Page images
PDF
EPUB
[blocks in formation]

go into a detailed view of the events which compelled the Government to put on the armor of defence, and to resist by force the French aggressions. All the world know the efforts which were made to accomplish an amicable adjustment of differences with that power. It is enough to state, that ambassadors of peace were twice repelled from the shores of France with ignominy and contempt. It is enough to say, that it was not till after we had drunk the cup of humiliation to the dregs, that the national spirit was roused to a manly resolution, to depend only on their God and their own courage for protection. What, sir, did it grieve the gentleman that we did not crouch under the rod of the Mighty Nation, and, like the petty powers of Europe, tamely surrender our independence? Would he have had the people of the United States relinquish without a struggle those liberties which had cost so much blood and treasure? We had not, sir, recourse to arms, till the mouths of our rivers were choked with French corsairs; till our shores, and every harbor, were insulted and violated; till half our commercial capital had been seized, and no safety existed for the remainder but the protection of force. At this moment a noble enthusiasm electrized the country; the national pulse beat high, and we were prepared to submit to every sacrifice, determined only that our independence should be the last. At that time an American was a proud name in Europe; but I fear, much I fear, that in the course we are now likely to pursue, the time will soon arrive when our citizens abroad will be ashamed to acknowledge their country.

The measures of 1798 grew out of the public feelings; they were loudly demanded by the public voice. It was the people who drove the Government to arms, and not (as the gentleman expressed it) the Government which pushed the people to the X, Y, Z of the political designs before they understood the A, B, C of their political principles.

But what, sir, did the gentleman mean by his X, Y, Z? I must look for something very significant something more than a quaintness of expression, or a play upon words-in what falls from a gentleman of his learning and ability. Did he mean that the dispatches which contained those letters were impostures, designed to deceive and mislead the peole of Americaintended to rouse a false spirit not justified by events? Though the gentleman had no respect for some of the characters of that embassy; though he felt no respect for the Chief Justice, or the gentleman appointed from South Carolina -two characters as pure, as honorable, as exalted, as any the country can boast of-yet I should have expected that he would have felt some tenderness for Mr. Gerry, in whom his party had since given proofs of undiminished confidence. Does the gentleman believe that Mr. Gerry would have joined in the deception, and assisted in fabricating a tale which was to blind his countrymen, and to enable the Govern

[ocr errors]

[FEBRUARY, 182

ment to destroy their liberties? Sir, I will avail myself of the equivocations or confessic of Talleyrand himself; I say these gentlene will not dare publicly to deny what is attes by the hand and seal of Mr. Gerry.

The truth of these despatches admitted, whe was your Government to do? Give us, saria Directory, 1,200,000 livres for our own pts. and purchase $15,000,000 of Dutch debt, (#26) was worth nothing,) and we will receive you Ministers, and negotiate for peace.

It was only left to the Government to choo between an unconditional surrender of the be? and independence of the country, or a ma resistance. Can you blame, sir, the Administr tion for a line of conduct which has reflected on the nation so much honor, and to which, unde God, it owes its present prosperity?

These are the events of the General Gover ment which the gentleman has reviewed in sus cession, and endeavored to render odions or E picious. For all this I could have forgiven him. but there is one thing for which I will not, I cannot forgive him-I mean this attempt to de turb the ashes of the dead; to disturb the ashs of the great and good WASHINGTON! Sir. might degrade by attempting to eulogize the illustrious character. The work is infinitely be yond my powers. I will only say, that as leng as exalted talents and virtues confer bon ? among men, the name of WASHINGTON will b held in veneration.

After, Mr. Chairman, the honorable membe had exhausted one quiver of arrows against the late Executive, he opened another, equall poisoned, against the Judiciary. He has told us sir, that when the power of the Government was rapidly passing from Federal hands-after we had heard the thundering voice of the peo ple which dismissed us from their service-we erected a Judiciary, which we expected would afford us the shelter of an inviolable sanctuary. The gentleman is deceived. We knew better, sir, the characters who were to succeed us, and we knew that nothing was sacred in the eyes of infidels. No, sir, I never had a thought tha any thing belonging to the Federal Government was holy in the eyes of those gentlemen. I could never, therefore, imagine that a sanctuary could be built up which would not be violated. I believe these gentlemen regard public opinion, because their power depends upon it; but I be lieve they respect no existing establishment of the Government; and if public opinion could be brought to support them, I have no doubt they would annihilate the whole. I shall at present only say further, on this head, that we thought the reorganization of the Judicial system a useful measure, and we consider it as a duty to employ the remnant of our power to the best advantage of our country.

The honorable gentleman expressed his joy that the constitution had at last become sacred in our eyes: that we formerly held that it meant every thing or nothing. I believe, sir, that the constitution formerly appeared different in our

[blocks in formation]

eyes from what it appears in the eyes of the dominant party. We formerly saw in it the principles of a fair and goodly creation. We looked upon it as a source of peace, of safety, of honor, and of prosperity to the country. But now the view is changed; it is the instrument of wild and dark destruction; it is a weapon which is to prostrate every establishment to which the nation owes the unexampled blessings which it enjoys.

The present state of the country is an unanswerable commentary upon our construction of the constitution. It is true that we made it mean much; and hope, sir, we shall not be taught by the present Administration that it can mean even worse than nothing.

The gentleman has not confined his animadversions to the individual establishment, but has gone so far as to make the judges the subject of personal invective. They have been charged with having transgressed the bounds of Judicial duty, and become the apostles of a political sect. We have heard of their travelling about the country for little other purpose than to preach the Federal doctrines to the people.

Sir, I think a judge should never be a partisan. No man would be more ready to condemn a judge who carried his political prejudices or antipathies on the bench. But I have still to learn that such a charge can be sustained against the judges of the United States.

The constitution is the supreme law of the land, and they have taken pains, in their charges to grand juries, to unfold and explain its principles. Upon similar occasions they have enumerated the laws which compose our criminal code, and when some of those laws have been denounced by the enemies of the Administration as unconstitutional, the judges may have felt themselves called upon to express their judgments upon that point, and the reasons of their opinions.

So far, but no farther, I believe, the judges have gone. In going thus far, they have done nothing more than faithfully discharge their duty. But if, sir, they have offended against the constitution or laws of the country, why are they not impeached? The gentleman now holds the sword of justice. The judges are not a privileged order; they have no shelter but their innocence. But, in any view, are the sins of the former judges to be fastened upon the. new Judicial system? Would you annihilate a system, because some men under part of it had acted wrong? The constitution has pointed out a mode of punishing and removing the men, and does not leave this miserable pretext for the wanton exercise of powers which is now contemplated.

The honorable member has thought himself justified in making a charge of a serious and frightful nature against the judges. They have been represented going about searching out victims of the Sedition law. But no fact has been stated; no proof has been adduced, and the gentleman must excuse me for refusing my be

[H. OF R.

lief to the charge, till it is sustained by stronger and better ground than assertion.

If, however, Mr. Chairman, the eyes of the gentlemen are delighted with victims, if objects of misery are grateful to his feelings, let me turn his view from the walks of the judges to the track of the present Executive. It is in this path we see the real victims of stern, uncharitable, unrelenting power. It is here, sir, we see the soldier who fought the battles of the Revolution, who spilt his blood and wasted his strength to establish the independence of his country, deprived of the reward of his services, and left to pine in penury and wretchedness. It is along this path that you may see helpless children crying for bread, and gray hairs sinking in sorrow to the grave! It is here that no innocence, no merit, no truth, no services, can save the unhappy sectary who does not believe in the creed of those in power. I have been forced upon this subject, and before I leave it, allow me to remark, that without inquiring into the right of the President to make vacancies in office during the recess of the Senate, but admitting the power to exist, yet that it never was given by the constitution to enable the Chief Magistrate to punish the insults, to revenge the wrongs, or to indulge the antipathies of the man. If the discretion exists, I have no hesitation in saying that it is abused when exercised from any other motives than the public good. And when I see the will of a President precipitating from office men of probity, knowledge, and talents, against whom the community has no complaint, I consider it as a wanton and dangerous abuse of power. And when I see men who have been the victims of this abuse of power, I view them as the proper objects of national sympathy and commiseration.

Among the causes of impeachment against the judges, is their attempt to force the sovereignties of the States to bow before them. We have heard them called an ambitious body politic; and the fact I allude to has been considered as full proof of the inordinate ambition of the body.

Allow me to say, sir, the gentleman knows too much not to know that the judges are not a body politic. He supposed, perhaps, there was an odium attached to the appellation, which it might serve his purposes to connect with the judges. But, sir, how do you derive any evidence of the ambition of the judges from their decision that the States under our Federal compact were compellable to do justice? Can it be shown, or even said, that the judgment of the court was a false construction of the constitution? The policy of later times on this point has altered the constitution, and, in my opinion, has obliterated its fairest features. I am taught by my principles that no power ought to be superior to justice. It is not that I wish to see the States humbled in dust and ashes; it is not that I wish to see the pride of any man flattered by their degradation; but it is that I wish to see the great and the small, the sovereign and the subject, bow at the altar of justice,

H. OF R.]

Judiciary System.

[FEBRUARY, 1802 and submit to those obligations from which the nected with this subject, such an attempt wa Deity himself is not exempt. What was the never made by the judges. They have held effect of this provision in the constitution? It generally, that the Constitution of the United prevented the States being the judges in their States was predicated upon an existing commun own cause, and deprived them of the power of law. Of the soundness of that opinion, I never denying justice. Is there a principle of ethics had a doubt. I should scarcely go too far, were more clear than that a man ought not to be a I to say, that, stripped of the common law, judge in his own cause, and is not the principle there would be neither constitution nor Govequally strong when applied not to one man but ernment. The constitution is unintellige to a collective body? It was the happiness of without reference to the common law. And our situation which enabled us to force the were we to go into our courts of justice with greatest State to submit to the yoke of justice, the mere statutes of the United States, not i and it would have been the glory of the coun- step could be taken, not even a contempt could try in the remotest times, if the principle in the be punished. Those statutes prescribe no forms constitution had been maintained. What had of pleadings; they contain no principles of evithe States to dread? Could they fear injustice dence; they furnish no rule of property. If when opposed to a feeble individual? Has a the common law does not exist in most cases, great man reason to fear from a poor one? And there is no law but the will of the judge. could a potent State be alarmed by the unfounded claim of a single person? For my part I have always thought that an independent tribunal ought to be provided to judge on the claims against this Government. The power ought not to be in our own hands. We are not impartial, and are therefore liable, without our knowledge, to do wrong. I never could see why the whole community should not be bound by as strong an obligation to do justice to an individual, as one man is bound to do it to another.

In England the subject has a better chance for justice against the Sovereign than in this country a citizen has against a State. The Crown is never its own arbiter, and they who sit in judgment have no interest in the event of their decision.

The judges, sir, have been criminated for their conduct in relation to the Sedition act, and have been charged with searching for victims who were sacrificed under it. The charge is easily made, but has the gentleman the means of supporting it? It was the evident design of the gentleman to attach the odium of the Sedition law to the Judiciary; on this score the Judges are surely innocent. They did not pass the act; the Legislature made the law, and they were obliged by their oaths to execute it. The judges decided the law to be constitutional, and I am not now going to agitate the question. I did hope, when the law passed, that its effect would be useful. It did not touch the freedom of speech, and was designed only to restrain the enormous abuses of the press. It went no further than to punish malicious falsehoods, published with the wicked intention of destroying the Government. No innocent man ever did or could have suffered under the law. No punishment could be inflicted till a jury was satisfied that a publication was false, and that the party charged, knowing it to be false, had published it with an evil design.

I have never contended that the whole of the common law attached to the constitution, but only such parts as were & nsonant to the nature and spirit of our Government. We have nothing to do with the law of the Ecclesiastical Es tablishment, nor with any principle of monarchical tendency. What belongs to us, and what is unsuitable, is a question for the sound discre tion of the judges. The principle is analogous to one which is found in the writings of all ju rists and commentators. When a colony is planted, it is established subject to such parts of the law of the mother country as are appli cable to its situation. When our forefathers colonized the wilderness of America, they brought with them the common law of Eng land. They claimed it as their birthright, and they left it as the most valuable inheritance to their children. Let me say, that this same common law, now so much despised and vilified, is the cradle of the rights and liberties which we now enjoy. It is to the common law we owe our distinction from the colonists of France, of Portugal, and of Spain. How long is it since we have discovered the malignant qualities which are now ascribed to this law? Is there a State in the Union which has not adopted it, and in which it is not in force? Why is it refused to the Federal Constitution! Upon the same principle that every power is denied which tends to invigorate the Govern ment. Without this law the constitution becomes, what perhaps many gentlemen wish to see it, a dead letter.

For ten years it has been the doctrine of our courts, that the common law was in force, and yet can gentlemen say, that there has been a victim who has suffered under it? Many have experienced its protection, none can complain of its oppression.

In order to demonstrate the aspiring ambition of this body politic, the Judiciary, the honora ble gentleman stated with much emphasis and The misconduct of the judges, however, on feeling that the judges had been hardy enough this subject, has been considered by the gentle- to send their mandate into the Executive cabi man the more aggravated, by an attempt to ex-net. Was the gentleman, sir, acquainted with tend the principles of the Sedition act, by an the fact when he made this statement? It dif adoption of those of the common law. Con-fers essentially from what I know I have heard

[ocr errors]

FEBRUARY, 1802.]

Judiciary System.

[H. OF R.

upon the subject. I shall be allowed to state | judge of the Supreme Court and the district the fact. judge. This was the chief court of business both of a civil and criminal nature.

In each district a court was established for affairs of revenue, and of admiralty and maritime jurisdiction. It is not necessary for the purposes of the present argument to give a more extensive outline of the former plan of our Judiciary. We discover that the judges of the Supreme Court, in consequence of their composing a partf the circuit courts, were

Several commissions had been made out by the late Administration for justices of the peace of this Territory. The commissions were complete; they were signed and sealed, and left with the clerks of the office of State to be handed to the persons appointed. The new Administration found them on the Clerk's table, and thought proper to withhold them. These officers are not dependent on the will of the President. The persons named in the commis-obliged to travel from one extremity to the sions considered that their appointments were complete, and that the detention of their commissions was a wrong, and not justified by the legitimate authority of the Executive. They applied to the Supreme Court for a rule upon the Secretary of State, to show cause why a mandamus should not issue, commanding him to deliver up the commissions. Let me ask, sir, what could the judges do? The rule to show cause was a matter of course upon a new point, at least doubtful. To have denied it, would have been to shut the doors of justice against the parties. It concludes nothing, neither the jurisdiction nor the regularity of the act. The judges did their duty; they gave an honorable proof of their independence. They listened to the complaint of an individual against your President, and have shown themselves disposed to grant redress against the greatest man in the Government. If a wrong has been committed, and the constitution authorizes their interference, will gentlemen say that the Secretary of State, or even the President, is not subject to law? And if they violate the law, where can we apply for redress but to our courts of justice? But, sir, it is not true that the judges issued their mandate to the Executive; they have only called upon the Secretary of State to show them that what he has done is right. It is but an incipient proceeding which decides nothing.

To show the inexpediency of the present bill, I shall endeavor to prove the expediency of the judicial law of the last session. In doing this it will be necessary to take a view of the leading features of the pre-existing system, to inquire into its defects, and to examine how far the evils complained of were remedied by the provisions of the late act. It is not my intention to enter into the details of the former system; it can be necessary only to state so much as will distinctly show its defects.

There existed, sir, a Supreme Court, having original cognizance in a few cases, but principally a court of appellate jurisdiction. This was the great national court of dernier resort. Before this tribunal, questions of unlimited magnitude and consequence, both of a civil and political nature, received their final decision; and I may be allowed to call it the national crucible of justice, in which the judgments of inferior courts were to be reduced to their elements and cleansed from every impurity. There was a Circuit Court, composed in each district of a

other of this extensive country. In order to be in the court-house two months in the year they were forced to be upon the road six. The Supreme Court being the court of last resort, having final jurisdiction over questions of incalculable importance, ought certainly to be filled with men not only of probity, but of great talents, learning, patience, and experience. The union of these qualities is rarely, very rarely found in men who have not passed the meridian of life. My Lord Coke tells us no man is fit to be a judge until he has numbered the lucubrations of twenty years. Men of studious habits are seldom men of strong bodies. In the course of things it could not be expected that men fit to be judges of your Supreme Courts would be men capable of traversing the mountains and wildernesses of this extensive country? It was an essential and great defect in this court, that it required in men the combination of qualities, which it is a phenomenon to find united. It required that they should possess the learning and experience of years and the strength and activity of youth. I may say further, Mr. Chairman, that this court, from its constitution, tended to deterioration and not to improvement. Your judges, instead of being in their closets and increasing by reflection and study their stock of wisdom and knowledge, had not even the means of repairing the ordinary waste of time. Instead of becoming more learned and more capable, they would gradually lose the fruits of their former industry. Let me ask if this was not a vicious construction of a court of the highest authority and greatest importance in the nation? In a court from which no one had an appeal and to whom it belonged to establish the leading principles of national jurisprudence?

In the constitution of this court, as a court of last resort, there was another essential defect. The appeals to this court are from the circuit courts. The circuit court consists of the district judge and a judge of the Supreme Court. In cases where the district judge is interested, where he has been counsel, and where he has decided in the court below, the judge of the Supreme Court alone composes the circuit court. What, then, is substantially the nature of this appellate jurisdiction? In truth and practice, the appeal is from a member of a court to the body of the same court. The circuit courts are but emanations of the Supreme Court. Cast your eyes upon the Supreme Court; you see it disappear, and its members afterwards arising

H. OF R.]

Judiciary System.

[FEBRUARY, 1800

in the shape of circuit judges. Behold the cir- would say, if it were not paradoxical, that the cuit judges; they vanish, and immediately you very existence of a court of appeals ought to de perceive the form of the Supreme Court appear-stroy the occasion for it. The conscience of the ing. There is, sir, a magic in this arrangement judge, sir, will no doubt be a great check upa which is not friendly to justice. When the Su-him in the unbounded field of discretion crested preme Court assembles, appeals come from the various circuits of the United States. There are appeals from the decisions of each judge. The judgments of each member pass in succession under the revision of the whole body. Will not a judge, while he is examining the sentence of a brother to-day, remember that that brother will sit in judgment upon his proceedings to-morrow? Are the members of a court thus constituted, free from all motive, exempt from all bias, which could even remotely influence opinion on the point of strict right? and yet let me ask emphatically, whether this court, being the court of final resort, should not be so constituted that the world should believe and every suitor be satisfied, that in weighing the justice of a cause, nothing entered the scales but its true merits?

Your Supreme Court, sir, I have never considered as any thing more than the judges of assize sitting in bank. It is a system with which perhaps I should find no fault, if the judges sitting in bank did not exercise a final jurisdiction. Political institutions should be so calculated as not to depend upon the virtues, but to guard against the vices and weaknesses of men. It is possible that a judge of the Supreme Court would not be influenced by the esprit du corps, that he would neither be gratified by the affirmance, nor mortified by the reversal of his opinions; but this, sir, is estimating the strength and purity of human nature upon a possible, but not on its ordinary scale.

by the uncertainty of law; but I should, in gaeral cases, more rely upon the effect produced by his knowledge, that an inadvertent or de signed abuse of power was liable to be cor rected by a superior tribunal. A court of appellate jurisdiction, organized upon sound principles, should exist, though few causes arose for their decision; for it is surely better to have a court and no causes, than to have causes and no court. I now proceed, sir, to consider the de fects which are plainly discernible, or which have been discovered by practice in the constitution of the circuit courts. These courts, from information which I have received, I apprehend were originally constructed upon a fallacious principle. I have heard it stated that the design of placing the judges of the Supreme Court in the circuit courts, was to establish uniform rules of decision throughout the United States. It was supposed that the presiding judges of the circuit courts, proceeding from the same body, would tend to identify the principles and rules of decision in the several districts. In practice, a contrary effect has been discovered to be produced by the peculiar organization of these courts. In practice we have found not only a want of uniformity of rule between the different districts, but no uniformity of rule in the same district. No doubt there was a uniformity in the decisions of the same judge; but as the same judge seldom sat twice successively in the same district, and sometimes not till after an interval of two or three years, his opinions were forgotI believe, said Mr. B., that in practice the ten or reversed before he returned. The judges formation of the Supreme Court frustrated, in a were not educated in the same school. The great degree, the design of its institution. I be- practice of the courts, the forms of proceeding, lieve that many suitors were discouraged from as well as the rules of property, are extremely seeking a revision of the opinions of the circuit various in the different quarters of the United court, by a deep impression of the difficulties to States. The lawyers of the Eastern, the Midbe surmounted in obtaining the reversal of the dle, and Southern States, are scarcely professors judgment of a court from the brethren of the of the same science. These courts were in a judge who pronounced the judgment. The ben- state of perpetual fluctuation. The successive efit of a court of appeals, well constituted, is terms gave you courts in the same district, as not confined to the mere act of reviewing the different from each other as those of Connectisentence of an inferior court; but is more ex- cut and Virginia. No system of practice could tensively useful by the general operation of the grow up, no certainty of rule could be estabknowledge of its existence upon inferior courts. lished. The seeds sown in one term scarcely The power of uncontrollable decision is of the vegetated before they were trodden under foot. most delicate and dangerous nature. When ex- The condition of a suitor was terrible; the ercised in the courts, it is more formidable than ground was always trembling under his feet. by any other branch of our government. It is The opinion of a former judge was no precedent the Judiciary only which can reach the person, to his successor. Each considered himself bound the property, or life of an individual. The ex- to follow the light of his own understanding. ercise of their power is scattered over separate To exemplify these remarks, I will take the cases, and creates no common cause. The great liberty of stating a case which came under my safety under this power arises from the right of own observation. An application before one appeal. A sense of this right combines the re-judge was made to quash an attachment in faputation of the judge with the justice of the cause. In my opinion, it is a strong proof of the wisdom of a judicial system when few causes are carried into the court of the last resort. I

vor of a subsequent execution creditor; the application was resisted upon two grounds, and the learned judge, to whom the application was first made, expressing his opinion in support of

« PreviousContinue »