SENATE.]

Judiciary System.

[JANUARY, 1802.

whether a law was not previously necessary be- | good behavior, could a doubt have existed on fore the Supreme Court could be organized. the interpretation of this act, under all its st They reply, that the constitution says, there tending circumstances, that the judges of the inshall be a Supreme Court, and therefore the ferior courts were intended as well as those of Congress are commanded to organize it, while the Supreme Court? But did the framers of the rest is left to their discretion. This, sir, is the constitution stop here? Is there then nonot the fact. The constitution says, the judicial thing more? Did they risk on these grammati power shall be vested in one Supreme Court, cal niceties the fate of America? Did they rest and in inferior courts. The Legislature can here the most important branch of our Governtherefore only organize one Supreme Court, but ment? Little important, indeed, as to foreign they may establish as many inferior courts as danger; but infinitely valuable to our domestic they shall think proper. The designation made peace, and to personal protection against the of them by the constitution is, such inferior oppression of our rulers. No; lest a doubt courts as the Congress may from time to time should be raised, they have carefully connected ordain and establish. But why, say gentlemen, the judges of both courts in the same sentence; fix precisely one Supreme Court, and leave the they have said, "the judges both of the supreme rest to Legislative discretion? The answer is and inferior courts," thus coupling them insepsimple it results from the nature of things | arably together. You may cut the bands, but from the existent and probable state of our you can never untie them. With salutary eaucountry. There was no difficulty in deciding tion they devised this clause to arrest the overthat one and only one Supreme Court would be bearing temper which they knew belonged to proper or necessary, to which should lie appeals Legislative bodies. They do not say the judges, from inferior tribunals. Not so as to these. simply, but the judges of the supreme and inThe United States were advancing in rapid pro- ferior courts shall hold their offices during good gression. Their population of three millions was behavior. They say, therefore, to the Legisla soon to become five, then ten, afterwards ture, you may judge of the propriety, the utilitwenty millions. This was well known, as far ty, the necessity, of organizing these courts; as the future can become an object of human but when established, you have done your comprehension. In this increase of numbers, duty. Anticipating the course of passion in with a still greater increase of wealth, with the future times, they say to the Legislature, you extension of our commerce and the progress of shall not disgrace yourselves by exhibiting the the arts, it was evident that although a great indecent spectacle of judges established by one many tribunals would become necessary, it was Legislature removed by another. We will save impossible to determine either on the precise you also from yourselves. We say these judges number or the most convenient form. The con- shall hold their offices; and surely, sir, to prevention did not pretend to this prescience; tend that they can hold their office after the but had they possessed it, would it have been office is destroyed, is contemptible. proper to have established, then, all the tribunals necessary for all future times? Would it have been wise to have planted courts among the Chickasaws, the Choctaws, the Cherokees the Tuscaroras, and God knows how many more, because at some future day the regions over which they roam might be cultivated by polished men! Was it not proper, wise and necessary, to leave in the discretion of Congress the number and the kind of courts which they might find it proper to establish for the purpose designated by the constitution? This simple statement of facts-facts of public notoriety-is alone a sufficient comment on, and explanation of, the word on which gentlemen have so much relied. The convention in framing, the people in adopting, this compact say the judicial power shall extend to many cases, the original cognizance whereof shall be by the inferior courts; but it is neither necessary, nor even possible now to determine their number or their form; that essential power, therefore, shall vest in such inferior courts as the Congress may from time to time, in the progression of time, and according to the indication of circumstances, establish; not provide, or determine, but establish. Not a mere temporary provision, but an establishment. If, after this, it had said in general terms, that judges should hold their offices during

The framers of this constitution had seen much, read much, and deeply reflected. They knew by experience the violence of popular bodies, and let it be remembered, that since that day many of the States, taught by experience, have found it necessary to change their forms of government to avoid the effects of that violence. The convention contemplated the very act you now attempt. They knew also the jealousy and the power of the States; and they established for your and for their protection this most important department. I beg gentlemen to hear and remember what I say: it is this department alone, and it is the independence of this department, which can save you from civil war. Yes, sir, adopt the language of gentlemen, say with them, by the act to which you are urged, "if we cannot remove the judges we can destroy them." Establish thus the dependence of the Judiciary Department, who will resort to them for protection against you? Who will confide in, who will be bound by their decrees? Are we then to resort to the ultimate reason of kings? Are our arguments to fly from the mouths of our cannon?

Is there a member of this House, who can lay his hand on his heart, and say that, consistently with the plain words of our constitution, we have a right to repeal this law? I believe

not. And if we undertake to construe this constitution to our purposes, and say that public opinion is to be our judge, there is an end to all constitutions. To what will not this dangerous doctrine lead? Should it to-day be the popular wish to destroy the First Magistrate, you can destroy him; and should he to-morrow be able to conciliate to him the popular will, and lead them to wish for your destruction, it is easily effected. Adopt this principle and the whim of the moment will not only be the law, but the constitution of our country.

[SENATE.

a shield before it, I would build around it a wall of brass. But I am too weak to defend the rampart against the host of assailants. I must call to my assistance their good sense, their patriotism and their virtue. Do not, gentlemen, suffer the rage of passion to drive reason from her seat. If this law be indeed bad, let us join to remedy the defects. Has it been passed in a manner which wounded your pride, or aroused your resentment? Have, I conjure you, the magnanimity to pardon that offence. I entreat, I implore you to sacrifice those angry passions to the interests of our country. Pour out this pride of opinion on the altar of patriotism. Let it be an expiatory libation for the weal of America. Do not, for God's sake, do not suffer that pride plunge us all into the abyss of ruin. Indeed, indeed, it will be but of little, very little avail, whether one opinion or the other be right or wrong; it will heal no wounds, it will pay no debts, will rebuild no ravaged towns. Do not rely on that popular will, which has brought us frail beings into political existence. That opinion is but a changeable thing. It will soon change. This very measure will change it. You will be deceived. Do not, I beseech you, in reliance on a foundation so frail, commit the dignity, the harmony, the existence of our nation to the wild wind. Trust not your treasure to the waves. Throw not your compass and your charts into the ocean. Do not believe that its billows will waft you into port. Indeed, indeed, you will be deceived. Cast not away this only anchor of our safety. I have seen its progress. I know the difficulties through which it was obtained. I stand in the presence of Almighty God, and of the world: and I declare to you, that if you lose this charter, never, no, never will you get another! We are now, perhaps, arrived at the parting point. Here, even here, we stand on the brink of fate. Pausepause! For Heaven's sake, pause!

The gentleman from Virginia has mentioned a great nation brought to the feet of one of her servants. But why is she in that situation? Is it not because popular opinion was called on to decide every thing, until those who wore bayo-to nets decided for all the rest? Our situation is peculiar. At present our national compact can prevent a State from acting hostilely towards the general interest. But let this compact be destroyed, and each State becomes instantaneously vested with absolute sovereignty. Is there no instance of a similar situation to be found in history? Look at the States of Greece. They were once in a condition not unlike to that in which we should then stand. They treated the recommendations of their Amphictyonic Council (which was more a meeting of Ambassadors than a Legislative assembly) as we did the resolutions of the old Congress. Are we wise? So they were. Are we valiant? They also were brave. Have we one common language, and are we united under one head? In this, also, there was a strong resemblance. But, by their divisions, they became at first victims to the ambition of Philip, and were at length swallowed up in the Roman empire. Are we to form an exception to the general principles of nature, and to all the examples of history? And are the maxims of experience to become false, when applied to our fate?

Some, indeed, flatter themselves that our destiny will be like that of Rome. Such, indeed, it might be, if we had the same wise but vile aristocracy, under whose guidance they became the masters of the world. But we have not that strong aristocratic arm, which can seize a wretched citizen, scourged almost to death by a remorseless creditor, turn him into the ranks, and bid him, as a soldier bear our eagle in triumph round the globe! I hope to God we shall never have such an abominable institution. But what, I ask, will be the situation of these States (organized as they now are) if, by the dissolution of our national compact, they be left to themselves? What is the probable result? We shall either be the victims of foreign intrigue, and split into factions, fall under the domination of a foreign power, or else, after the misery and torment of civil war, become the subjects of a usurping military despot. What but this compact-what but this specific part of it, can save us from ruin? The judicial power, that fortress of the constitution, is now to be overturned. Yes, with honest Ajax, I would not only throw

WEDNESDAY, February 3.

The question was then taken on the final passage of the bill and determined in the affirmative-yeas 16, nays 15, as follows:

YEAS.-Messrs. Anderson, Baldwin, Bradley, Breckenridge, Brown, Cocke, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright.

NAYS.-Messrs. Chipman, Colhoun, Dayton, D. Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Ross, Sheafe, Tracy, Wells, and White.*

So it was Resolved, That this bill pass, that it be engrossed, and that the title thereof be " An act to repeal certain acts respecting the organization of the courts of the United States, and for other purposes."

SATURDAY, April 17.

The VICE PRESIDENT being absent, the Senate proceeded to the election of a President pro

*It was a party vote, and a close one, some changes of

members having changed the majority since the last session then a bare majority on the Federal side.

Relief to Widows and Orphans of Naval and Marine Officers.

The Senate resumed the third reading of the bill, entitled "An act for the relief of the widows and orphans of certain persons who have died, or may hereafter die, in the naval service of the United States."

On motion to strike out the second section of the bill, to wit:

"SEC. 2. And be it further enacted, That if any commissioned or warrant officer of the Navy, or commissioned officer of Marines, have died, or shall hereafter die, by reason of wounds received while in the actual service of the United States, or have been lost at sea, or drowned, or shall hereafter be lost at sea, or drowned, while in the service as aforesaid, and in the actual line of his duty, and shall leave a widow, or if not, leave a child or children, under age, such widow, or such child, or children, as the case may be, shall be entitled to, and receive, the half of the monthly pay to which the deceased was entitled at the time of his death, and for and during the term of five years. And in case of the death or intermarriage of such widow, before the expiration of the said term of five years, the half pay for the residue of the term shall go to the child or children of such deceased officer under the age of sixteen years; and, in like manner, the allowance to the child or children of such deceased, in case there be no widow, shall be paid no longer than during the time there is a child or children under the age of sixteen years."

It passed in the affirmative-yeas 16, nays 8, as follows:

YEAS.-Messrs. Anderson, Baldwin, Bradley, Brown, Clinton, Cocke, Dayton, T. Foster, Franklin, Jackson, S. T. Mason, Ogden, Olcott, Stone, Sumter, and Wright.

NAYS.-Messrs. Ellery, Dwight Foster, Howard, J. Mason, Morris, Nicholas, Wells, and White.

Georgia Limits.

[APRIL, 1809

Articles of agreement and cession have accordingly been entered into and signed by the said Commi sioners of the United States and of Georgia, which as they leave a right to Congress to act upon them legislatively, at any time within six months after their date, I have thought it my duty immediately to communicate to the Legislature.

APRIL 26, 1802.

TH. JEFFERSON.

The Message and documents therein referred to were read, and ordered to be printed for the use of the Senate.

TUESDAY, April 27.

State Government for Ohio.

The Senate resumed the second reading of the bill to enable the people of the Eastern division of the territory north-west of the river Ohio to form a constitution and State government.

On motion, section sixth, to strike out the following words, reported by the committee to be struck out, and which report was amended, as follows:

"Provided, That the convention of the said State shall, on its part, assent that each and every tract of land sold by Congress, from and after the 30th day of June next, shall be and remain exempt from any tax laid by order or under authority of the State, whether for State, county, township, or any other purpose whatever, for the term of five years from and after the day of sale :"

It passed in the negative-yeas 12, nays 14, as follows:

YEAS.-Messrs. Bradley, Brown, Dayton, Dwight, Foster, Howard, J. Mason, Morris, Ogden, Oleo, Tracy, Wells, and White.

NAYS.-Messrs. Anderson, Baldwin, Breckenridg Clinton, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright.

On motion to strike out the words reported by the committee to be struck out of section sixth, and amended as follows:

"Third. That one-twentieth part of the net proceeds of the lands lying within the said State, sold by Congress, from and after the thirtieth day of June next, after deducting all expenses incident to the same, shall be applied to the laying out and making public roads, leading from the navigable waters emptying into the Atlantic to the Ohio, or to the navigable waters thereof, and continued through the said State: such roads to be laid out under the authority of Congress with the consent of the several

The following Message was received from the States through which the road shall pass :" PRESIDENT OF THE UNITED STATES:

Gentlemen of the Senate, and

of the House of Representatives : In pursuance of the act, entitled "An act supplemental to the act, entitled 'An act for an amicable settlement of limits with the State of Georgia, and authorizing the establishment of a government in the Mississippi Territory,"" James Madison, Secretary of State, Albert Gallatin, Secretary of the Treasury, and Levi Lincoln, Attorney General of the United States, were appointed Commissioners, to settle by compromise, with the Commissioners appointed by the State of Georgia, the claims and cession to which the said act has relation.

It passed in the negative-yeas 12, nays 14, as follows:

YEAS.-Messrs. Bradley, Brown, Dayton, Dwight Foster, Howard, J. Mason, Morris, Ogden, Olcott, Tracy, Wells, and White.

NAYS.-Messrs. Anderson, Baldwin, Breckenridge, Clinton, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright.

On motion to strike out these words, reported by the committee to be struck out of the sixth section:

"Second. That the six miles reservation, including the salt springs, commonly called the Scioto Salt

Adjournment.

On motion to strike out the third section, | Columbia; " reported amendments which were agreed to yesterday, it passed in the affirmative read, and ordered to lie for consideration. -yeas 12, nays 11, as follows: