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SENATE.]

Proceedings.

[JANUARY, 1808 THURSDAY, December 23.

YEAS.-Messrs. Baldwin, Clinton, Dayton, T. For

ter, D. Foster, Franklin, Hillhouse, Howard, Jaci. Mr. Morris, from the State of New York, son. Logan, J. Mason, Morris, Olcott, Plumer, Store, attended.

Tracy, Wells, and White.

NAYS.-Messrs. Anderson, Bradley, Breckenrides, Monday, December 27.

Cocke, Ellery, Nicholas, Sumter, and Wright. Mr. HILLHOUSE, from the State of Connecti- So it was Resolved, That this bill pass, that i cut, attended.

be engrossed, and that the title thereof be * An

act to carry into effect the several resolutions THURSDAY, December 30.

of Congress for erecting monuments to the me Mr. ANDERSON, and Mr. COOKE, from the Davidson, and Scriven."

mories of the late Generals Wooster, Herkimer, State of Tennessee, severally attended. MONDAY, January 3, 1803.

TUESDAY, January 11.

In Executive session, the following Message Mr. NICHOLAS, from the State of Virginia, ,

i was received from the PRESIDENT OF THE UNITED and Mr. Wells, from the State of Delaware,

STATES: attended.

Gentlemen of the Senate :
FRIDAY, January 7.

The cession of the Spanish province of Louisians

to France, and perhaps of the Floridas, and the Iste Mr. STONE, from North Carolina, attended.

suspension of our right of deposit at New Orleans, The PRESIDENT communicated a letter signed are events of primary interest to the United States T. Worthington, agent for the State of Ohio, On both occasions, such measures were promptly enclosing a copy of the constitution of the said taken as were thought most likely amicably to State, and requesting it might be laid before the move the present and to prevent future causes of isSenate ; and they were read, and ordered to lie quietude. The objects of these measures were to for consideration.

obtain the territory on the left bank of the Mississippi, The Senate resumed the consideration of the

and eastward of that, if practicable, on conditions to motion made on the 5th instant for extending

which the proper authorities of our country would the laws of the United States to the State of

agree; or, at least, to prevent any changes which Ohio, together with the amendment proposed

might lessen the secure exercise of our rights. While

my confidence in our Minister Plenipotentiary s thereon; which amendment was withdrawn;

Paris is entire and undiminished, I still think that and it was agreed to adopt the motion, amended these ob

these objects might be promoted by joining with him as follows: Resolved, That a committee be appointed to the feelings and sentiments of the nation, excited

a person sent from hence directly, carrying with him inquire whether any, and, if any, what Legis- the late occurrence, impressed by full communications lative measures may be necessary for admitting of all the views we entertain on this interesting subthe State of Ohio into the Union, or for extend-Vject; and thus prepared to meet and to improve, to ing to that State the laws of the United States; a useful result, the counter-propositions of the other and

contracting party, whatsoever form their interests Ordered, That Messrs. BRECKENRIDGE, MOR- may give to them, and to secure to us the ultimate RIS, and ANDERSON, be the committee, and that accomplishment of our object. the letter signed T. Worthington, agent for the I therefore nominate Robert R. Livingston to be State of Ohio, laid before the Senate this morn- Minister Plenipotentiary, and James Monroe to be ing, together with a copy of the constitution of

Minister Extraordinary and Plenipotentiary, with full said State, be referred to the same committee,

powers to both, jointly, or to either, on the death of

the other, to enter into a treaty or convention with to consider and report thereon. The bill to carry into effect the several reso

the First Consul of France, for the purpose of en

larging, and more effectually securing, our rights and lutions of Congress for erecting monuments to interests in the river Mississippi, and in the territories the memories of the late Generals Wooster,

eastward thereof. Herkimer, Davidson, and Scriven, was read the But as the possession of these provinces is still in third time.

Spain, and the course of events may retard or preOn motion to postpone the further considera- vent the cession to France being carried into effect, tion of this bill until the first Monday in Decem- to secure our object, it will be expedient to address ber next, it passed in the negative-yeas 9, nays equal powers to the Government of Spain also, to be 17, as follows:

used only in the event of its being necessary. YEAS.--Messrs. Anderson, Baldwin, Bradley,

I therefore nominate Charles Pinckney to be MinisBreckenridge, Cocke, Ellery, Nicholas, Sumter, and

ter Plenipotentiary, and James Monroe, of Virginis, Wright.

to be Minister Extraordinary and Plenipotentiary, Nays.-Messrs. Clinton, Dayton, T. Foster. D. with full powers to both, jointly, or to either, on the Foster, Franklin, Hillhouse, Howard, Jackson, Logan,

death of the other, to enter into a treaty or convenJ. Mason, Morris, Olcott, Plumer, Stone, Tracy,

tion with His Catholic Majesty, for the purpose of Wells, and White.

enlarging, and more effectually securing, our rights

and interests in the river Mississippi, and in the terthe queston, Snail this Diu pass as amend-ritories eastward thereof. ed ? it was determined in the affirmative-yeas! JAN. 11, 1803.

TH, JEFFERSON. 18, nays 8, as follows:

FEBRUARY, 1803.]
Memorial of United States Judges.

(SENATE The Messages and papers therein referred to ! By an act of Congress passed on the thirteenth were read, and ordered that they severally lie day of February, in the year of our Lord one thoufor consideration.

sand eight hundred and one, entitled “ An act to provide for the more convenient organization of the

courts of the United States," certain judicial offices MONDAY, January 17.

were created, and courts established, called circuit Mr. Brown, from the State of Kentucky, at courts of the United States. tended.

In virtue of appointments made under the Constitution of the United States, the undersigned became

vested with the offices so created, and received comWEDNESDAY, January 19.

missions authorizing them to hold the same, with the AARON BURR. Vice President of the United emoluments thereunto appertaining, during their States, and President of the Senate, attended.

good behavior.

During the last session an act of Congress passed,

by which the above-mentioned law was declared to THURSDAY, January 20.

be repealed; since which no law has been made for The Vice PRESIDENT laid before the Senate a in

assigning to your memorialists the execution of any

| judicial functions, nor has any provision been made certificate of the election of SAMUEL MOLAY, Esq. of Northumberland county, and State of

for the payment of their stipulated compensations.

Under these circumstances, and finding it expressly Pennsylvania, to be a Senator of the United

declared in the Constitution of the United States, that States from the fourth day of March next, in “The judges both of the supreme and inferior courts clusive; and it was read and ordered to lie on shall hold their offices during good behavior, and shall, file.

at stated times, receive for their services a compensation which shall not be diminished during their

continuance in office," the undersigned, after the MONDAY, January 24.

most deliberate consideration, are compelled to repreThe VICE PRESIDENT communicated a letter sent it as their opinion, that the rights secured to from the Clerk of the House of Representatives them by the constitution, as members of the Judicial of the State of Delaware, enclosing the credentials of SAMUEL WHITE, Esq., elected a Senator

With this sincere conviction, and influenced by a of the United States for the term of six years,

sense of public duty, they most respectfully request commencing on the 4th day of March next;

of Congress to review the existing laws which respect

the offices in question, and to define the duties to be and they were read.

performed by the undersigned, by such provisions as Ordered, That they lie on file.

shall be consistent with the constitution, and the

convenient administration of justice. WEDNESDAY, January 26.

The right of the undersigned to their compensa

tions, they sincerely believe to be secured by the JAMES Ross, from Pennsylvania, attended.

constitution, notwithstanding any modification of the

Judicial Department, which, in the opinion of ConTHURSDAY, January 27.

gress, public convenience may recommend. This

right, however, involving a personal interest, will be Mr. Ross presented the several representa

cheerfully submitted to Judicial examination and detions and memorials of Richard Basset, Egbert

cision, in such manner as the wisdom and impartiality Benson, Benjamin Bourne, William Griffith, l of Congress may prescribe. Samuel Hitchcock, B. P. Key, 0. Magill, Jere- That judges should not be deprived of their offices miah Smith, G. K. Taylor, William Tilghman, or compensations without misbehavior appears to the and Oliver Wolcott, judges of the circuit courts undersigned to be among the first and best estabunder the late act, entitled “ An act to provide lished principles of the American constitutions; and for the more convenient organization of the in the various reforms they have undergone, it has courts of the United States;” stating that, been preserved and guarded with increased solicitude. since the repeal of the said act, no law had On this basis the Constitution of the United States been made for assigning to them the execution has laid the foundation of the Judicial Department. of any Judicial functions, nor has any provision

and expressed its meaning in terms equally plain and been made for the payment of their stipulated per

This being the deliberate and solemn opinion of compensations; and most respectfully request

the undersigned, the duty of their stations requires ing Congress to review the existing laws with

that they should declare it to the Legislative body. respect to the officers in question; and the They regret the necessity which compels them to memorials were read.

make the representation, and they confide that it will Ordered, That they be referred to Messrs. be attributed to a conviction that they ought not MORRIS, Ross, and DAYTON, to consider and re- voluntarily to surrender rights and authorities inport thereon, and that the memorials be printed trusted to their protection, not for their personal adfor the use of the Senate. The memorial is as vantago, but for the benefit of the community. follows: To the Honorable the Senate and House of Representa

THURSDAY, February 3. tives in Congress assembled :

Memorial of Judges. The undersigned most respectfully submit the fol- Agreeably to the order of the day, the Senate zowing resolution and memorial.

I took into consideration the report of the com

SENATE.]
Memorial of United States Judges.

[FEBRUARY, 1803. mittee on the several memorials of the judges, already settled. While the act of last sessina under the late act to provide for the more con- was in agitation, we opposed it steadily, perti venient organization of the courts of the United naciously. But that act has become a law, and States. The committee report as follows: to the authority of the law we bow submissively,

That the petitioners were judges of certain courts, While in suspense, we thought it our daty, ss inferior to the Supreme Court, constituted by an act Senators, to oppose it. But since it has been of the 13th of February, 1801, and duly commission- adopted, according to the forms of the constitaed to hold their offices during good behavior. tion, we know that as citizens we are bound to

That, while holding and exercising their offices, an obey. With these deep impressions, then, of act was passed on the 8th of March last, to repeal what is due to the supreme law of our land. I the said act of the 13th of February, 1801, and transfer shall proceed to the report of your committee the duties of the said judges from them to others. and endeavor to explain its several parts. That a question has arisen whether, by reason of

Gentleinen will perceive that the question the premises, the said petitioners be deprived of their

which the memorialists have submitted to our offices.

investigation is, whether the law of last session That this question, depending on the construction

has deprived them of their office of judge. Your of the laws and Constitution of the United States, is

committee consider this question as not being not properly cognizable by the Senate. The committee, therefore, conceive it improper

cognizable by the Senate. It is not for the either to give reasons or express opinions; but they Senate, nor the Representatives, nor both conconsider it as a question of high and serious import, bined, to interpret their own acts. We are s and believe that a speedy investigation and final de- part of the Legislature. A part of the Exececision is of great moment to the commonwealth. tive power is also delegated to us. If the Judi

Wherefore, they submit the following resolution ciary be added, it will constitute a tyranny. It

Resolved, That the President of the United States is, indeed, the very definition of tyranny which be requested to cause an information, in the nature has been given by those best acquainted with of a quo warranto, to be filed by the Attorney Gene- the subject. This Senate can have no wish to ral against Richard Basset, one of the said petitioners, arrogate power. It is too just, too wise. Ifs for the purpose of dociding judicially on their claims. I sense of propriety did not prevent prudence

Mr. MORRIS said, I rise, Mr. PRESIDENT, as alone would forbid the attempt. This body is chairman of the committee whose report you too feeble for the exercise of so much authority. have just had the goodness to read, for the pur-Its form, its constitution, the mode and manner pose of explaining their reasons. If this were of its creation and existence, the strength and a common or an ordinary occasion, if no heats structure of its members, render it incapable of had been excited, if there were no unpleasant, sustaining a greater weight of power. no tormenting recollections, a measure so plain, Your committee, sir, have ventured to es so easy, so simple, would require neither argu- press their belief, that the question should be ment nor persuasion. It would be adopted for speedily settled. I learned in early youth, from its own interior evidence, and from the general the volumes of professional science, that it is sense of propriety. Unhappily, sir, this is not expedient for the Commonwealth that a speedy the case." Serious differences of opinion have end should be put to litigation; and if it be intexisted, and still exist on the subject with which portant that litigation should cease between it is connected. From these have arisen dis- man and man, how much more important that putes, divisions, bickerings. There is not, I fear, a litigated point of public right, which interests in the minds of men, that calm impartiality and agitates the whole community, should be which is needful to fair investigation. There laid at rest? And if this be important in the remains much of prejudice, of irritability. general course of things, is it not, under present

Your committee have pursued the course circumstances, indispensable? And how is it which appeared to be proper, not only in itself, to be effected? By an exertion of Legislative but according to the existent circumstances. might; by force. Remember, force will excite Gentlemen will easily see that they might have resistance. Such is the nature of the human made an elaborate report, containing a long de- heart. Free citizens revolt with disdain at the tail of reasons to establish a favorite conclusion; 1 exercise of force. But judgment commands and a slight knowledge of the forms of business their prompt, their willing obedience. When will show, that they might have placed that re- the law is known, when it is declared by the port at length on your journals. But would proper tribunals, all will bow to its authority. this have been right? Would it have tended You, then, may expect a full, and quiet, and to conciliate? Would it have been a proper general submission. But while it is litigated return for the unanimity with which your com- and uncertain what the law is, differences will mittee was chosen? Surely it would not; and exist, and discord will prevail. is it not the duty of every good citizen to heal, It is under these impressions, sir, that your as far as possible, the wounds of society? To committee have presumed to offer the resolucalm those irritations which disturb its repose tions on your table; and as some of the technical To remove all things which may alarm, torment, terms may not be familiar to every gentleman, or exacerbate ?

it may be proper to state the kind of proceed. Mr. President, your committee have no inten- ing which is recommended. tion, no wish to revive a discussion of points! The attorney general, or, as he is denominated

FEBRUARY, 1803.]
Memorial of United States Judges.

(SENATE. in French idiom, the public accuser, will insti- I entertain of their duty. And, if it were decent tute, before the proper tribunal, an inquiry by to suggest in this Senate, that they were lost to what authority' these men claim to hold and a sense of duty, can it be believed, that a few exercise the office of judge. It will then be in- feeble judges will dare oppose themselves to the cumbent upon them, either to disclaim the office, power of the Legislature ? and then there is an end of the question; or else The VICE PRESIDENT rose, and said he must (claiming it) to establish their right. And to do call the attention of the Senate to the point in this, they must prove two things ; first, that the discussion, which was, whether the Senate would office exists, and secondly, that of right it be- request the President to cause a process to be longs to them. Failing of either, their claim is instituted for the purpose of ascertaining whether gone.

the petitioners still hold the office of judge. On Now, sir, it may be well to consider the deci- this question, it could not be in order to go sions which may be made, and their probable back to a law passed at the last session, and to effect. I take it for granted, that these gentle- discuss the merits of that law. men, who have asked a Judicial decision, will Mr. JACKSON said, it appeared by the memonot disclaim, and that whatever judgment may rial that the petitioners considered themselves be given in the first instance, the cause will be as being still judges, notwithstanding the law brought up to the Supreme Court. If the judg- of last session. He thought, therefore, it could nent, in the last resort, should be (as it proba- not be out of order to show that that act debly would be) against the claim, all complaint prived them of their offices. will be quieted, and all opposition will cease. Mr. Wright premised, that he would endeavor Some then, indeed, might triumph. For my to confine his remarks to the point before the Jwn part, I should find in it great consolation- Senate. He felt no disposition to travel again he consolation of knowing that, however wrong over the ground which had been traversed at nay have been my own opinions, the Supreme the last session. Legislature of my country have done right. The The petition was addressed to both Houses, pride of opinion might, indeed, be wounded; and prayed for two things ; first, that Congress, but God forbid, that from motives of pride, or in their Legislative capacity, would assign to 'rom any other motive, I should hear, without the petitioners some Judicial duties; and secleep concern, that the Legislature of my country ondly, that they would authorize a Judicial insave violated that sacred charter from which vestigation of their claim to compensation. The hev derive their authority!

committee, therefore, ought to have confined But suppose an opinion different, contrarient, their inquiries to these points, and to have reor the very reverse (for that also is possible.) ported accordingly. Instead of that, they had Will the judges rudely declare that you have reported a resolution, which, if adopted, would violated the constitution, unmindful of your be neither a grant nor a denial of the prayer of luty, and regardless of your oath? No. With the petition. In doing this, the committee had hat decency which becomes the Judicial char-exceeded their powers, and proposed a measure acter; that decency which upholds national which the Senate itself was not authorized to lignity and impresses obedience on the public adopt. will; that decency, the handmaid of the graces, Mr. W. took a review of the constitutional which more adorns a magistrate than ermine, I powers of the Senate, in its Legislative and Exiye, than royal robes; with that decency which ecutive capacities, and inquired, Have we any 10 peculiarly befits their state and condition, constitutional authority to make such a request hey will declare what the Legislature meant. of the President? In what part of the constituThey will never presume to believe, much less tion is such power delegated to this House ? o declare, that you meant to violate the con- | Are we to make the request as private gentlemen, ititution. There will be no dangerous and hate- or as a constitutional organ of the Government. ul clashing of public authorities. They will If as private gentlemen, the act would clearly be never question the exercise of that high discre- a nullity; the President would still be at liberty ion with which you are invested. They will to comply with the request, or not, as he might not deny your full supremacy. They will not think proper. If as a constitutional organ of

xamine into your motives, nor assign improper the Government, where is the power given views. They will respect you so long as they to the Senate? And what would be the remedy preserve a due respect for themselves. They if he should refuse to comply? The Senate is will declare, that in assigning duties to one the constitutional adviser of the President in officer, and taking them from another, you have the formation of treaties, and in the appoint

o consult only your own convictions of what ment of officers, &c. The constitution expressly che interest or convenience of the people may declares that the President shall exercise these require. They will modestly conclude, that you powers by and with the advice and consent of lid not mean to abolish the offices which the the Senate. Here, then, it is their right and constitution had forbidden you to abolish; and, their duty to advise him. But the constitution therefore, finding that it was not your intention further says: “He shall take care that the laws to abolish, they will declare that the offices still be faithfully executed." Have the Senate any exist. Such, sir, would be the language of your authority to advise him as to the faithful exesupreme Judiciary, from the high sense they cution of the laws? They can go no further

SENATE.]
Mississippi Question.

[FEBRUARY, 1808 than they are expressly commissioned by the to a close, without any such proposition, be constitution. The specification of particular could not reconcile a longer silence either to Executive powers, by the constitution, is & de- his own sense of propriety or to the duty be nial of all others. Admissio unius est exclusio owed to his constituents. He would not 000alterius ; and, as the constitution has given no sent to go home without making one effort, power to this effect, it follows that no such however feeble or unsuccessful, to avert the • power can be exercised by the Senate. If the calamity which threatened the Western country. courts have power to try the validity of laws Present appearances, he confessed, but little of Congress, they can exercise that power as justified the hope that any thing he might prom well without the authority of this resolution as pose would be adopted, yet it would at least with it. If they have not the power, neither afford him some consolation, hereafter, that he this House nor the Legislature can give it them. had done his duty, when the storm was apThe duties and the powers of the Supreme Court proaching, by warning those who had power are defined by the constitution, Should the Sen- in their hands of the means which ought to be ate, then, adopt the resolution, the Supreme employed to resist it. Court would have no power to act under it, He was fully aware that the Executive of the unless that power is given by the constitution, United States had acted; that he had sent an Let us, then, examine the authority of this court. Envoy Extraordinary to Europe. This was the The constitution says: “In all cases affecting peculiar province, and perhaps the duty of the Ambassadors, other public Ministers, and Con- President. He would not say that it was ansuls, and those in which a State shall be a party, wise in this state of our affairs to prepare for the Supreme Court shall have original jurisdic- remonstrance and negotiation, much less was tion." Will the gentlemen say that these judges he then about to propose any measure that are ambassadors, other public ministers or con- would thwart Ligotiation, or einbarrass the suls, or that they are a state? If not, the Su President. On the other hand, he was convine preme Court can have no jurisdiction of the ed that more than negotiation was absolutely case, and the committee have imposed upon the necessary, that more power and more means Senate & resolution which they had no author ought to be given to the President, in order to ity to submit. As to the law of the last session, render his negotiations efficacious. Could the by which these judges had been deprived of President proceed further, even if he thought their offices, Mr. W. had no fear that the Su-more vigorous measures proper and expedienti preme Court, or any body else would attempt Was it in his power to repel and punish the into set it aside. The whole nation has approved dignity put upon the nation? Could be use the the measure, as many of those who opposed it public force to redress our wrongs ? Certainly have fatally experienced.

not. This must be the act of Congress. They The question on agreeing to the resolution are now to judge of ulterior measures; they was now taken, and determined in the negative must give the power, and vote the means to -yeas 13, nays 15, as follows:

vindicate, in a becoming manner, the wounded YEAS.—Messrs. Dayton, Dwight, Foster, Hillhouse,

honor and the best interests of the country. Howard, J. Mason, Morris, Ogden, Olcott, Plymer,

Mr. R. said, he held in his hands certain reso Ross, Tracy, Wells, and White.

lutions for that purpose, and, before he offered – NAS - "O _

them to the Senate, he would fully explain bis Breckenridge, Brown, Clinton, Cocke, Ellery, T. reasons for bringing them forward a

Canbe 'Ellero " I reasons for bringing them forward and pressing Foster, Jackson, Logan, Nicholas, Stone, Sumter, them with earnestness, as the best system the and Wright.

United States could now pursue. Ordered, That the memorialists have leave It was certainly unnecessary to waste the to withdraw their memorial.

time of that body in stating that we had a

solemn explicit treaty with Spain; that this MONDAY, February 14.

treaty bad been wantonly and unprovokedly

violated, not only in what related to the Missis The Mississippi Question.

sippi, but by the most flagrant, destructive After the Senate had finished its delibera- spoliations of our commerce, on every part of tions upon the Legislative business before it the ocean, where Spanish armed vessels met

Mr. Ross rose and said, that although he the American flag. These spoliations were of came from a part of the country where the late immense magnitude, and demanded the most events upon the Mississippi had excited great serious notice of our Government. They had alarm and solicitude, he had hitherto forborne been followed by an indignity and a direct inthe expression of his sentiments, or to bring fraction of our treaty relative to the Mississippi, forward any measure relative to the unjustifi- which bore an aspect not to be dissembled or able, oppressive conduct of the officers of the mistaken. Spanish Government at New Orleans. He had To the free navigation of that river we lied waited thus long in the hope that some person, an undoubted right from nature, and from the more likely than himself to conciliate and unite position of our Western country. This right, the opinions of a majority of the Senate, would and the right of deposit in the island of New have offered efficacious measures for their con- Orleans, had been solemnly acknowledged and sideration; but, seeing the session now drawing fixed by treaty in 1795. That treaty had been

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