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FEBRUARY, 1802.]
Judiciary System.

(H. OF R. It will be noticed that Congress are authorized | him in political opinion; and whenever he had to establish post-offices and post-roads for the done it, he had had cause to repent of it. Was general and equal dissemination of information that opinion then correct, and now false, in the throughout the United States; and is it not estimation of gentlemen? For my part, I did known that no act was passed on that subject not think the opinion correct when I first heard before the assumption of the State debts, and it, nor have I since been convinced of its prothat there was only one post-road which run priety. Indeed, before I can think so, I must near the sea-coast? Of course, the people in the have a worse opinion of human nature than I interior country had no communication with now have, and think of men as they pretend to those in the Government, nor had they any think of us, which God forbid! But, taking knowledge of what was doing. But the rich things as they are, what course, on this point, speculator, who was on the spot, by going into is most fair and tolerant? The community, as the country where the people were ignorant of well as this House, is divided into two parties. what had been done, purchased up their certifi- It seems to me, that all the most tolerant could cates—the only reward they had received for wish, would be an equal division of the offices their toil and wounds-at about one-tenth of between the parties, and thus you might fix a their value. And it is possible that many of reciprocal check on each other. But I ask genthese purchases may have been made with pub- tlemen to be candid, and tell me whether they lic money. And it is clear to me, that if a pro- are at this time equally divided? Sir, they per number of post-roads had been established, know that there are many more persons who before the act was passed for assuming the now fill offices who agree with them in opinion State debts, the war-worn soldier would not than agree with us. As to myself, I care not have lost half as much as he did by the specu- who fill offices, provided they act honestly and lation on his certificates.

faithfully in them. I can with truth say, 80 The gentleman from Delaware says we drove little party attachment have I on this head, that them to the direct tax. This is the first time I I never solicited to have any man discharged ever heard of a minority driving a majority. Is from office. Knowing that a large majority of such a thing possible? Did we drive them to those now in office agree with those gentlemen the measures that made such immense expendi- in political opinion, I am at a loss for the cause tures of the public money necessary ? No, sir, of all this clamor. They have no doubt some we opposed those measures as useless; and the reason for it, which has not been declared. The true ground of the direct tax is this : the public fact is, they have a majority of the offices, and money was expended; public credit was stretch- a majority of the people are with us. I am coned, until, to preserve it, it became necessary to tented it should be so. provide for paying, and the means adopted. The gentleman has dwelt much on a subject were the direct tax.

which, from my habits of life, I am not enabled The same gentleman tells us there is nothing fully to notice; I must decide for myself, and, sacred in the eyes of infidels. We know our judging with the small share of information I opponents. The allusion here is too plain not possess, I cannot agree with him. I do not to be understood; and evidently is, that those pretend to understand the subject as well as he who differ with him in opinion are infidels. This does, but certainly he was not so perspicuous is a strong expression; it would have seemed as it might have been expected. I mean, sir, that his love of Americans ought to have pre- his opinion on the common law. He told us vented the use of it. I shall make no answer that the judges only adopted such parts of the to it, except to remind him that in a book, the common law of England as suited the people, truth of which he will not deny, he will find and that he apprehended no danger from this. these words, “ Judge not, lest ye be judged." Sir, I do apprehend danger from this, because I He also said that gentlemen might look to the cannot find any authority given them in the Executive for victims, and not to the judges. I constitution to do it, and I suppose it is not an Notwithstanding this remark, and without con- | inherent right. Without pretending to know demning or approving the appointments made the extent of this common law, it has always by the late President, I hope I may be permit appeared to me to be extremely dangerous to ted to express my own ideas, without being con- the rights of the people, for any person not sidered as under the influence of the present elected by them, to undertake to exercise the President. Prior to the fourth of last March, power of legislating for them, and this adopting all, or nearly all, the offices in the gift of the the common law is only another name for legisExecutive, were in the hands of men of one po- lation. He has also told us, that the States had litical opinion, On that day, the people changed adopted it. If the States adopted it, it became the President, because they did not like meas- a law of the State, and not of the United States; ures that had been pursued. But, to those who but the adoption of it by the individual States, have attended to the debates in this House, it could not give the judges a right to adopt it for must appear strange, indeed, to hear gentlemen the United States. The judges have no powers complain of the President having in office those but what are given by the constitution or by Who agree with him in opinion, when we were statute, and this power cannot be found in either. formerly told that the President would do wrong He even told us, that the constitution was a it be appointed to office those who differed from dead letter without it. I do not believe this

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was the opinion of the convention that formed it. and by an examination of the debates of the State conventions that ratified it, it will not be found to be their opinion; nor is it, I believe, the opinion of all the Judges of the 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 the judges agree with him in opinion, I believe the people agree with me. He, like my colleague, did not pretend to say that the judges under the old system had too much business, but too much riding. The whole burden of the song seems to be riding and salary, salary and riding; you may destroy the office, but the officer must have his salary, and this I suppose without riding. The old system was, in my opinion, equal to every object of justice contemplated by its establishment.

The gentleman has ascribed to us the wish to have the courts viciously formed. Is it possible, that he can have so degrading an idea of the American people, as to suppose they would send men here to legislate on their dearest interests, so base and corrupt, as to wish their courts so formed, that vice and not virtue should prevail in them? I am happy to say that gentleman is the only one who has uttered a sentiment so abhorrent to human nature. He also said, if yon permit the State courts to execute your laws, you would have no constitution in ten years. I have not heard any one express a deBiro that you should have no courts, or that the State courts should execute all your laws; but I do not believe, that if the State courts were to execute your laws, that they would destroy the constitution which they are sworn to support. He has told us that we paid millions for an army which might be useless, and refused thousands to a Judiciary which was useful. As to the army, those who agree with me in sentiment, are as clear of it as it is possible for men to be of any political sin whatever; we always considered them useless, except in a small degree, and voted against them.

But, says he, this is the President's measure; he may prevent it. This is indeed a bold assertion. Are a majority of this House so degraded, so mean, so destitute of honor or morality, as to act at the nod of a President? What the majority may hereafter do, I cannot tell; but I can say, as yet they have done nothing which even the eye of criticism can find fault with. But are we to infer from these charges, that it has heretofore been the practice for the President to give the tone to the majority of the House, and to wield them about as he pleased? I had, before, a better opinion of onr adversaries. I had thought, aud still think, that no

man can wield a majority of this House; tk: the House is, and has been, too independent t r this; to think otherwise, would be degradh; to my country. Sir, I do not believe the getleman from Delaware himself, with all L> talents, can wield those with whom he general; votes, at his will and pleasure.

Much has been said about the manner = which the late law was passed, and the porjv-* for which it was done. I hope I shall be pcdoned for saying nothing on this subject; ewncif not too much has already been said on it; em can I conceive that it has any thing to do win the question.

The true question is, were there conrt3 eww; under the old system, to do the business of tic nation? In my opinion there were. "We had ~ complaints that suits multiplied, or that busses was generally delayed; and when gentleroa talk about Federal courts to do the bosines? tf the people, they seem to forget that there sre State courts, and that the State courts hare done, and will continue to do almost the wbd» business of the people in every part of ti» Union; that but very few suits can be bnjuzhs into the Federal courts, compared with tii<>* that may be brought into the State conra. They will be convinced that under the old srstern, we had federal judges and courts enoop: besides, sir, I believe each State knows be* what courts they need, and if they have enough, they have the power and can es2" make more. I am sure the old system answer^ every purpose for the State I live in as we3 Js the new.

He also told us, that we attempt to do indirectly what we cannot do directly. I do Ik know of any such attempt The bill is certain'" a direct attempt to repeal the act of the lit session; but I have Been things done indirec'-ij which I believe could not have been done directly; such was the army of volunteers: i surely was an indirect attempt to ofiicer and get possession of the militia. The same gentleiKS challenges us to say there are any in the United States who prefer monarchy. In answer ts this, I say, there were such during the American revolutionary war, and I have not beari that they had changed their opinion; but a* he has told us there were jacobins in the country, it is not unfair to suppose there are monarchists; they being the two extremes. "We are *ls> charged with a design to destroy the whole Judiciary. If there is such a design, this is the first time I ever heard it; no attempt of the kind is yet made. But what is the fact f We only propose to repeal the act of the last season, and restore the Judiciary exactly to what it wis for twelve years, and this is called destroying the Judiciary.

To complete the scene, we were told of the sword, of civil discord, and of the sword of brother drawn against brother. Why such declamation? Why do we hear of such things oa this floor? It is for them to tell who use tie expressions; tome they are too horrid to think

Judiciary System.

FEBRUARY, 1802.]
Judiciary System.

[H. OF R. of. Do gentlemen appeal to our fears, rather , cannot all agree in the tenets embraced by each than to our understanding? Are we never to particular sect of our holy religion, because one be clear of these alarms? They have often been is a Calvinist and another a Lutheran, that each tried without producing any effect. Every in- should be employed in plunging the dagger into strument of death is dragged into this question; the heart of the other. But suppose, sir, you sword, bayonet, hatchet, and tomahawk; and agree to divide these States, where is the bounthen we are told that the passing this bill may dary to be? Is it to be a river, or a line of be attended with fatal consequences to the wo-marked trees? Be it which it may, both sides men and children. Can it be possible, sir, that must be fortified, to keep the one from intrudthe gentleman was really serious when he talked ing on the other; both the new governments about an injury to women and children? He will have regular soldiers to guard their fortified also told us, if you pass the bill and it should places, and the people on both sides must be produce a civil war, not only himself but many oppressed with taxes to support these fortificaenlightened citizens would support the judges. tions and soldiers. What would become, in such And have we already come to this, that enlight a state of things, of the national debt, and all ened citizens have determined on their side in the banks in the United States? If we do case of a civil war, and that it is talked of in wrong by adopting measures which the public this assembly with deliberation and coolness? good does not require, the injury cannot be very We certainly were not sent here to talk on such lasting; because at the next election the people topics, but to take care of the affairs of the na- will let us stay at home, and send others who tion, and prevent such evils. In fact, it is our will manage their common concerns more to duty to take care of the nation, and not destroy their satisfaction. And if we feel power and it. Compare this with the conduct of the for- forget right, it is proper that they should withmer minority. I challenge them to show any draw their confidence from us; but let us have thing like it in all their proceedings. When- no civil war; instead of the arguments of bayoever we supposed the constitution violated, did nets, &c., let us rely on such as are drawn from we talk of civil war? No, sir; we depended on truth and reason. elections as the main corner-stone of our safety; Another topic has been introduced, which I and supposed, whatever injury the State ma- very much regret; it is the naming of persons chine might receive from a violation of the con- who have received appointments from the late stituti in, that at the next election the people or the present President. I hope I shall be would lect those that would repair the injury, pardoned for not following this example. And and set it right again; and this, in my opinion, one gentleman is named as having been an imought to be the doctrine of us all; and when we portant member during the election of President differ about constitutional points, and the ques- by the late House of Representatives. It ought tion shall be decided against us, we ought to to be remembered there were others as imporconsider it a temporary evil, remembering that tant as the gentleman named. In talking about the people possess the means of rectifying any the late or the present President, it ought not error that may be committed by us.

to be forgotten that they both signed the DeclaIs the idea of a separation of these States so ration of Independence, that they have both light trifling an affair, as to be uttered with been Ministers in Europe, and both Presidents calmu: , in this deliberate assembly? At the of the United States. Although they may differ very idea I shudder, and it seems to me that in political opinion, as many of us do, is that every man ought to look on such a scene with any reason we should attempt to destroy their horror, and shrink from it with dismay. Yet reputation? Is American character worth nothsome gentlemen appear to be prepared for such ing, that we should thus, in my judgment, iman event, and have determined on their sides in properly, attempt to destroy it on this floor? case it should happen. For my part, sir, I de- | The people of this country will remember that plore such an event too much to make up my British gold could not corrupt nor British power mind on it until it shall really happen, and then dismay these men. I have differed in opinion it must be done with great hesitation indeed. with the former President, but no man ever To my imagination, the idea of disunion con-heard me say, that he was either corrupt or disveys the most painful sensations; how much honest; and sooner than attempt to destroy the more painful then would be the reality! Who fame of those worthies, to whose talents and exshall fix the boundaries of these new empires, ertions we owe our independence, I would ceaso when the fatal separation shall take place? Is to be an American; nor will I undertake to say it to be done with those cruel engines of death that all who differ from me in opinion are disorthat we have heard of, the sword, the bayonet, ganizers and jacobins. and the more savage instruments of tomahawk and hatchet? And is the arm of the brother

THURSDAY, February 25. to plunge them into the breast of brother, and

Judiciary System. citizen to be put in battle array against citizen, The House then went into a committee on to make this separation which would ruin the the bill, sent from the Senate, entitled, “An whole country? And why is all this to be done? act to repeal certain acts respecting the organBecause we cannot all think alike on political ization of the courts of the United States, and topics. As well might it be said, because we for other purposes.

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Mr. Rctledoe.—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 tiling depends upon the fair construction which this article in the constitution respecting the Judiciary is susceptible of, I must again read it. [Here Mr. R. read several clauses of the constitution.] Some of the clauses we see are directory and others prohibitory. Now, sir, I beg to be informed of what avail are your prohibitory clauses, if there be no power to check Congress and the President, from doing what the constitution has prohibited them from doing? Those prohibitory regulations were designed for the safety of the State Governments, and the liberties of the people. But establish what is this day the ministerial doctrine, and your prohibitory clauses are no longer barriers against the ambition or the will of the National Government; it becomes supreme and is without control. In looking over those prohibitory clauses, as the Representative of South Carolina, my eye turns with no inconsiderable degree of jealousy and anxiety to the ninth section of the first article, which declares—[Here Mr. R. read the article respecting migration before the year 1808.]

I know this clause was meant to refer to the importation of Africans only, but there are gentlemen who insist that it has a general reference, and was designed to prohibit our inhibiting migration as well from Europe ns 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

[febbuabt,

to the importation of slaves, I call npoti gtstlemen from the Southern States to lookwd to this business. If tbey persevere in frittenE; away the honest meaning of the eonstitatiocVr their forced implications, this clause is t« worth a rush—is a mere dead letter; and»?. without having it in the constitution. I taor the members from South Carolina would | have signed this instrument, nor would thecoc- | vention of that State have adopted it. Xt' friend from Delaware, standing on this vantaa |! ground, says to our opponents, Here I throw . the gauntlet, and demand of you how yon wi] extricate yourselvet "rom the dilemma u> which I you will be placed, should Congress pass si" such acts as are prohibited by the constitation! The judges are sworn to obey tiie eonstitutML which limits the powers of Congress, and ays, they shall not pass a bill of attainder or a p*facto law, they shall not tax articles export from any State, and has other prohibitory reflations. Well, sir, suppose Congress shooid pass an ex post facto law, or legislate upon nj other subject which is prohibited to tiea. where are the people of this country to seA redress? Who are to decide between tbeconstitution and the acts of Congress? Woo are to pronounce on the laws? Who wul declare whether they be unconstitutional' Gentlemen have not answered this pertinent inquiry. Sr, they cannot answer it satisfactorily to the people of this country. It is a source of much gr»tification to me to know that my sentiments on this subject, ns they relate to the constitutionality of it, are in unison with the wisest and best men in my native State. The Judicial system had proved so inconvenient there, as t» render a new organization of it necessary some years past. There were gentlemen in the Legislature as anxious to send from the bench some of the judges as gentlemen here are to dismiss our federal judges. Personal animosities existed there as well as here, though not to so great an extent; but it was the opinion of a large majority of the South Carolina Legislature, that as the constitution declares, "the judges shall hold their offices during good behavior," the office could not bo taken from them, the measure was abandoned, and the wise and cautious course pursued, which we wish gentlemen here to follow: the system was not abolished, but modified and extended; the judges had new duties assigned to them, and their number was increased, but no judge was deprived of his office. In South Carolina they have a court of chancery, consisting of three chancellors, and the law establishing it requires the presence of two judges to hold a court. During a recess of the Legislature, one of the chancellors resigned and another died. The functions of the court of consequence became suspended. All the basiness pending in it was put to sleep. The public prints were immediately filled with projects for destroying the court, which had been denounced as unnecessary. As the citizens of the western part of the State had not participated much in

Judiciary System.

FEBRUARY, 1802.]
Judiciary System.

[H. OF R. the benefits derived from the court of chancery, | the liberties of every free people, and subvertmany of the most influential of them deemed it ing the Government of every country, saw fit to of little utility. The opposition assured so for- menace us; told us for the preservation of our midable an aspect as to determine the Governor peace and independence we must pay tribute.

(who exercises the power of appointing judges This degrading measure was scornfully rejected during the recess of the Legislature) not to by our Administration ; they said, if we must make any appointment, believing the court fall, we will fall after a struggle; and our citiwould be abolished. When the Legislature met, zens prepared themselves for war with alacrity, an effort was made to abolish the court, but a and regarded every sacrifice as inconsiderable, large majority giving to the constitution the compared with the great sacrifice of our indehonest meaning of its framers, considered the pendence. With this prospect of immediate judges as having a life estate in their offices, war, we should have acted not only unwisely provided they behaved well; and the vacancies on but treacherously, had we trusted for public inthe chancery bench were immediately supplied. come to the revenue derived from trade. Had

That the national Judiciary Establishment is our trade been destroyed, there would have comparatively more costly than are the State | been a complete destitution of revenue, and Jcudiiaries, is far from being the case, I believe. to place the meant of national defence as far It may be so in Virginia, where they have one beyond the reach of contingency as possible we chancellor, with little salary and much business, imposed the direct tax. We knew this law but it is not so in other States. In South Ca- I would prove arms and ammunition to those rolina, we have six judges at common law, at who were inventing all the falsehood credulity six hundred pounds sterling a year each ; three could swallow, and who were busily employed chancellors at five hundred pounds each ; which, in misrepresenting and calumniating the contogether with the salaries and fees of office of duct of the Government. We did suppose they the attorney general, master in chancery, soli- might make this law their artillery to batter citors, clerks, and sheriffs, amount to six thon- down the Administration ; but we were not sand two hundred pounds sterling. And yet, deterred from our honest purposes by this exsir, justice, I believe, is nowhere cheaper than pectation; a change of men, when compared in South Carolina. By the judicious structure with a change of government, weighed with of her judiciary system, the streams of justice our minds as dust does in the balance ; our are diffused over the whole State, and every measures did not aim at popularity, and we man is completely protected in his life, liberty, were just to our country, regardless of party property, and reputation. The courts are al- consequences. At this early period, says the most constantly in session. The judges are gentleman, it was to have been calculated what gentlemen of high talents, integrity, and strict would be the result of the Presidential election. impartiality; and every one who goes into the Sir, those must have been gifted with second court of that State, not only obtains ample jus- sight, they must have been prophets indeed, tice, but obtains it promptly ; this, sir, is what who could have then foretold how the election I call cheap justice. The gentleman from Vir- I would issue; the result was as doubtful as any ginia has seen ft to notice the law which laid event could be, till within a few days of the a direct tax, and san.. it was imposed when we election. It is recollected that every thing deknew the Administration of this Government / pended upon the South Carolina vote; all the was soon to pass from those then in power, and gentlemen in nomination went there with an was resorted to as a means of extending Execu- equal number of votes ; the anxiety displayed tive patronage, and to make provision for the at the time by the gentlemen here from Vire friends of an expiring Administration. Can ginia, proved they then deemed it doubtful how the honorable gentleman be serious in all this? | the election would terminate. Indeed, sir, noDoes he remember when we passed this law? thing could have been more doubtful, and I beIt was in 1798, when I will be bold to say, the lieve it is fully known to the ministerial side of Administration enjoyed the highest degree of this House, that it depended upon one of the popular favor. In no popular Government, gentlemen nominated, who had not the Caroperhaps, was an Administration more popular lina votes, to have obtained them, and produthan was the former Administration, at the ced to the election a different result; but his time this tax was laid. Sir, this law had no correct mind was obnoxious to any intrigue ; it connection with personal or party considera- would not descend to any compromise, and this tions. Like all the measures of the past Ad-honorable man knew that no station could be ministration, it was designed to promote the honorable to him unless honorably obtained. public good. Had we, like our opponents, con- In the very wide range which the gentleman sulted the caprices and prejudices, and not the from Virginia has permitted himself to take, he real interests of our constituents; had we been has been pleased to notice the conduct of the merely attentive to popular favor, we should late Congress when they were occupied in the not have passed this law. At the crisis it was election of the President of the United States, passed, the public good demanded it, and we and he has said we were then “pushing were regardless of every other consideration. forward to immolate the constitution of our A nation that had lighted up the flame of war country." What does all this mean, sir ? What, in every corner of Europe, that was prostrating sir I because we, of the two gentlemen who had

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