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H. OF R.]

Judiciary System.

[FEBRUARY, 1802.

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 are to be charged with an immolation of our con- now endeavoring to repeal, Mr. Jay was ap 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 appoint. lest he should not know the history of the trans-ed to some of the most honorable stations uaction to which he alludes, I will give it.

der our Government; the Executive's intention, 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 declinferson and Aaron Burr; there being a tie, it ed accepting the places proffered to them. Perdevolved, by the direction of the constitution, mit me, sir, to give a brief history of the case 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 ap dent, and we accordingly voted for him; we pointed circuit judge, and Mr. Green was ap continued to vote for him six and thirty times; pointed district judge. On the fourth day of 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 ap ed 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 ap President, or they would have no President, we,pointment as judge, and he vacated his seat. 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 portant features 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 from Virginia, as long as there was any prospect aft to us of elevating the gentleman from New York; but when we found the object of our preference was so noxious to gentlemen on the other side, that they would hazard the having of no President rather than have him, we ceased our opposition.* And this is what the honorable member from Virginia has been pleased to call" pushing forward to immolate the constitution."

After getting home he received his commission, in which the blanks had been filled up with the words circuit judge, instead of district judge, Mr. Green enclosed his commission to the Exeim-cutive, in a letter most profoundly respectful, and requested the errors of the clerk in the De partment of State might be corrected, and his commission made to conform to the appoint ment, as recorded on the Senatorial journal To this letter, which was in highly respectful terms, the President would not deign to have any answer given; he pocketed Mr. Green's commission, and placed another gentleman in his office. This is a history of the appoint ment of Mr. Green, and the manner in which the President "corrected the procedure."

Sir, the Judiciary is, in the fabric of the con ob-stitution, not a Corinthian pillar, not any orna ment 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 our Government, and if you demolish it, the grand arch itself will totter and the whole be endan gered. We are asked by the gentleman from Virginia if the people want judges to protect them? Yes, sir, in popular governments collstitutional checks are necessary for their preservation; the people want to be 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 be destroyed by demagogues, who filch the conf dence 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 their hearts, and seductive smiles in their hypocriti cal faces; who are dooming the people to des potism, when they profess to be exclusively the

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.

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friends of the people. Against such designs
and artifices were our constitutional checks
made to preserve the people of this country.
Will gentlemen look back 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 liberties of Rome?
The courtier of the people; one who professed
to be "the man of the people," who had
ed 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 Cæsar who prostrat-
ed the liberties of Rome; and yet Cæsar pro-
fessed to be the friend of Rome, to be in fact
the people. Who was it, that, in England, de-
stroyed 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 Com-
monwealth. The gentleman from Virginia says
he would rather live under a despot than a Gov-
ernment where the judges are as independent
as we would wish them to be. Had I his pro-
pensities, 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 thing 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 impose 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 des-
pots in abhorrence, he and I can never agree in
our opinions on Government.

[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 subwill-ject, it might not now be used? and has been pleased to say, we would have created more judges and given them higher salaries, if we 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 he will live without reproach, and never make himself liable to the 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 course 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 Virginia candidate. 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 civic feasts, and in their drunken frolics, we have been noticed. European renegadoes, who have 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 us in the public prints; nay, sir, circular letters have been diffused through the country, charging us 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 the 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,

Whether another honorable gentleman from Virginia (Mr. RANDOLPH) has derived all the service from his sling and his stone he had expected, or whether he feels acquitted of his promise, and now thinks himself capable of prostrating the Goliath of this House, armed capà-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

636

H. OF R.]

Judiciary System.

[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 Virginia has repeated the observation of his cor league, that the people are capable of taking care of their own rights, and do not want a corps Human nature is of judges to protect them. the same every where, and man is precisely the same sort of being in the New World that he is in the Old. The citizens of other Republics were as wise and valiant and far more powerThe gentleman from Virginia ful than we are. knows full well, that wherever the Roman standard was unfurled, its motto, “Senatus pulusque Romani," proclaimed to a conquered But now, sir, the world that they were governed by the Senate and the people of Rome. ap-Roman lazzaroni, who crouching at the gates of 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.

there was nothing in all this which had any aspect towards defeating the public will. Why I 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 pointed 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, Mr. DANA.-After this vindication of meritoand to prove the sincerity of this forgiving spirit, 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 observations of the gentleman from Virginia. He reviewing Executive conduct; where persons 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 had been ordered to return them, and not only tories had been appointed to office, but old tories, 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 lances 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 here 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 the first authentic declaration that Mr. Jefferson's opinion on slavery was an obstacle to his receiving the

South Carolina vote.

with improper circumstances, and thence has attempted to deduce the inference that it ought to be repealed. He read part of the journal of the last session, and charged certain members of the House with having been engaged in opposing the public will at the time when the act was approved. The journal shows, that on the 13th of February, eighteen hundred and one, 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 now time that it should be examined.

ascer

According to the principles of our Govern-
ment, the public will, when explicitly
tained 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. But
this public will is not merely the will of part
of the community, a section of the people;
is the will of the great body of American citi
zens. The highest and most solemn expression
agreed
of the public will in this country is the Consti
tution of the United States. This was
to by the General Convention; was transmitted

C

00

MARCH, 1802.]

Judiciary System.

[H. OF R

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?

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, and was finally ratified by the conventions of all the States in the Union. It was thus established by 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 public 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? Must it be acknowledged as the prerogative of that State to impose a Chief Magistrate on the Union? Or was there 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

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 act, 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 inproper circumstances, the attempt has been inade 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 us 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 Presi dent 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 recommended 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 ques

H. OF R.]

Proceedings.

e yea

[MARCH, 1802 tions respecting the interpretation of the laws and on the next day; this was negatived. They the rights and duties of officers and citizens must and nays 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 Home from oppression. Neither of these objects is suf- being against reading a bill twice on the same ficiently assured under the present organization of day without special order, a motion for the the Judicial Department. I therefore earnestly recommend the subject to your serious consideration." reading the bill the third time was made on the part of its advocates, and carried. On taking In the House of Representatives, this part of the yeas and nays, for the thirteenth time it the President's Speech was referred to a select one day, the bill passed by a majority of 32 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 amend system. 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 consider same 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 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.

then judge whether it was not attended with circumstances signally improper. If matters of this kind constitute à sufficient cause for gen tlemen to repeal any act passed by their predecessors, why should we remain here in pr suance of this act? Will any gentleman say it is for our personal convenience that the seat of Government is now at this place? Is it st present for the public convenience? Is it less 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 you 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 pub people 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 re of the United States. No 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."

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

On this recommendation a select committee

peal 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, as is proposed by the bill on your table, and you shake Repeal this act, and there can be no principle the principle of public stability and consistency. of constitutional obligation, none of political honor, or legal right, to detain you here.

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 House 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 mea-sideration of the bill be postponed until the

sure?

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 and 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

WEDNESDAY, March 3.

Mr. LOWNDES moved that the further con

first Monday in December next; on which s
debate of considerable length ensued; when,
in the negative-yeas 32, nays 59.
the question being taken thereupon, it passed

And, after debate thereon, the main question
was taken that the said bill do pass, and re-
follows:
solved in the affirmative-yeas 59, nays 32, as

YEAS.-Willis Alston, John Archer, John Bacon, Theodorus Bailey, Phanuel Bishop, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, John Condit, Richard Cutts, Thomas T. Davis, John Thomas Claiborne, Matthew Clay, John Clopton, Dawson, William Dickson, Lucas Elmendorph, EbenGray, Andrew Gregg, Joseph Heister, William Helms, ezer Elmer, John Fowler, William B. Giles, Edwin Wm. Hoge, James Holland, David Holmes, George Jackson, Charles Johnson, William Jones, Michael Leib, John Milledge, Samuel L. Mitchill, Thomas

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