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Judiciary System.

(FEBRUARY, 1812 from the electors an equal number of votes, did / without previously advising with them. It is not prefer him who was from Virginia, are we well known that under the law gentlemen en to be charged with an immolation of our con- now endeavoring to repeal, Mr. Jay was so stitution ? Sir, the gentleman from Virginia pointed Chief Justice, and about the same time was not a member of the last Congress, and several gentlemen in this House were appointlest he should not know the history of the trans-ed to some of the most honorable stations action to which he alludes, I will give it. der our Government, the Executive's intentia,

The Electors chosen in the different States it is well known, had not been previously notigave the same number of votes for Thomas Jef- fied to them; it is well known they all declin. ferson and Aaron Burr ; there being a tie, it ed accepting the places proffered to them. Pedevolved, by the direction of the constitution, mit me, sir, to give a brief history of the cas upon the House of Representatives to make an of Mr. Green, on which the gentleman from election. We sincerely believed that Mr. Burr Virginia has dwelt so much. was the best and the most fit man to be Presi. The district judge in Rhode Island was apdent, and we accordingly voted for him ; we pointed circuit judge, and Mr. Green was apcontinued to vote for him six and thirty times ; 1 pointed district judge. On the fourth day a we were anxious to have him elected, and we March, Mr. Green took his seat in the Senate; deprecated the election of the other candidate ; the friends of the Administration objected to but when we found gentlemen were determin- his keeping it ; they said he was a judge, as aped not to have the candidate from New York, peared by the journals of the Senate; they and said they would have him from Virginia here made a complete recognition of his apPresident, or they would have no President, we, pointment as judge, and he vacated his seat who venerated our constitution too sacredly to After getting home he received his commissid, do any thing which should hazard the loss of it, in which the blanks had been filled up with the yielded. We believed Mr. Jefferson radically words circuit judge, instead of district judge, and on principle hostile to the National con- Mr. Green enclosed his commission to the Ert stitution; we believed some of the most im- cutive, in a letter most profoundly respectful, portant features in it obnoxious to him ; we and requested the errors of the clerk in the Le believed him desirous of destroying the indepartment of State might be corrected, and his pendence of our Judiciary; we believed him commission made to conform to the appointopposed to the Senate as now organized, and we ment, as recorded on the Senatorial journal believed him destitute of that degree of energy To this letter, which was in highly respectful necessary to maintain the general liberty of the terms, the President would not deign to have people of the l'nited States. With these im- any answer given; he pocketed Mr. Green's pressions deep upon our minds, we should have commission, and placed another gentleman is been traitors to our country had we voted for his office. This is a history of the appointthe gentleman from Virginia, as long as there ment of Mr. Green, and the manner in which was any prospect eft to us of elevating the the President “ corrected the procedure." gentleman from New York; but when we Sir, the Judiciary is, in the fabric of the con: found the object of our preference was so ob- stitution, not a Corinthian pillar, not any orna: noxious to gentlemen on the other side, that ment added by Congress. " It is, sir, the grand they would hazard the having of no President Doric column; one of three foundation pillars rather than have him, we ceased our opposi- formed not by Congress, but by the people tion.* And this is what the honorable mem themselves; it binds together the abutment, is ber from Virginia has been pleased to call “ push- / laid the foundation of the late fabric of our ing forward to immolate the constitution," Government, and if you demolish it, the grand

I regret, Mr. Chairman, being compelled to arch itself will totter and the whole be endanmention names and say any thing of a personal gered. We are asked by the gentleman from nature, but I am obliged to do it in pursuing the Virginia if the people want judges to protect gentleman from Virginia, who in his extraordi- them? Yes, sir, in popular governments connary course has not only mentioned the names of stitutional checks are necessary for their pre gentlemen, but ascribed unworthy motives for servation; the people want to be protected their conduct. He has said Mr. Read and Mr. J against themselves; no man is so absurd as 10 Green voted for the law under which they got suppose the people collectedly will consent to appointments. Although I have abundant proof the prostration of their liberties; but if they that neither of these gentlemen solicited their be not shielded by some constitutional checks offices, that they were given spontaneously, and they will suffer them to be destroyed ; to be without being expected, yet I will merely an- | destroyed by demagogues, who filch the coule swer this observation by mentioning what is dence of the people by pretending to be tu very generally known to all gentlemen who friends ; demagogues who, at the time they ar have been of late in the councils of the nation ; soothing and cajoling the people, with bland it is, that it was the invariable practice of the and captivating speeches, are forging chains former Executive to appoint gentlemen to office them ; demagogues who carry daggers in the

hearts, and seductive smiles in their hypocrit * The detail of the vote on the balloting shows this fact, cal faces; who are looming the peop

cal faces ; who are dooming the people to des 80 creditable to South Carolina

potism, when they profess to be exclusively the

FEBRUARY, 1802.]
Judiciary System.

[H. OF R. friends of the people. Against such designs desire more anxiously than to be convinced by and artifices were our constitutional checks gentlemen that this measure is not unconstitumade to preserve the people of this country. I tional. Will gentlemen look back to the histories of The gentleman has asked whether, if we had other countries, and then tell us the people here created an army of judges, and given them monhave nothing to apprehend from themselves ? strous high salaries, it would not be right to reWho, sir, proved fatal to the liberties of Rome? | peal the law ; that if the power exists to repeal The courtier of the people; one who professed any law which might have passed on this subto be “the man of the people," who had will-ject, it might not now be used ? and has been ed his fortune to the people, and had exposed pleased to say, we would have created more his will to the public eye; a man who, when a judges and given them higher salaries, if we Crown was proffered to him, shrunk from the had not wanted nerves; and tells my honoffer, and affectedly said, it did not come from orable and learned friend from Delaware that the people. It was Julius Cæsar who prostrat- we were restrained by the same feebleness of ed the liberties of Rome; and yet Cæsar pro- nerve which induced us at the Presidential elecfessed to be the friend of Rome, to be in fact tion to put blank votes into the ballot box. Sir, the people. Who was it, that, in England, de- my friend from Delaware does want that sort stroyed the Representative Government, and of nerve that some gentlemen now discover. concentrated all its powers in his own hands ? Although he is as brave as he is wise, yet in livOne who styled himself the man of the people; ing without fear he will live without reproach, who was plain, nay studiously negligent in his and never make himself liable to the chargé dress ; disdaining to call himself Mister, it was of prostrating the constitution of his counplain unassuming Oliver; Oliver Cromwell, the try; for such a work it is true he has no nerve. friend of the people, the protector of the Com- The observations of one honorable gentleman monwealth. The gentleman from Virginia says from Virginia (Mr. GILES) being now reiterated he would rather live under a despot than a Gov- by another respecting the course of conduct we ernment where the judges are as independent pursued at the Presidential election, shows that as we would wish them to be. Had I his pro- time has not abated the resentment of Virginia pensities, I, like him, would fold my arms and which we excited by our not voting for the look with indifference at this attack upon the Virginia candidate. Permit me here to declare, constitution. It has been my fortune, Mr. sir, that in reviewing all my public conduct, I Chairman, to have visited countries governed can discover no one act of which I am more saby despots. Warned by the suffering of the tisfied than my having put a blank vote into the people I have seen there, I am zealous to avoid ballot-box. Much has been said on this subject. any thing which may establish a despotism here. My friend from Delaware and myself have been It is because I am a republican in principle and denounced by the jacobins of the country; at by birth, and because I love a republican form their civio feasts, and in their drunken frolics, of Government and none other, that I wish to we have been noticed. European renegadoes, keep our constitution unchanged. Independent who have left their ears on the whipping posts judges, at the same time that they are useful to of their respective countries, or who have come the people, are harmless to them. The judges to this country to save their ears, have endeacannot impose taxes ; they cannot raise armies; vored to hang out terrors to us in the public they cannot equip fleets; they cannot enter into prints ; nay, sir, circular letters have been difforeign alliances : these are powers which are fused through the country, charging us with exercised without control by despots; and as the intention of preventing at one time the electhe gentleman from Virginia does not hold des- tion of a President, and at another with the depots in abhorrence, he and I can never agree in sign of defeating the vote of the Electors and our opinions on Government.

making a President by law. This was all a caWhether another honorable gentleman from lumny, and as it relates to the South Carolina Virginia (Mr. RANDOLPH) has derived all the delegation, I declare they had no intention of service from his sling and his stone he had ex defeating the public will; they never heard of pected, or whether he feels acquitted of his any project for making a President by law; promise, and now thinks himself capable of they had but one object in view which they prostrating the Goliath of this House, armed cap- pursued steadily as long as there was any prosà-pie with the constitution of his country, 'I pect of attaining it. The gentleman from Vircannot conjecture. Whether he has discovered ginia and the gentleman from New York had the skill and the prowess of David, or whether an equal number of votes ; we preferred the he is likened to him only by the weapons he latter; we voted for him more than thirty wars with, it is for the committee to judge ; times, but when we found our opponents would for myself I must say, that his high promises not unite with us, and seemed obstinately dehad excited expectations which in me bave not termined to hazard the loss of the constitution been realized, and when the gentleman sat down rather than join us, we ceased to vote ; we told I was sorry to find my objections to the bill on them we cannot vote with you, but by ceasing your table undiminished. I say sorry, for I to vote, by using blank votes, we will give effect can lay my hand upon my heart, and in the to your votes; we will not choose, but we will fulness of sincerity declare, there is nothing I suffer you to choose. Surely, Mr. Chairman,

H. OF R.]
Judiciary System.

MARCH, 1812 there was nothing in all this which had any as- man has been appointed our Consul at London, pect towards defeating the public will. Why and the former consul, a native and stane I did not prefer the gentleman who ultimately American, whose conduct had been approvel was preferred, has already been mentioned. by merchants generally, has been turned out to This is a subject on which I did not expect to create a vacancy. The gentleman from Virgi be called upon to explain ; but the gentlemen nia has repeated the observation of his co? from Virginia have called, and it was necessary league, that the people are capable of taking to answer. Permit me to state, also, that be care of their own rights, and do not want a corps sides the objections common to my friend from of judges to protect them. Human nature is Delaware and myself, there was a strong one the same every where, and man is precisely the which I felt with peculiar force. It resulted same sort of being in the New World that he is from a firm belief that the gentleman in ques in the Old. The citizens of other Republics tion held opinions respecting a certain descrip- were as wise and valiant and far more power tion of property in my State, which, should ful than we are. The gentleman from Virginis they obtain generally, would endanger it, and knows full well, that wherever the Roman indeed lessen the value of every other.* Fol- standard was unfurled, its motto, “ Senatus." lowing the example set by his colleague, the pulusque Romani," proclaimed to a conquered gentleman from Virginia has bestowed much world that they were governed by the Senate censure on the past Administration, and made and the people of Rome. But now, sir, the it a serious charge against them, having ap- Roman lazzaroni, who crouching at the gates of pointed under this law a gentleman of Mary. his Prince's palaces, begs the offals of his land, who he says was not with us formerly kitchen, would never know that his ancestors but unfurled his standard in the service of his had been free, nor that the people had counted King, and fought against his countrymen, for any thing in Rome, or that Rome ever had whom he then deemed rebels. I did not ex- her Senate ; did he not read it on the broken pect, Mr. Chairman, to hear this observation friezes and broken columns of the ruined temfrom one of the friends of the Executive. Since ples, whose fragments now lie scattered over the fourth of March last, I thought philosophy | the Roman forum! had thrown her mantle over all that had passed ; that sins were to be forgotten and forgiven,

TUESDAY, March 2. and to prove the sincerity of this forgiving Mr. Dana.—After this vindication of meritospirit, sinners were to be distinguished by Ex- rious men who have been removed from office, ecutive favors. One would have thought so in I will now attend more particularly to some obreviewing Executive conduct; where persons servations of the gentleman from Virginia. He had been imprisoned and fined under our laws, has spoken of the judicial act of the 13th of Febthey we know were released; where fines had ruary, 1801, as if the passage of it had been attendactually been paid, the officers of Governmented with improper circumstances, and thence has had been ordered to return them, and not only attempted to deduce the inference that it ought tories had been appointed to office, but old to be repealed. He read part of the journal of tories, rank old tories, who had been 'banished. I the last session, and charged certain members The present collector of Philadelphia, for the in- of the House with having been engaged in opternal revenue, has been appointed since the posing the public will at the time when the act fourth of March last, and although he never,

was approved. The journal shows, that on the like the gentleman alluded to, shivered lauces | 13th of February, eighteen hundred and one, in the service of his King, yet' he was actively the representatives, voting by States, proceeded employed in the more safe service of giving into the twenty-ninth ballot for President, and formation to the British Generals, and march- the result was the same as had taken

the result was the same as had taken place boing before Sir William Howe, decorated with fore; the votes of eight States given for Thomlaurels, conducted him into the metropolis of as Jefferson; the votes of six States for Aaron his native State. Sir, there are many instances Burr; and the votes of two States divided. of this kind. Have gentlemen forgotten the Much has been said on this topic, which has at young Englishman who was so busily emploved | length been brought forward as a public chanzo here last winter during the Presidential elec- | by the gentleman from Virginia. It is now tion, that in seeing him one would really have

time that it should be examined. supposed him not only a member of this House,

| According to the principles of our Governbut, like him of Tennessee, holding an entire ment, the public will, when explicitly ascul vote at his command ? This youngster was tam

tained by an authentic act, is the law of tho sent out here by some merchants in England to I land, and must be obeyed. Of this there call collect debts due to them in this country and be no doubt ; it is beyond all question, but his father. whose tory principles carried' him this public will is not merely the will of pars from America early in the Revolution, is now

of the community, a section of the people; it subsisting on a royal pension ; and this young

is the will of the great body of American citi

zens. The highest and most solemn expression * This is the first authentic declaration that Mr. Jefferson's of the public will in this country is the Consti: opinion on slavery was an obstacle to his receiving the tution of the United States.

| tution of the United States.

This was

This was agreed South Carolina yote.

I to by the General Couvention; was transinitted

MARCH, 1802.]
Judiciary System.

[H. OF R. to the Legislatures of the several States by the accused of hostility to the interest of the people, unanimous resolution of Congress under the because they did not think proper to elect the Confederation; was recommended by all those candidate from Virginia ? Are our affairs alLegislatures, when they passed laws for sub- ready reduced to such a situation that it is to mitting it to conventions for their ratification, be charged as a public offence, if any member and was finally ratified by the conventions of all of this House has failed to vote for a Virginian the States in the Union. It was thus established to be the President of the United States ? by the general consent. In this we should ac- It was the constitutional right of members of knowledge the high authority of the public will. this House, in deciding between the two candi

There is, however, a misfortune which at- dates, to give their ballots for the one whom tends the argumentation of some gentlemen. they believed to be superior in practical capacity They substitute a part for the whole; and for administering the Government-one whom would confound the will of a certain portion of they believed to be not hostile to the commerthe people, however vaguely expressed, with cial interests of the country, and not disposed the will of the whole public body as explicitly to subject the Union to the domination of a manifested by an authentic act.

particular State, whatever might be its lordly What manifestation was there of the public pretensions in consequence of extent of territory will relative to the late election of a President or antiquity of dominion. of the United States ? The only authentic As the gentleman from Virginia has thought evidence of the public will on this subject proper to speak of events which took place proved, that Thomas Jefferson, of Virginia, about the time of passing the act in question, and Aaron Burr, of New York, were equally allow me, sir, to mention one circumstance, of the objects of approbation. The majority of which he has said nothing. The act, as finally the electors had given them an equal number enrolled, was signed by the Speaker of the of votes. What then was the difference of House of Representatives after the balloting for right between them? Was it, that one of the a President had commenced ; and the Clerk candidates was a Virginian? Was it that the carried it to the other House for the signature members of Congress were assembled on the of their President. The candidate from Virbanks of the Potomac, with Virginia in view ginia was then in the chair of the Senate. on the other side? Must it be acknowledged | The Clerk of this House, on first presenting as the prerogative of that State to impose a himself, as was customary, at the door of the Chief Magistrate on the Union? Or was there Senate Chamber, was not admitted. The situa difference of right, because Virginia, with its ation came to the knowledge of a Senator, and extent and population, could make more clamor was communicated to the Senate. After the than any other State The noise of so great sense of that body was found to be for his ada State may sometimes seem loud enough for mission, the door was opened, and the Clerk the voice of the people of the United States. was admitted to deliver his message, and preAnd are they, therefore, in this House to be sent the enrolled bill for signature. It was confounded with each other? If so, the ob- then signed by the President of the Senate. servations about the public will, of which we What should be thought of this, as taken in have lately heard so much from a certain connection with the fate of the act and pendency quarter, must be understood to mean the will of the Presidential election ? Was it a circumof Virginia; and we may thus judge of the ar- stance which must ever be remembered with gamentation when gentlemen from that State mortification, and which therefore will never are speaking of the respect due to the public will. be forgiven?

Two persons were presented, in constitution- To give a further color to the suggestion that al form, to the House of Representatives, as the passage of the act was attended with inbeing equally candidates for the office of Presi- proper circumstances, the attempt has been dent: one from Virginia and the other from made to impress an idea that it was adopted New York. When they were so presented, the without mature deliberation, and hurried choice between the two candidates was de- through its different stages in a reprehensible volved on the Representatives, by the Constitu- manner. If we are not willing to be misled by tion of the United States. After maturely pretext, let us examine what was the fact. considering the question, it was for them, as A recurrence to the journals of the House ultimate electors, to vote as they judged to be will prove that the subject of the Judicial Esmost for the public welfare. They voted by tablishment was recommended by the PresiStates, as required by the constitution. And dent of the United States to the attention of are gentlemen to be here accused for exercising Congress at two successive sessions. In his the constitutional right of election according to communication at the opening of the first sesthe conviction of their own judgments? When sion of the sixth Congress, he recommended the called upon, under the constitution, to elect subject in the following terms : one of the two candidates, were they not " To give due effect to the civil administration of bound, by the nature of their duty, to give

Government, and to ensure a just execution of the their votes according as the one or the other laws, a revision and amendment of the Judiciary was by them judged to be more or less prefer- system is indispensably necessary. In this extensivo able? Upon what principle can gentlemen be country it cannot but happen that numerous ques

H. OF R.]


[March, 1802 tions respecting the interpretation of the laws and on the next day; this was negatived. The year the rights and duties of officers and citizens must and days were taken twelve times during the arise. On the one hand, the laws should be ex- sitting. A motion was made to adjourn; this ecuted ; on the other, individuals should be guarded was negatived. The general rule of the Hous from oppression. Neither of these objects is suf- being against reading a bill twice on the same ficiently assured under the present organization of 1 day withont special order. A motion for then the Judicial Department. I therefore earnestly re-l)

reading the bill the third time was made on the commend the subject to your serious consideration."

part of its advocates, and carried. On taking In the House of Representatives, this part of the yeas and nays, for the thirteenth time in the President's Speech was referred to a select one day, the bill passed by a majority of $9 to committee. They reported a bill which con- 29. Mark the smallness of the majority in both tained a variety of provisions for amending the Houses; the utter rejection of every amendsystem. The bill was referred to a Committee ment in the House of Representatives; the of the Whole, in which it was discussed several | hurried manner in which it was forced on to days, and was afterwards recommitted to the the final question. Recollect other considasame gentlemen who had reported it. As itations relative to the passage of that act, and was printed for the use of the members, and the then judge whether it was not attended with subject was extensively interesting to the com-circumstances signally improper. If matters of munity, it was judged proper to defer a final this kind constitute à sufficient cause for gene decision until another session, and in the mean tlemen to repeal any act passed by their pretime gentlemen might have an opportunity to decessors, why should we remain here in puracquire information that would assist them to suance of this act? Will any gentleman say it form a more satisfactory judgment.

is for our personal convenience that the seat of At the second session of the sixth Congress, I Government is now at this place? Is it at the subject was again recommended by the present for the public convenience? Is it les President. These are his words:

expensive for individuals, or for the public, “ It is, in every point of view, of such primary im- than it would be in some of your commercial portance to carry the laws into prompt and faithful cities? Have yoi here the opportunities for execution, and to render that part of the administra- valuable information which might be had else tion of justice which the constitution and laws de- where? What, then, should detain us, if it be volve on the Federal courts, as convenient to the not a regard to stability and consistency in pubpeople as may consist with their present circum

lic proceedings, combined with a regard to the stances, that I cannot omit once more to recommend

expectations of respectable persons seriously into your serious consideration the Judiciary system

terested in the question? But if you may reof the United States. No subject is more interesting

peal the act organizing the Judicial system, than this to the public happiness; and to none can

what principle is there that ought to confine those improvements which may have been suggested by experience be more beneficially applied."

the Government to the place in which we are

now assembled ? Repeal this act, as is proOn this recommendation a select committee

posed by the bill on your table, and you shake was appointed. That committee reported a bill

the principle of public stability and consistency. to provide for the more convenient organization

Repeal this act, and there can be no principle of the courts of the United States. The bill un-1

of constitutional obligation, none of political derwent a long discussion and a variety of

honor, or legal right, to detain you here. amendments. It was finally passed in the House of Representatives by a majority of 51 to 43; and in the Senate by a majority of 16 to

WEDNESDAY, March 3. 11. After knowing these facts, will gentlemen have the hardihood to call this a hasty mea

Mr. LOWNDES moved that the further colo

sideration of the bill be postponed until the sure? Compare the whole proceedings with what

first Monday in December next; on which : took place respecting a former act. Gentlemen gebate

debate of considerable length ensued; when, have spoken of the general power of Congress

the question being taken thereupon, it passed to repeal acts passed by their predecessors.

in the negative-yeas 32, nays 59. Are they prepared to repeal the act to which I

And, after debate thereon, the main question now refer? It is the act relative to the tem

was taken that the said bill do pass, and reporary and permanent seat of Government,

solved in the affirmative-yeas 59, nays 32, as passed in July, 1790. That act was carried in

follows: the Senate by a majority of 14 to 12. In the

Yeas.-Willis Alston, John Archer, John Bacon, House of Representatives, a Committee of the

Theodorus Bailey, Phanuel Bishop, Richard Breit, Whole agreed to it as it came from the Senate.

Robert Brown, William Butler, Samuel J. Cabello Twelve different amendments were proposed in

Thomas Claiborne, Matthew Clay, John Clopto,

John Condit, Richard Cutts, Thomas T. Davis, John the House; the yeas and nays were taken on

Dawson, William Dickson, Lucas Elmendorph, Ebeneach of them, and every amendment was re

ezer Elmer, John Fowler, William B. Giles, Edwin jected—all in one day. A motion was then Gray, Andrew Gregg, Joseph Heister, William Helms made for the third reading of the bill on the Wm. Hoge, James Holland, David Holmes, George Monday following; the motion was negatived. | Jackson, Charles Johnson, William Jones, Michael It was moved that the third reading should be Loib, John Milledge, Samuel L. Mitchill, Thomas

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