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FEBRUARY, 1802.]

Judiciary System.

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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 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.

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 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 II never solicited to have any man discharged 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.

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 clamor. 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 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, 66 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.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 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 if he appointed to office those who differed from

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. He even told us, that the constitution was a dead letter without it. I do not believe this

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Judiciary System.

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Much has been said about the manner which the late law was passed, and the purpos for which it was done. I hope I shall be pe doned for saying nothing on this subject; enoug if not too much has already been said on it; t can I conceive that it has any thing to do with the question.

was the opinion of the convention that formed | man can wield a majority of this House; th it, and by an examination of the debates of the the House is, and has been, too independent 3: State conventions that ratified it, it will not be this; to think otherwise, would be degrade found to be their opinion; nor is it, I believe, to my country. Sir, I do not believe the g the opinion of all the Judges of the Supreme tleman from Delaware himself, with all Court, that the constitution would be a dead talents, can wield those with whom he general"; letter without the common law of England. I votes, at his will and pleasure. 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 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 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 our adversaries. I had thought, and still think, that no

The true question is, were there courts enou under the old system, to do the business of the nation? In my opinion there were. We had te complaints that suits multiplied, or that busines was generally delayed; and when gentlemen talk about Federal courts to do the business of the people, they seem to forget that there State courts, and that the State courts hare done, and will continue to do almost the who business of the people in every part of the Union; that but very few suits can be breng into the Federal courts, compared with the that may be brought into the State courts They will be convinced that under the old ș tem, we had federal judges and courts enough; besides, sir, I believe each State knows best what courts they need, and if they have n enough, they have the power and can eas make more. I am sure the old system answerd every purpose for the State I live in as well the new.

He also told us, that we attempt to do indirectly what we cannot do directly. I do not know of any such attempt. The bill is certain a direct attempt to repeal the act of the last session; but I have seen things done indirectly which I believe could not have been done drectly; such was the army of volunteers; it surely was an indirect attempt to officer and get possession of the militia. The same gentleman challenges us to say there are any in the United States who prefer monarchy. In answer to this, I say, there were such during the Ameri can revolutionary war, and I have not heard that they had changed their opinion; but as 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 also 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? We only propose to repeal the act of the last session, and restore the Judiciary exactly to what it was 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 de clamation? Why do we hear of such things on this floor? It is for them to tell who use the expressions; to me they are too horrid to think

FEBRUARY, 1802.]

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Judiciary System.

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 us, 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 case 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 constitun, that at the next election the people would lect those that would repair the injury, and set it 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.

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cannot all agree in the tenets embraced by each particular sect of our holy religion, because one 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 state of things, of the national debt, and all the banks in the United States? If we do wrong by adopting measures which the public 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 us 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 disor

Is the idea of a separation of these States so light" trifling an affair, as to be uttered with calm 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! 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,ganizers and jacobins. and the more savage 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

THURSDAY, February 25.

Judiciary System.

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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Judiciary System.

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to the importation of slaves. I call upon gatlemen from the Southern States to look wel to this business. If they persevere in frittering away the honest meaning of the constitution by their forced implications, this clanse is not worth a rush-is a mere dead letter; and yet. without having it in the constitution, I know the members from South Carolina would never have signed this instrument, nor would the convention of that State have adopted it. My friend from Delaware, standing on this vantage ground, says to our opponents, Here I throw the gauntlet, and demand of you how you wil extricate yourselves from the dilemma in which you will be placed, should Congress pass any such acts as are prohibited by the constitutionl 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 ez post facto law, they shall not tax articles exported from any State, and has other prohibitory regu lations. Well, sir, suppose Congress should

Mr. RUTLEDGE. 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 I 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 conse-pass an ex post facto law, or legislate upon any quence, that the present intermeddling of Con- other subject which is prohibited to them. gress with the Judicial Department is a down- where are the people of this country to seek right usurpation, and that its effect will be the redress? Who are to decide between the conconcentration of all power in one body, which stitution and the acts of Congress? Who are is the true definition of despotism. As, sir, to pronounce on the laws? Who will declare every thing depends upon the fair construction whether they be unconstitutional? Gentlemen which this article in the constitution respecting have not answered this pertinent inquiry. Sir, the Judiciary is susceptible of, I must again read they cannot answer it satisfactorily to the peo it. [Here Mr. R. read several clauses of the ple of this country. It is a source of much graconstitution.] Some of the clauses we see are tification to me to know that my sentiments on directory and others prohibitory. Now, sir, I this subject, as they relate to the constitutionbeg to be informed of what avail are your pro-ality of it, are in unison with the wisest and hibitory clauses, if there be no power to check best men in my native State. The Judicial sysCongress and the President. from doing what tem had proved so inconvenient there, as to the constitution has prohibited them from do- render a new organization of it necessary some ing? Those prohibitory regulations were de- years past. There were gentlemen in the Lesigned for the safety of the State Governments, gislature as anxious to send from the bench some and the liberties of the people. But establish of the judges as gentlemen here are to dismiss what is this day the ministerial doctrine, and our federal judges. Personal animosities existed your prohibitory clauses are no longer barriers there as well as here, though not to so great an against the ambition or the will of the National extent; but it was the opinion of a large maGovernment; it becomes supreme and is with-jority of the South Carolina Legislature, that as out 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

the constitution declares, "the judges shall hold their offices during good behavior," the office could not be 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 business 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

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the 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 during 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 large 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 Jeudiiaries, 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 sheriff's, 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 are 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 sa 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, we 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 means of national defence as far beyond the reach of contingency as possible we imposed the direct tax. We knew this law would prove arms and ammunition to those who were inventing all the 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 we 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, says the gentleman, it was to have been calculated what would be the result of the 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 upon 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 the conduct of the late Congress when they were occupied in the election of the President of the United States, and he has said we were then "pushing forward to immolate the constitution of our country." What does all this mean, sir? What, sir! because we, of the two gentlemen who had

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