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Kebrcart, 1802.] Judiciary System. [H. OF R. Judiciary System.
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 iB 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 le 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, "11, 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 » 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 tilings 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 cliunor. 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 lie 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 1 cannot find any authority given them in the constitution to do it, and I suppose it is not an inherent right. Without protending 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. Ho even told us, that the constitution was a i dead letter without it. I do not believe this H. or R.]
was the opinion of the convention that formed it. nnd hy on 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 Supremo 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 tho 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 bo 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, to 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 snpport. He has told us that we paid millions for on 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; 6t the House is, and has been, too independent fc this; to think otherwise, would be depsc to my country. Sir, I do not believe the Ktleman from Delaware himself, with si -■ talents, can wield those with whom he gena^; votes, at his will and pleasure.
Much has been said about the mama i which the late law was passed, and the porf» for which it was done. I hope I shall be rsdoned for saying nothing on this subject; ewer, if not too much has already been said on it.- B: can I conceive that it has any thing to do wi the question.
The true question is, were there courts eeccz Under the old system, to do the business of tk nation? In my opinion there were. We hs? 'complaints that suits multiplied, or that hugM? was generally delayed; and when gentlest talk about Federal courts to do the basii)e»cf the people, they seem to forget that there n State courts, and that the State courts bst; done, and will continue to do almost the wfc> J business of the people in every part of tit Union; that but very few suits can be broa?5 into the Federal courts, compared with tto* that may be brought into the State conn* They will be convinced that under the old tern, we had federal judges and courts enoucbesides, sir, I believe each State know* hs what courts they need, and if they have t« enough, they have the power and can wi; make more. I am sure the old system answer^ every purpose for the State I live in as wdl * the new.
He also told us, that we attempt to do isdirectly what we cannot do directly. rdoi;: know of any such attempt. The bill is cerUicy a direct attempt to repeal the act of thete session; but I have seen things done indirect* which I believe could not have been done fr rectly; such was the army of volunteer?: I surely was an indirect attempt to officer and possession of the militia. Tho same gentleress challenges us to say there are any in the Fiu.'^J States who prefer monarchy. In answer to this, I say, there were such during the American revolutionary war, and I have not beard that they had changed their opinion; but as be has told us there were jacobins in the country it is not unfair to Bnppose there are monarchic they being the two extremes. We are a!*1 charged with a design to destroy the whole Judiciary. If there is such a design, this is first time I ever heard it; no attempt of the kind is yet made. But what is the fact? »* only propose to repeal the act of the last season, and restore the Judiciary exactly to what it was for twelve years, and this is called totroyftf 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 sach declamation? Why do we hear of such thins? on this floor? It is for them to tell who use the expressions; to me they are too horrid to thiw Fkbrcapj, 1802.]
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 ns, 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 ease 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 constituL: *n, that at the next election the people would lect those that would repair the injury, and set :t 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 •• trifling an affair, as to be uttered with calniu . 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 1 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 Bavage 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
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cannot all agree in the tenets embraced by each particular sect of our holy religion, because ona 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 slate of things, of the national debt, and all the banks in the United States? If we dp wrong by adopting measures which the publio 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 ns 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.
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."
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Mr. Rutlkdqe.—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 1 have beer, 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. [Ilero 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 npnn p» tlemen from the Southern States to look w£ to this business. If they persevere in frittera? away the honest meaning of the constitution their forced implications, this clause is Kc worth a rush—is a mere dead letter: and vs. without having it in the constitution. I fair* the members from South Carolina would nercr have signed tins instrument, nor would the«svention of that State have adopted it. ¥j friend from Delaware, standing on this vantts ground, says to our opponents, Here I thro* the gauntlet, and demand of you how you wiO extricate yourselves, torn the dilemma in- which you will be placed, should Congress pas? asy 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 a facto law, they shall not tax articles exported from any State, and has other prohibitory reflations. Well, sir, suppose Congress should pass an ex po»t facto law, or legislate upon acr other subject which is prohibited to them, where are the people of this country to si 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 • this subject, as they relate to the constitutionality of it, are in unison with the wisest and best men iu 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 Soutli Carolina Legislature, that as tho constitution declares, " the judges shall hold their offices during good behavior," the office could not be taken from them, the measure wa.< 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 resign^ aTM another died. The functions of the court of consequence became suspended. All the busing pending in it was put to sleep. The paw"3 prints were immediately filled with projects far destroying the court, which had been denounced as unnecessary. As the citizens of the wester11 part of the State had not participated much m
tlie 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 daring 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 largo 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 Jcudiiaries, 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 aro 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 ft to notice the law which laid a direct tax, and s»°? 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, wo 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
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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 meant Df national defence as far beyond the reach of contingency as possible wo imposed the direct tax. We knew this law would prove arms and ammunition to those who were inventing all tho 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 wo 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, savs the gentleman, it was to have been calculated what would be the result of tho 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 npon 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 tho conduct of the late Congress when they were occupied in the election of the President of the United States, and he has said we wero then "pushing forward to immolate the constitution of our country." What does all this mean, sir? What, sir I because we, of the two gentlemen who had