and desirable on the other, and to seven suits. call forth the strongest exertions both for, and against, the Could it be necessary then to increase coure repeal.

I when suits were decreasing? Conld it be De

DEBATES OF CONGRESS.

547 JANUARY, 1802.] Judiciary System.

[SENATE. cessary to multiply judges, when their duties construction of this clause in the constitution, were diminishing? And will I not be justified, that Congress may abolish as well as create therefore, in affirming, that the law was un- these judicial officers; because it does expressnecessary, and that Congress acted under a ly, in the twenty-seventh section of the act, mistaken impression, when they multiplied abolish the then existing inferior courts, for the courts and judges at a time when litigation was purpose of making way for the present. This actually decreasing?

construction, I contend, is correct; but it is But, sir, the decrease of business goes a small equally pertinent to my object, whether it be way in fixing my opinion on this subject. I am or be not. If it be correct, then the present inclined to think, that so far from there having inferior courts may be abolished as constitubeen a necessity at this time for an increase tionally as the last; if it be not, then the law of courts and judges, that the time never will for abolishing the former courts, and establisharrive when America will stand in need of | ing the present, was unconstitutional, and conthirty-eight federal judges. Look, sir, at your sequently repealable. constitution, and see the judicial power there But independent of this legislative construcconsigned to federal courts, and seriously ask tion, on which I do not found my opinion, nor yourself, can there be fairly extracted from those mean to rely my argument, there is little doubt powers subjects of litigation sufficient for six | indeed, in my mind, as to the power of Consupreme and thirty-two inferior court judges ? gress on this law. The first section of the To me it appears impossible.

third rticle vests the judicial power of the The judicial powers given to the federal United States in one Supreme Court and such courts were never intended by the constitution inferior courts as Congress may, from time to to embrace, exclusively, subjects of litigation, time, ordain and establish. By this clause which could, with propriety, be left with the Congress may, from time to time, establish inState courts. Their jurisdiction was intended ferior courts; but it is clearly a discretionary principally to extend to great national and power, and they may not establish them. The foreign concerns. Except cases arising under language of the constitution is very different the laws of the United States, I do not at pre- | when regulations are not left discretional. For sent recollect but three or four kinds in which exainple, “ The trial," says the constitution, heir power extends to subjects of litigation, in “ of all crimes ' (except in cases of impeachwhich private persons only are concerned. ment) shall be by jury: representatives and diAnd can it be possible, that with a jurisdiction rect taxes shall be apportioned according to embracing so small a portion of private litiga-numbers. All revenue bills shall originate in ion, in a great part of which the State courts the House of Representatives,'" &c. It would, night, and ought to participate, that we can therefore, in my opinion, be a perversion, not stand in need of thirty-eight judges, and ex- only of language, but of intellect, to say, that Dend in judiciary regulations the annual sum of although Congress may, from time to time, es$137,000?

tablish inferior courts, yet, when established, No other country, whose regulations I have that they shall not be abolished by a subseiny knowledge of, furnishes an example of a quent Congress possessing equal powers. It ystem so prodigal and extensive. In England, would be a paradox in legislation. whose courts are the boast, and said to be the 2d. As to the judges. The Judiciary Deecurity of the rights of the nation, every man partment is so constructed as to be sufficiently Snows there are but twelve judges and three secured against the improper influence of either principal courts. These courts embrace, in the Executive or Legislative Departments. The heir original or appellate jurisdiction, almost courts were organized and established by the he whole circle of human concerns.

Legislature, and the Executive creates the The King's Bench and Common Pleas, which judges. Being thus organized, the constitution Consist of four judges each, entertain all the affords the proper checks to secure their honesty common law suits of 408. and upwards, origi- and independence in office. It declares they nating among nine millions of the most com- shall not be removed from office during good mercial people in the world. They moreover behavior; nor their salaries diminished during revise the proceedings of not only all the petty their continuance in office. From this it reCourts of record in the kingdom, even down to sults, that a jndge, after his appointment, is the courts of piepoudre, but also of the Court totally out of the power of the President, and of King's Bench in Ireland; and these supreme his salary secured against legislative diminution, courts, after centuries of experiment, are found during his continuance in office. The first of to be fully competent to all the business of the these checks, which protects a judge in his kingdomn.

office during good behavior, applies to the I will now inquire into the power of Con- President only, who would otherwise have gress to put down these additional courts and possessed the power of removing him, like all judges.

other officers, at pleasure; and the other check, First, as to the courts, Congress are em- forbidding a diminution of their salaries, applies powered by the constitution " from time to to the Legislature only. They are two separate time, to ordain and establish inferior courts." and distinct checks, furnished by the constituThe act now under consideration, is a legislative / tion against two distinct departments of the

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SENATE.]

Judiciary System.

(JANUARY, 1802 Government, and they are the only ones which /traction from and correction of our errors. O are or ought to have been furnished on the all other subjects of legislation we are allowed subject.

it seems, to change our minds, except on juo But because the constitution declares that aciary subjects, which, of all others, are the most judge shall hold his office during good be-complex and difficult. I appeal to our own havior, can it be tortured to mean, that he statute book to prove this difficulty: for in ten shall hold his office after it is abolished? Can years Congress have passed no less than twenty it mean, that his tenure should be limited by six laws on this subject. behaving well in an office which did not exist ? Mr. J. Mason, of Massachusetts, said, it Can it mean that an office may exist, although would be agreed on all hands that this was obe its duties are extinct? Can it mean, in short, of the most important questions that ever cathe that the shadow, to wit, the judge, can remain, before a Legislature. Were he not of this opin when the substance, to wit, the office, is re- ion he would not have risen to offer his senti moved? It must have intended all these ab-ments But he felt so deep an interest in the surdities, or it must admit a construction which question, and from the respect which he enter will avoid them,

tained foi the district of connus he represented The construction obviously is, that a judge he deemed it his duty to meet the subject, and should hold an existing office, so long as he did not be satisfied with giving to it his silent nezihis duty in that office; and not that he should tive. hold an office that did not exist, and perform The constitution, in the construction of the duties not provided by law. Had the construc- Executive, Legislative, and Judiciary Depart tion which I contend against been contemplated ments, had assigned to each s 'ifferent tenure. by those who framed the constitution, it would The President was chosen for four years; the have been necessary to have declared, explicitly, Senate for six years, subject to a prescribed rothat the judges should hold their offices and station biennially; the House of Representatives their salaries during good behavior.

for two years; and the Judiciary during good Let me not be told, sir, that the salaries in behavior. It says to the President, at the eru the present case are inconsiderable, and ought piration of every four years, you shall revert w not to be withheld; and that the doctrine is the character of a private citizen, however not a dangerous one. I answer, it is the prin- splendid your talents or conspicuous your Fir ciple I contend against; and if it is heterodox tue. Why? Because you have assigned to for one dollar, it is equally so for a million. you powers which it is dangerous to exercise But I contend the principle, if once admitted, You have the power of creating offices and ottmay be extended to destructive lengths. Sup- cers. You have prerogatives. The temptation pose it should hereafter happen, that those in to an abuse of your power is great. Such has power should combine to provide handsomely been the uniform experience of ages. The coll: for their friends, could any way so plain, easy, stitution holds the same language to the Senate and effectual, present itself, as by creating and House of Representatives : It says, it is that courts, and filling them with those friends? cessary for the good of society that you also Might not sixty as well as sixteen, with salaries should revert at short periods to the mass of of twenty thousand, instead of two thousand the people, because to you are consigned the dollars, be provided for in this way?

most important duties of Government, and be There is another difficulty under this con- cause you hold the purse-strings of the natin.. struction still to encounter, and which also to the Judiciary: What is the language by grows out of the constitution: By the consti- plied to them The judges are not appointed tution, a new State may be formed by the junc- for two, four, or any given number of years: tion of two or more States, with their assent but they hold their appointments for life, unless and that of Congress. If this doctrine, once a they misbehave themselves. Why? For til: judge and always a judge, be correct, what reason: They are not the depositaries of the would you do in such an event, with the dis- high prerogatives of Government. They neither trict judges of the States who formed that junc-appoint to office, nor hold the purse-strings of tion? Both would be unnecessary, and you the country, nor legislate for it. They depend would have, in a single State, two judges of entirely upon their talents, which is all the equal and concurrent jurisdiction; or one a real have to recommend them. They cannot, th judge, with an office, and another a quasi judge, fore, be disposed to pervert their power to without an office. The States also forming such proper purposes. What are their duties? junction, would be equally embarrassed with expound and apply the laws. To do this wil their State judges; for the same construction fidelity and skill, requires a length of the would be equally applicable to them.

The requisite knowledge is not to be procure Upon this construction, also, an infallibility in a day. These are the plain and strong the is predicated, which it would be arrogance in sons which must strike every mind, for the any human institution to assume, and which ferent tenure by which the judges hold th goes to cut up legislation by the roots. We offices, and they are such as will eternally but would be debarred from that which is indulged dure wherever liberty exists. to us from a higher source, and on subjects of On examination, it will be found that higher concern than legislation ; I mean a re-people, in forming their constitution, mea

eant to

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