Page images


H. Ok R.]

from the electors an equal number of votes, did not prefer liim who was from Virginia, are we to be charged with an immolation of our constitution? Sir, the gentleman from Virginia was not a member of the last Congress, and lest he should not know the history of the transaction to which he alludes, I will give it

The Electors chosen in the different States gave the same number of votes for Thomas Jefferson and Aaron Burr; there being a tie, it devolved, by the direction of the constitution, upon the House of Representatives to make an election. We sincerely believed that Mr. Bunwas the best and the most fit man to be President, and we accordingly voted for him; we continued to vote for him six and thirty times; we were anxious to have him elected, and we deprecated the election of the other candidate; but when we found gentlemen were determined not to have the candidate from New York, and said they would have him from Virginia President, or they would have no President, we, who venerated our constitution too sacredly to do any thing which should hazard the loss of it, yielded. We believed Mr. Jefferson radically and on principle hostile to the National constitution; we believed some of the most important featnrea in it obnoxious to him; we believed him desirous of destroying the independence of our Judiciary; we believed him opposed to the Senate as now organized, and we believed him destitute of that degree of energy necessary to maintain the general liberty of the people of the United States. With these impressions deep upon our minds, we should have been traitors to our country had we voted for the gentleman fron Virginia, as long as there was any prospect eft to ns of elevating the gentleman from New York; but when we found the object of our preference was so obnoxious to gentlemen on the other side, that they would hazard the having of no President rather than have him, wo ceased our opposition.* And this is what the honorable member from Virginia has been pleased to call" pushing forward to immolate the constitution."

I regret, Mr. Chairman, being compelled to mention names and say any thing of a personal nature, but I am obliged to do it in pursuing the gentleman from Virginia, who in his extraordinary course has not only mentioned the names of gentlemen, but ascribed unworthy motives for their conduct. He has said Mr. Read and Mr. Green voted for the law under which they got appointments. Although I have abundant proof that neither of these gentlemen solicited their offices, that they were given spontaneously, and without being expected, yet I will merely answer this observation by mentioning what is very generally known to all gentlemen who have been of late in the councils of the nation; it is, that it was the invariable practice of the former Executive to appoint gentlemen to office

* The detail of the vote on the balloting shows this fact, so creditable to South Carolina.


without previously advising with them. It is well known that under the law gentlemen us now endeavoring to repeal, Mr. Jay was appointed Chief Justice, and about the same rim* several gentlemen in this House were appoked to some of the most honorable stations isder our Government; the Executive's intention, it is well known, had not been previously notified to them; it is well known they all demised accepting the places proffered to them. Permit me, sir, to give a brief history of the as of Mr. Green, on which the gentleman frco Virginia has dwelt so much.

The district judge in Rhode Island was a> pointed circuit judge, and Mr. Green was appointed district judge. On the fourth day o! March, Mr. Green took his seat in the Senate; the friends of the Administration objected to his keeping it; they said he was a judge, as appeared by the journals of the Senate: the? here made a complete recognition of his appointment as judge, and he vacated his seal After getting home he received his eommncn, in which the blanks had been filled up with it words circuit judge, instead of district jndfe. Mr. Green enclosed his commission to the Eiscntive, in a letter most profoundly respcctM and requested the errors of the clerk in the Be partment of State might be corrected, and b commission made to conform to the appointment, as recorded on the Senatorial joanBL To this letter, which was in highly respectrol terms, the President would not deign to haw any answer given; he pocketed Mr. Green'" commission, and placed another gentleman b his office. This is a history of the appointment of Mr. Green, and the manner in which the President "corrected the procedure."

Sir, the Judiciary is, in the fabric of the constitution, not a Corinthian pillar, not any ornament added by Congress. It is, sir, the grand Doric column; one of three foundation pillars, formed not by Congress, but by the people themselves; it binds together the abutment, is laid _: the foundation of the late fabric of «r Government, and if you demolish it, the grand arch itself will totter and the whole be endangered. We are asked by the gentleman from Virginia if the people want judges to protect them? Yes, sir, in popular governments constitutional checks are necessary for their preservation; the people want to bo protected against themselves; no man is so absurd as to suppose the people collectedly will consent to the prostration of their liberties; but if they be not shielded by some constitutional checks they will suffer them to be destroyed; to 1* destroyed by demagogues, who filch the confidence of the people by pretending to be their friends; demagogues who, at the time they are soothing and cajoling the people, with bland and captivating speeches, are forging chains for them; demagogues who carry daggers in that hearts, and seductive smiles in their hypocritical faces; who are dooming the people to despotism, when they profess to be exclusively IN

Judiciary System.


Febrctary, 1802.]

friends of the people. Against such designs and artifices were our constitutional checks made to preserve the people of this country. Will gentlemen look hack to the histories of other countries, and then tell us the people here have nothing to apprehend from themselves? Who, sir, proved fatal to the liherties of Rome? The courtier of the people; one who professed to be "the man of the people," who had willed his fortune to the people, and had exposed his will to the public eye; a man who, when a Crown was proffered to him, shrunk from the offer, and affectedly said, it did not come from the people. It was Julius CaBsar who prostrated the liberties of Rome; and yet Cmsar professed to be the friend of Rome, to be in fact the people. Who was it, that, in England, destroyed the Representative Government, and concentrated all its powers in his own hands? One who styled himself the man of the people; ■who was plain, nay studiously negligent in his dress; disdaining to call himself Mister, it was plain unassuming Oliver; Oliver Cromwell, the friend of the people, the protector of the Commonwealth. The gentleman from Virginia says he would rather live under a despot than a Government where the judges are as independent as we would wish them to be. Had I his propensities, I, like him, would fold my arms and look with indifference at this attack upon the constitution. It has been my fortune, Mr. Chairman, to have visited countries governed by despots. Warned by the suffering of the people I have seen there, I am zealous to avoid any tiling which may establish a despotism here. It is because I am a republican in principle and by birth, and because I love a republican form of Government and none other, that I wish to keep our constitution unchanged. Independent judges, at the same time that they are useful to the people, are harmless to them. The judges cannot in)j)Ose taxes; they cannot raise armies; they cannot equip fleets; they cannot enter into foreign alliances: these are powers which are exercised without control by despots; and as the gentleman from Virginia does not hold despots in abhorrence, he and I can never agree in our opinions on Government.

Whether another honorable gentleman from Virginia (Mr. Randolph) has derived all the service from his sling and his stone ho had expected, or whether he feels acqnitted of his promise, and now thinks himself capable of prostrating the Goliath of this House, armed capa-pie with the constitution of his country, I cannot conjecture. Whether he has discovered the skill and the prowess of David, or whether he is likened to him only by the weapons he wars with, it is for the committee to judge; for myself I must say, that his high promises had excited expectations which in me have not been realized, and when the gentleman sat down I was sorry to find my objections to the bill on your table undiminished. I say sorry, for I can lay my hand upon my heart, and in the fulness of sincerity declare, there is nothing I

[H. Of R.

desire more anxiously than to be convinced by gentlemen that this measure is not unconstitutional.

The gentleman has asked whether, if we had created an army of judges, and given them monstrous high salaries, it would not be right to repeal the law ; that if the power exists to repeal any law which might have passed on this subject, it might not now be used? and has been pleased to say, w^ would have created more judges and given them higher salaries, if wo had not wanted nerves; and tells my honorable and learned friend from Delaware that we were restrained by the same feebleness of nerve which induced us at the Presidential election to put blank votes into the ballot box. Sir, my friend from Delaware does want that sort of nerve that some gentlemen now discover. Although he is as brave as he is wise, yet in living without fear ho will live without reproach, and never make himself liable to tho charge of prostrating the constitution of his country; for such a work it is true he has no nerve. The observations of one honorable gentleman from Virginia (Mr. Giles) being now reiterated by another respecting the oourse of conduct we pursued at the Presidential election, shows that time has not abated the resentment of Virginia which we excited by our not voting for the Virginiacandidate. Permit me here to declare, sir, that in reviewing all my public conduct, I can discover no one act of which I am more satisfied than my having put a blank vote into the ballot-box. Much has been said on this subject. My friend from Delaware and myself have been denounced by the jacobins of the country; at their civio feasts, and in their drunken frolics, we have been noticed. European renegadoes, who havo left their ears on the whipping posts of their respective countries, or who have come to this country to save their ears, have endeavored to hang out terrors to ns in the publio prints; nay, , sir, circular letters have been diffused through the country, charging ns with the intention of preventing at one time the election of a President, and at another with the design of defeating the vote of the Electors and making a President by law. This was all a calumny, and as it relates to the South Carolina delegation, I declare they had no intention of defeating the public will; they never heard of any project for making a President by law; they had but one object in view which they pursued steadily as long as there was any prospect of attaining it. The gentleman from Virginia and the gentleman from New York had an equal number of votes; we preferred the latter; we voted for him more than thirty times, but when we found our opponents would not unite with us, and seemed obstinately determined to hazard tho loss of the constitution rather than join us, we ceased to vote; we told them we cannot vote with you, but by ceasing to vote, by using blank votes, we will give effect to your votes; we will not choose, but we will suffer you to choose. Surely, Mr. Chairman, H. Of R.]

Judiciary System.

there was nothing in all this which had any aspect towards defeating the public will. Why 1 did not prefer the gentleman who ultimately ■was preferred, has already been mentioned. This is a subject on which I did not expect to be called upon to explain; but the gentlemen from Virginia have called, and it was necessary to answer. Permit me to state, also, that besides the objections common to my friend from Delaware and myself, there was a strong one which I felt with peculiar force. It resulted from a firm belief that the gentleman in question held opinions respecting a certain description of property in my State, which, should they obtain generally, would endanger it, and indeed lessen the value of every other.* Following the example set by his colleague, the gentleman from Virginia has bestowed much censure on the past Administration, and made it a serious charge against them, having appointed under this law a gentleman of Maryland, who he says was not with us formerly, but unfurled his standard in the service of his King, and fought against his countrymen, whom he then deemed rebels. I did not expect, Mr. Chairman, to hear this observation from one of the friends of the Executive. Since the fourth of March last, I thought philosophy had thrown her mantle over all that had passed; that sins were to be forgotten and forgiven, and to prove the sincerity of this forgiving spirit, sinners were to be distinguished by Executive favors. One would have thought so in reviewing Executive conduct; where persons had been imprisoned and fined under our laws, they we know were released; where fines had actually been paid, the officers of Government had been ordered to return them, and not only tories had been appointed to office, but old tones, rank old tories, who had been banished. The present collector of Philadelphia, for the internal revenue, has been appointed since the fourth of March last, and although he never, like the gentleman alluded to, shivered lauces in the service of his King, yet he was actively employed in the more safe service of giving information to the British Generals, and marching before Sir William Howe, decorated with laurels, conducted him into the metropolis of his native State. Sir, there are many instances of this kind. Have gentlemen forgotten the young Englishman who was so busily employed here last winter during the Presidential election, that in seeing him one would really have supposed him not only a member of this House, but, like him of Tennessee, holding an entire vote at his command? This youngster was sent out hero by some merchants in England to collect debts due to them in this country, and his father, whose tory principles carried him from America early in the Revolution, is now subsisting on a royal pension; and this young

• This is tho first authentic declaration that Mr. Jefferson's opinion on slavery was an obstacle to his receiving the

Sooth Carolina vote.

[march, 1802.

man has been appointed our Consul at London, and the former consul, a native and stanch American, whose conduct had been approved by merchants generally, has been turned out to create a vacancy. The gentleman from Vuxinia has repeated the observation of his colleague, that the people are capable of taking care of their own rights, and do not want a corps of judges to protect them. Human nature a the same every where, and man is precisely the same sort of being in the New World that he i» in the Old. The citizens of other Republics were as wise and valiant and far more powerful than we are. The gentleman from Virginia knows fidl well, that wherever the Roman standard was unfurled, its motto, "Senatui ?> pulusque Romani" proclaimed to a conquered world that they were governed by the Senate and the people of Rome. But now, sir, the Roman lazzaroni, who crouching at the gatesof his Prince's palaces, begs the offals of his kitchen, would never know that his ancestors had been free, nor that the people had counted for any thing in Rome, or that Rome ever had her Senate; did he not read it on the broken friezes and broken columns of the ruined temples, whose fragments now lie scattered over the Roman forum!

Tuesday, March 2.

Mr. Dana.—After this vindication of meritorious men who have been removed from office, I will now attend more particularly to some observations of the gentleman from Virginia. He has spoken of the judicial act of the 18th of February, 1801, as if the passage of it had been attended with improper circumstances, and thence has attempted to deduce the inference that it ought to be repealed. He read part of tho journal of the last session, and charged certain members of the House with having been engaged in opposing tho public will at the time when the act was approved. The journal shows, that oa the 18th of February, eighteen hundred and on*, the representatives, voting by States, proceeded to the twenty-ninth ballot for President, and the result was the same as had taken place before; the votes of eight States given for Thomas Jefferson; the votes of six States for Aaron Burr; and the votes of two States divided. Much has been said on this topic, which has at length been brought forward as a public charge by the gentleman from Virginia. It is no* time that it should be examined.

According to the principles of our Government, the public will, when explicitly ascertained by an authentic act, is the law of the land, and must be obeyed. Of this there can be no doubt; it is beyond all question. Bot this public will is not merely the will of p>rt of the community, a section of the people; it is the will of the great body of American citizens. The highest and most solemn expression of the public will in this country is the Consatution of the United States. This was agreed to by the General Convention; was tr.'Uismitw March, 1802.]

Judiciary System.


to the Legislatures of the several States by the unanimous resolution of Congress under the Confederation; was recommended by all those legislatures, when they passed laws for submitting it to conventions for their ratification, and was finally ratified by the conventions of all the States in the Union. It was thus established lay the general consent. In this we should acknowledge the high authority of the public will.

There is, however, a misfortune which attends the argumentation of some gentlemen. They substitute a part for the whole; and ■would confound the will of a certain portion of the people, however vaguely expressed, with the will of the whole publio body as explicitly manifested by an authentic act.

What manifestation was there of the public ■will relative to the late election of a President of the United States? The only authentic evidence of the public will on this subject proved, that Thomas Jefferson, of Virginia, and Aaron Burr, of New York, were equally the objects of approbation. The majority of the electors had given them an equal number of votes. What then was the difference of right between them? Was it, that one of the candidates was a Virginian? Was it that the members of Congress were assembled on the banks of the Potomac, with Virginia in view on the other side? Mnst it be acknowledged as the prerogative of that State to impose a Chief Magistrate on the Union? Or was thero a difference of right, because Virginia, with its extent and population, could make more clamor than any other State? The noise of so great a State may sometimes seem loud enough for the voice of the people of the United States. And are they, therefore, in this House to be confounded with each other? If so, the observations about the public will, of which we have lately heard so much from a certain quarter, must be understood to mean the will of Virginia; and we may thus judge of the argumentation when gentlemen from that State are speaking of the respect due to the public will.

Two persons were presented, in constitutional form, to the House of Representatives, as being equally candidates for the office of President: one from Virginia and the other from New York. When they were so presented, the choice between the two candidates was devolved on the Representatives, by the Constitution of the United States. After maturely considering the question, it was for them, as ultimate electors, to vote as they judged to be most for the public welfare. They voted by States, as required by the constitution. And are gentlemen to be here accused for exercising the constitutional right of election according to the conviction of their own judgments? When called upon, under the constitution, to elect one of the two candidates, were they not bound, by the nature of their duty, to give their votes according as the one or the other was by them judged to be more or less preferable? Upon what principle can gentlemen be

[H. Of R

accused of hostility to the interest of the people, because they did not think proper to elect the candidate from Virginia? Are our affairs already reduced to such a situation that it is to be charged as a public offence, if any member of this House has failed to vote for a Virginian to be the President of the United States?

It was the constitutional right of members of this House, in deciding between the two candidates, to give their ballots for the one whom they believed to be superior in practical capacity for administering the Government—one whom they believed to be not hostile to the commercial interests of the country, and not disposed to subject the Union to the domination of a particular State, whatever might be its lordly pretensions in consequence of extent of territory or antiquity of dominion.

As the gentleman from Virginia has thought proper to speak of events which took place about the time of passing the act in question, allow me, sir, to mention one circumstance, of which he has said nothing. The art, as finally enrolled, was signed by the Speaker of the House of Representatives after the balloting for a President had commenced; and the Clerk carried it to the other House for the signature of their President. The candidate from Virginia was then in the chair of the Senate. The Clerk of this House, on first presenting himself, as was customary, at the door of the Senate Chamber, was not admitted. The situation came to the knowledge of a Senator, and was communicated to the Senate. After the sense of that body was found to be for his admission, the door was opened, and the Clerk was admitted to deliver his message, and present the enrolled bill for signature. It was then signed by the President of the Senate.

What should be thought of this, as taken in connection with the fate of the act and pendency of the Presidential election? Was it a circumstance which must ever be remembered with mortification, and which therefore will never be forgiven?

To give a further color to the suggestion that the passage of the act was attended with improper circumstances, the attempt has been made to impress an idea that it was adopted without mature deliberation, and hurried through its different stages in a reprehensible manner. If we are not willing to be misled by pretext, let ns examine what was the fact.

A recurrence to the journals of the House will prove that the subject of the Judicial Establishment was recommended by the President of the United States to the attention of Congress at two successive sessions. In his communication at the opening of the first session of the sixth Congress, he recommeuded the subject in the following terms .•

"To give due effect to the civil administration of Government, and to ensure a just execution of the laws, a revision and amendment of the Judiciary system is indispensably necessary. In this extensive country it cannot but happen that numerous quesH. Of R]

Judiciary System.

tions respecting the interpretation of the laws and the rights and duties of officers and citizens must arise. On the one hand, the laws should be executed; on the other, individuals should be guarded from oppression. Neither of these objects is sufficiently assured under the present organization of the Judicial Department I therefore earnestly recommend the subject to your serious consideration."

In the House of Representatives, this part of the President's Speech was referred to a select committee. They reported a bill which contained a variety of provisions for amending the system. The bill was referred to a Committee of the Whole, in which it was discussed several days, and was afterwards recommitted to the same gentlemen who had reported it. As it was printed for the use of the members, and the subject was extensively interesting to the community, it was judged proper to defer a final decision until another session, and in the mean time gentlemen might have an opportunity to acquire information that would assist them to form a more satisfactory judgment.

At the second session of the sixth Congress, the subject was again recommended by the President. These are his words:

"It is, in every point of view, of such primary importance to carry the laws into prompt and faithful execution, and to render that part of the administration of justice which the constitution and laws devolve on the Federal courts, as convenient to the people as may consist with their present circumstances, that I cannot omit once more to recommend to your serious consideration the Judiciary system of the United States. Xo subject is more interesting than this to the public happiness; and to none can those improvements which may have been suggested by experience be more beneficially applied."

On this recommendation a select committee was appointed. That committee reported a bill to provide for the more convenient organization of the courts of the United States. The bill underwent a long discussion and a variety of amendments. It was finally passed in the Houso of Representatives by a majority of 51 to 43; and in the Senate by a majority of 16 to 11. After knowing these facts, will gentlemen have the hardihood to call this a hasty measure?

Compare the whole proceedings with what took place respecting a former act. Gentlemen have spoken of the general power of Congress to repeal acts passed by their predecessors. Are they prepared to repeal the act to which I now refer? It is the act relative to the temporary und permanent seat of Government, passed in July, 1790. That act was carried in the Senate by a majority of 14 to 12. In the House of Representatives, a Committee of the Whole agreed to it as it came from the Senate. Twelve different amendments were proposed in the House; the yeas and nays were taken on each of them, and every amendment was rejected—all in one day. A motion was then made for the third reading of the bill on the Monday following; the motion was negatived. It was moved that the third reading should be

[march, 1901

on the next day; this was negatived. The yes; and nays were taken twelve times during tie sitting. A motion was made to adjourn; tfc» was negatived. The general rule of the Haa* being against reading a bill twice on the sasn day without special order, a motion f»r the reading the bill the third time was made on tfe part of its advocates, and carried. On takbs the yeas and nays, for the thirteenth time c one "day, the bill passed by a majority of 32 :o 29. Mark the smallness of the majority in both Houses; the utter rejection of every amendment in the House of Representatives: 4» hurried manner in which it was forced on to the final question. Recollect other considerations relative to the passage of that act, asd then judge whether it was not attended viti circumstances signally improper. If matters of this kind constitute a sufficient cause for gectlemen to repeal any act passed by their predecessors, why should we remain here in par. suanco of this act? Will any gentleman say h is for our personal convenience that the seat of Government is now at this place? Is it u present for the public convenience? Is it teaexpensive for individuals, or for the pubBc, than it would be in some of yonr coiiimereUl cities? Have yoi here the opportunities fcf valuable information which might be bad elsewhere? What, then, should detain us, if it be not a regard to stability and consistency in public proceedings, combined with a regard to the expectations of respectable persons seriously interested in the question? But if you may repeal the act organizing the Judicial system, what principle is there that ought to confine the Government to the place in which we are now assembled? Repeal this act, sis is proposed by the bill on your table, and yon shake the principle of public stability and consistency. Repeal this act, and there can be no principle of constitutional obligation, none of political honor, or legal right, to detain you here.

Wednesday, March 8. Mr. Lowttdes moved that the further consideration of the bill he postponed until the first Monday in December next; on which a debate of considerable length ensued; when, the question being taken thereupon, it passed in the negative—yeas 82, nays 59.

And, after debate thereon, the main question was taken that the said bill do pass, and resolved in the affirmative—yeas 59, nays 32, ia follows:

Yeas.—Willis Alston, John Archer, John Bacon, Theodoras Bailey, Phanuel Bishop, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, Thomas T. Davis, John Dawson, William Dickson, Lucas Elmendorph, Ebenezer Elmer, John Fowler, William B. Giles, Edwia Gray, Andrew Gregg, Joseph Heister, William Helms, Wm. Hoge, James Holland, David Holmes, George Jackson, Charles Johnson, William Jones, Michsel Loib, John Milledge, Samuel L. Mitchill, Thomai


« PreviousContinue »