H. OF R.]

Judiciary System.

[FEBRUARY, 1802,

| without previously advising with them. It is well known that under the law gentlemen are now endeavoring to repeal, Mr. Jay was ap pointed Chief Justice, and about the same time several gentlemen in this House were appoin

from the electors an equal number of votes, did not prefer him 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 trans-ed to some of the most honorable stations 12action to which he alludes, I will give it.

The district judge in Rhode Island was appointed circuit judge, and Mr. Green was ap pointed district judge. On the fourth day of 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 ap peared by the journals of the Senate; they here made a complete recognition of his ap pointment as judge, and he vacated his sest 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 Exe

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 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 im-cutive, in a letter most profoundly respectful, 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 eft to us 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, we 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

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 appointment of Mr. Green, and the manner in which the President "corrected the procedure."

Sir, the Judiciary is, in the fabric of the con stitution, 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 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 constitutional 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 confi 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

tional.

[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. 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 will-ject, it might not now be used? and has been 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 prostrated the liberties of Rome; and yet Cæsar 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 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 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 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

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 subpleased 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,

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 Virgi nia has repeated the observation of his co 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 power ful than we are. The gentleman from Virginia knows full well, that wherever the Roman standard was unfurled, its motto, " Senatus 2pulusque Romani," proclaimed to a conquered world that they were governed by the Senate But now, sir, the and the people of Rome. 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 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, 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 with improper circumstances, and thence has 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, According to the principles of our Govern but, like him of Tennessee, holding an entire ment, the public will, when explicitly tained by an authentic act, is the law of the vote at his command ? This youngster was sent out here by some merchants in England to land, and must be obeyed. Of this there can 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 part 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

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

South Carolina vote.

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 18th 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

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 Consti tution of the United States. This was agreed to by the General Convention; was transmitted

Judiciary System.

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.

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 forin a more satisfactory judgment.

[March, 1801

on the next day; this was negatived. The yeas and nays were taken twelve times during the sitting. A motion was made to adjourn; this was negatived. The general rule of the Hous being against reading a bill twice on the same day without special order, a motion for the reading the bill the third time was made on the part of its advocates, and carried. On taking the yeas and nays, for the thirteenth time i one day, the bill passed by a majority of 320 29. Mark the smallness of the majority in both Houses; the utter rejection of every amend ment in the House of Representatives; the hurried manner in which it was forced on to the final question. Recollect other consider ations relative to the passage of that act, and then judge whether it was not attended with circumstances signally improper. If matters of this kind constitute a sufficient cause for gentlemen to repeal any act passed by their predecessors, why should we remain here in par 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 at 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 peal the act organizing the Judicial system, than this to the public happiness; and to none can what principle is there that ought to contine those improvements which may have been suggested the Government to the place in which we are by experience be more beneficially applied." now assembled? Repeal this act, as is prowas appointed. That committee reported a bill posed by the bill on your table, and you shake 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-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 11. After knowing these facts, will gentlemen have the hardihood to call this a hasty mea-sideration of the bill be postponed until the

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

sure?

WEDNESDAY, March 3.

Mr. LOWNDES moved that the further con

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

Compare the whole proceedings with what first Monday in December next; on which a took place respecting a former act. Gentlemen 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 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

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, Jon Thomas Claiborne, Matthew Clay, John Clopton, Dawson, William Dickson, Lucas Elmendorph, Ebenezer Elmer, John Fowler, William B. Giles, Edwin Gray, Andrew Gregg, Joseph Heister, William Helms, Wm. Hoge, James Holland, David Holmes, George Jackson, Charles Johnson, William Jones, Michael Leib, John Milledge, Samuel L. Mitchill, Thomas