SEVENTH CONGRESS.—FIRST SESSION.

BEGUN AT THE CITY OF WASHINGTON, DECEMBER 7, 1801.

PRESIDENT OF THE UNITED STATES,—THOMAS JEFFERSON.

LIST OF MEMBERS

SENATORS.

New Hampshire.—Simeon Olcott, James Sheafe.

Vermont.—S. R. Bradley, Nathaniel Chipman.

Massachusetts.—Jonathan Mason.

Rhode Island.—Christopher Ellery, Theodore Foster.

Connecticut.—James Hillhouse, Uriah Tracy.

New York.—John Armstrong, G. Morris.

New Jersey.—Aaron Ogden, Jonathan Dayton.

Pennsylvania.—George Logan, Peter Muhlenberg.

Delaware.—William H. Willes, Samuel White.

Maryland.—John E. Howard, Robert Wright.

Virginia.—Stevens T. Mason, Wilson C. Nicholas.

North Carolina.—Jesse Franklin, David Stone.

South Carolina.—John C. Calhoun, Jacob Read.

Georgia.—A. Baldwin, James Jackson.

Tennessee.—William Cocke, Joseph Anderson.

Kentucky.—John Breckenridge, John Browne.

REPRESENTATIVES.

New Hampshire.—Abiel Foster, Joseph Pearce, George B. Upham.

Vermont.—Lewis R. Morris, Israel Smith.

Massachusetts.—John Bacon, Phanuel Bishop, Manasseh Cutler, Richard Cutts, William Eustis, Seth Hastings, Silas Lee, Eben Mattoon, Nathan Read, William Shepard, Josiah Smith, Joseph B. Varnum, P. Wadsworth, Lemuel Williams.

Rhode Island.—Joseph Stanton, Thomas Tillinghast.

Connecticut.—Samuel W. Dana, John Davenport, Calvin Goddard, Roger Griswold, Elias Perkins, John C. Smith, Benjamin Talmadge.

New York.—Theodore Bailey, Lucas Elmendorph, E. Livingston, Samuel L. Mitchill, Thomas Morris, John Smith, David Thomas, Philip Van Cortlandt, John P. Van Ness, Killian K. Van Rensselaer, Benjamin Walker.

New Jersey.—John Condit, Ebenezer Elmer, William Helms, James Mott, Henry Southard.

Pennsylvania.—Thomas Boude, Robert Brown, Andrew Gregg, John A. Hanna, Joseph Heister, Joseph Hemphill, William Hoge, William Jones, Michael Leib, John Smilie, John Stewart, Isaac Van Horne, Henry Woods.

Delaware.—James A. Bayard.

Maryland.—John Archer, John Campbell, John Dennis, Daniel Heister, Joseph H. Nicholson, Thomas Plater, Samuel Smith, Richard Sprigg.

Virginia.—Richard Brent, Samuel J. Cabell, Thomas Claiborne, John Clopton, John Dawson, William B. Giles, Edwin Gray, David Holmes, John Geo. Jackson, Anthony New, Thomas Newton, John Randolph, John Smith, John Stratton, John Taliaferro, Philip E. Thompson, Abram Trigg, John Trigg.

North Carolina.—Willis Alston, William B. Grove, Archibald Henderson, William H. Hill, James Holland, Charles Johnston, Nathaniel Macon, Richard Stanford, John Stanley, Robert Williams.

South Carolina.—William Butler, Benj. Huger, Thomas Lowndes, Thomas Moore, John Rutledge, Thomas Sumter.

Georgia.—John Milledge, Benjamin Taliaferro.

Mississippi.—Narsworthy Hunter.

Tennessee.—William Dickson.

Kentucky.—Thomas T. Davis, John Fowler.

Ohio.—Paul Fearing.

PROCEEDINGS IN THE SENATE.

Monday, December 7, 1801.

The first session of the Seventh Congress of the United States commenced this day, conformably to the constitution, and the Senate assembled at the Capitol in the City of Washington.

PRESENT:

Theodore Foster, from Rhode Island.

Nathaniel Chipman, from Vermont.

William Hill Wells and Samuel White, from Delaware.

John E. Howard, from Maryland.

Stevens Thompson Mason and Wilson Cary Nicholas, from Virginia.

Abraham Baldwin, from Georgia.

Joseph Anderson and William Cooke, from Tennessee.

Stephen R. Bradley, appointed a Senator by the State of Vermont, for the remainder of the term for which their late Senator, Elijah Paine, was appointed; John Breckenridge, appointed a Senator by the State of Kentucky; Christopher Ellery, appointed a Senator by the State of Rhode Island, for the remainder of the term for which their late Senator, Ray Greene, was appointed; James Jackson, appointed a Senator by the State of Georgia; George Logan, appointed a Senator by the Executive of the State of Pennsylvania, in the place of their late Senator, Peter Muhlenberg, resigned; Simeon Olcott, appointed a Senator by the State of New Hampshire, for the remainder of the term for which their late Senator, Samuel Livermore, was appointed; Uriah Tracy, appointed a Senator by the State of Connecticut; and Robert Wright, appointed a Senator by the State of Maryland, severally produced their credentials, and took their seats in the Senate.

The Vice President being absent, the Senate proceeded to the election of a President, pro tempore, as the constitution provides; and Abraham Baldwin was chosen.

The President administered the oath, as the law prescribes, to Mr. Bradley, Mr. Breckenridge, Mr. Ellery, Mr. Jackson, Mr. Olcott, Mr. Tracy, and Mr. Wright, and the affirmation to Mr. Logan.

Ordered, That the Secretary wait on the President of the United States and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the Vice President, they have elected Abraham Baldwin, President of the Senate, pro tempore.

Ordered, That the Secretary acquaint the House of Representatives that a quorum of the Senate is assembled and ready to proceed to business, and that, in the absence of the Vice President, they have elected Abraham Baldwin, President of the Senate, pro tempore.

A message from the House of Representatives informed the Senate that a quorum of the House is assembled, and have elected Nathaniel Macon their Speaker, and are ready to proceed to business.

Ordered, That Messrs. Anderson and Jackson be a committee on the part of the Senate, together with such committee as the House of Representatives may appoint on their part, to wait on the President of the United States and notify him that a quorum of the two Houses is assembled, and ready to receive any communications that he may be pleased to make to them.

A message from the House of Representatives informed the Senate that the House agree to the resolution of the Senate for the appointment of a joint committee to wait on the President of the United States, and have appointed a committee on their part.

Mr. Anderson reported, from the joint committee, that they had waited on the President of the United States and acquainted him that a quorum of both Houses is assembled, and that the President of the United States informed the committee that he would make a communication to them by message to-morrow.

Tuesday, December 8.

Jonathan Dayton and Aaron Ogden, from the State of New Jersey, and Jesse Franklin, from the State of North Carolina, severally attended.

Resolved, That two Chaplains, of different denominations, be appointed to Congress for the present session, one by each House, who shall interchange weekly.

Presidents Message.

The following letter and Message were received from the President of the United States, by Mr. Lewis, his Secretary:

December 8, 1801.

Sir: The circumstances under which we find ourselves at this place rendering inconvenient the mode heretofore practised, of making by personal address the first communications between the Legislative and Executive branches, I have adopted that by Message, as used on all subsequent occasions through the session. In doing this I have had principal regard to the convenience of the Legislature, to the economy of their time, to their relief from the embarrassment of immediate answers, on subjects not yet fully before them, and to the benefits thence resulting to the public affairs. Trusting that a procedure founded in these motives will meet their approbation, I beg leave, through you, sir, to communicate the enclosed Message, with the documents accompanying it, to the honorable the Senate, and pray you to accept, for yourself and them, the homage of my high respect and consideration.[62]

THOMAS JEFFERSON.

The Hon. the President of the Senate.

Fellow-citizens of the Senate, and House of Representatives:

It is a circumstance of sincere gratification to me that, on meeting the great council of our nation, I am able to announce to them, on grounds of reasonable certainty, that the wars and troubles which for so many years afflicted our sister nations, have at length come to an end; and that the communications of peace and commerce are once more opening among them. Whilst we devoutly return thanks to the beneficent Being who has been pleased to breathe into them the spirit of conciliation and forgiveness, we are bound with peculiar gratitude, to be thankful to him that our own peace has been preserved through so perilous a season, and ourselves permitted quietly to cultivate the earth, and to practise and improve those arts which tend to increase our comforts. The assurances, indeed, of friendly disposition, received from all the powers with whom we have principal relations, had inspired a confidence that our peace with them would not have been disturbed. But a cessation of irregularities which had affected the commerce of neutral nations, and of the irritations and injuries produced by them, cannot but add to this confidence, and strengthens, at the same time, the hope that wrongs committed on unoffending friends, under a pressure of circumstances, will now be reviewed with candor, and will be considered as founding just claims of restitution for the past, and new assurances for the future.

Among our Indian neighbors, also, a spirit of peace and friendship generally prevails; and I am happy to inform you that the continued efforts to introduce among them the implements and the practice of husbandry, and of the household arts, have not been without success; that they are becoming more and more sensible of the superiority of this dependence for clothing and subsistence, over the precarious resources of hunting and fishing; and already we are able to announce that, instead of that constant diminution of their numbers, produced by their wars and their wants, some of them begin to experience an increase of population.

To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demands admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace; but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers, having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part. The bravery exhibited by our citizens on that element will, I trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race, and not to its destruction. Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offence also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that, in the exercise of this important function confided by the constitution to the Legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight.

I wish I could say that our situation with all the other Barbary States was entirely satisfactory. Discovering that some delays had taken place in the performance of certain articles stipulated by us, I thought it my duty, by immediate measures for fulfilling them, to vindicate to ourselves the right of considering the effect of departure from stipulation on their side. From the papers which will be laid before you, you will be enabled to judge whether our treaties are regarded by them as fixing at all the measure of their demands, or, as guarding from the exercise of force our vessels within their power; and to consider how far it will be safe and expedient to leave our affairs with them in their present posture.

I lay before you the result of the census lately taken of our inhabitants, to a conformity with which we are now to reduce the ensuing ratio of representation and taxation. You will perceive that the increase of numbers, during the last ten years, proceeding in geometrical ratio, promises a duplication in little more than twenty-two years. We contemplate this rapid growth, and the prospect it holds up to us, not with a view to the injuries it may enable us to do to others in some future day, but to the settlement of the extensive country still remaining vacant within our limits, to the multiplication of men susceptible of happiness, educated in the love of order, habituated to self-government, and valuing its blessings above all price.

Other circumstances, combined with the increase of numbers, have produced an augmentation of revenue arising from consumption, in a ratio far beyond that of population alone; and, though the changes in foreign relations now taking place, so desirably for the whole world, may for a season affect this branch of revenue, yet, weighing all probabilities of expense, as well as of income, there is reasonable ground of confidence that we may now safely dispense with all the internal taxes—comprehending excise, stamps, auctions, licenses, carriages, and refined sugars; to which the postage on newspapers may be added, to facilitate the progress of information; and that the remaining sources of revenue will be sufficient to provide for the support of Government, to pay the interest of the public debts, and to discharge the principals within shorter periods than the laws or the general expectation had contemplated. War, indeed, and untoward events, may change this prospect of things, and call for expenses which the imposts could not meet. But sound principles will not justify our taxing the industry of our fellow-citizens to accumulate treasure for wars to happen we know not when, and which might not, perhaps, happen, but from the temptations offered by that treasure.

These views, however, of reducing our burdens, are formed on the expectation that a sensible, and at the same time a salutary, reduction may take place in our habitual expenditures. For this purpose those of the civil Government, the army, and navy, will need revisal. When we consider that this Government is charged with the external and mutual relations only of these States; that the States themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. I will cause to be laid before you an essay towards a statement of those who, under public employment of various kinds, draw money from the Treasury, or from our citizens. Time has not permitted a perfect enumeration, the ramifications of office being too multiplied and remote to be completely traced in a first trial. Among those who are dependent on Executive discretion, I have begun the reduction of what was deemed unnecessary. The expenses of diplomatic agency have been considerably diminished. The inspectors of internal revenue, who were found to obstruct the accountability of the institution, have been discontinued. Several agencies, created by Executive authority, on salaries fixed by that also, have been suppressed, and should suggest the expediency of regulating that power by law, so as to subject its exercise to Legislative inspection and sanction. Other reformations of the same kind will be pursued with that caution which is requisite, in removing useless things, not to injure what is retained. But the great mass of public offices is established by law, and therefore by law alone can be abolished. Should the Legislature think it expedient to pass this roll in review, and try all its parts by the test of public utility, they may be assured of every aid and light which Executive information can yield. Considering the general tendency to multiply offices and dependencies, and to increase expenses to the ultimate term of burden which the citizens can bear, it behooves us to avail ourselves of every occasion which presents itself for taking off the surcharge; that it never may be seen here that, after leaving to labor the smallest portion of its earnings on which it can subsist, Government shall itself consume the whole residue of what it was instituted to guard.

In our care, too, of the public contributions intrusted to our direction, it would be prudent to multiply barriers against their dissipation, by appropriating specific sums to every specific purpose susceptible of definition; by disallowing all applications of money varying from the appropriation in object, or transcending it in amount; by reducing the undefined field of contingencies, and thereby circumscribing discretionary powers over money; and by bringing back to a single department all accountabilities for money, where the examinations may be prompt, efficacious, and uniform.

An account of the receipts and expenditures of the last year, as prepared by the Secretary of the Treasury, will, as usual, be laid before you. The success which has attended the late sales of the public lands shows that, with attention, they may be made an important source of receipt. Among the payments those made in discharge of the principal and interest of the national debt, will show that the public faith has been exactly maintained. To these will be added an estimate of appropriations necessary for the ensuing year. This last will, of course, be affected by such modifications of the system of expense as you shall think proper to adopt.

A statement has been formed by the Secretary of War, on mature consideration, of all the posts and stations where garrisons will be expedient, and of the number of men requisite for each garrison. The whole amount is considerably short of the present Military Establishment. For the surplus no particular use can be pointed out. For defence against invasion their number is as nothing; nor is it conceived needful or safe that a standing army should be kept up in time of peace, for that purpose. Uncertain as we must ever be of the particular point in our circumference where an enemy may choose to invade us, the only force which can be ready at every point, and competent to oppose them, is the body of neighboring citizens, as formed into a militia. On these, collected from the parts most convenient, in numbers proportioned to the invading force, it is best to rely, not only to meet the first attack, but if it threatens to be permanent, to maintain the defence until regulars may be engaged to relieve them. These considerations render it important that we should, at every session, continue to amend the defects which from time to time show themselves in the laws for regulating the militia, until they are sufficiently perfect: nor should we now, or at any time, separate, until we can say that we have done every thing for the militia which we could do were an enemy at our door.

The provision of military stores on hand will be laid before you, that you may judge of the additions still requisite.

With respect to the extent to which our naval preparations should be carried, some difference of opinion may be expected to appear; but just attention to the circumstances of every part of the Union will doubtless reconcile all. A small force will probably continue to be wanted for actual service in the Mediterranean. Whatever annual sum beyond that you may think proper to appropriate to naval preparations, would perhaps be better employed in providing those articles which may be kept without waste or consumption, and be in readiness when any exigence calls them into use. Progress has been made, as will appear by papers now communicated, in providing materials for seventy-four gun ships, as directed by law.

How far the authority given by the Legislature for procuring and establishing sites for naval purposes, has been perfectly understood and pursued in the execution, admits of some doubt. A statement of the expenses already incurred on that subject is now laid before you. I have, in certain cases, suspended or slackened these expenditures, that the Legislature might determine whether so many yards are necessary as have been contemplated. The works at this place are among those permitted to go on; and five of the seven frigates directed to be laid up, have been brought and laid up here, where, besides the safety of their position, they are under the eye of the Executive Administration, as well as of its agents; and where yourselves also will be guided by your own view in the legislative provisions respecting them, which may, from time to time, be necessary. They are preserved in such condition, as well the vessels as whatever belongs to them, as to be at all times ready for sea at a short warning. Two others are yet to be laid up, as soon as they shall receive the repairs requisite to put them also into sound condition. As a superintending officer will be necessary at each yard, his duties and emoluments, hitherto fixed by the Executive, will be a more proper subject for legislation. A communication will also be made of our progress in the execution of the law respecting the vessels directed to be sold.

The fortifications of our harbors, more or less advanced, present considerations of great difficulty. While some of them are on a scale sufficiently proportioned to the advantages of their position, to the efficacy of their protection, and the importance of the points within it, others are so extensive, will cost so much in their first erection, so much in their maintenance, and require such a force to garrison them, as to make it questionable what is best now to be done. A statement of those commenced or projected; of the expenses already incurred; and estimates of their future cost, as far as can be foreseen, shall be laid before you, that you may be enabled to judge whether any alteration is necessary in the laws respecting this subject.

Agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are then most thriving when left most free to individual enterprise. Protection from casual embarrassments, however, may sometimes be seasonably interposed. If, in the course of your observations or inquiries, they should appear to need any aid within the limits of our constitutional powers, your sense of their importance is a sufficient assurance they will occupy your attention. We cannot, indeed, but all feel an anxious solicitude for the difficulties under which our carrying trade will soon be placed. How far it can be relieved, otherwise than by time, is a subject of important consideration.

The Judiciary system of the United States, and especially that portion of it recently erected, will, of course, present itself to the contemplation of Congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid.

And while on the Judiciary organization, it will be worthy of your consideration whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property. Their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those States where they are named by a marshal depending on Executive will, or designated by the court, or by officers dependent on them.

I cannot omit recommending a revisal of the laws on the subject of naturalization. Considering the ordinary chances of human life, a denial of citizenship under a residence of fourteen years, is a denial to a great proportion of those who ask it; and controls a policy pursued, from their first settlement, by many of these States, and still believed of consequence to their prosperity. And shall we refuse to the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our fathers arriving in this land? Shall oppressed humanity find no asylum on this globe? The constitution, indeed, has wisely provided that, for admission to certain offices of important trust, a residence shall be required sufficient to develope character and design. But might not the general character and capabilities of a citizen be safely communicated to every one manifesting a bona fide purpose of embarking his life and fortunes permanently with us? with restrictions, perhaps, to guard against the fraudulent usurpation of our flag? an abuse which brings so much embarrassment and loss on the genuine citizen, and so much danger to the nation of being involved in war, that no endeavor should be spared to detect and suppress it.

These, fellow-citizens, are the matters respecting the state of the nation which I have thought of importance to be submitted to your consideration at this time. Some others of less moment, or not yet ready for communication, will be the subject of separate Messages. I am happy in this opportunity of committing the arduous affairs of our Government to the collected wisdom of the Union. Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution. The prudence and temperance of your discussions will promote, within your own walls, that conciliation which so much befriends rational conclusion; and by its example will encourage among our constituents that progress of opinion which is tending to unite them in object and in will. That all should be satisfied with any one order of things, is not to be expected; but I indulge the pleasing persuasion that the great body of our citizens will cordially concur in honest and disinterested efforts, which have for their object to preserve the General and State Governments in their constitutional form and equilibrium; to maintain peace abroad, and order and obedience to the laws at home; to establish principles and practices of administration favorable to the security of liberty and property, and to reduce expenses to what is necessary for the useful purposes of Government.

THOMAS JEFFERSON.

December 8, 1801.

The Letter and Message were read, and ordered to be printed for the use of the Senate.

The papers referred to in the Message were in part read, and the Senate adjourned.

Wednesday, December 9.

The Senate proceeded to the appointment of a Chaplain to Congress on their part, and the Rev. Mr. Gantt was elected.

Thursday, December 10.

Resolved, That James Mathers, Sergeant-at-Arms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ one additional assistant, and two horses, for the purpose of performing such services as are usually required of the Doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for the purpose during the session, and for twenty days after.

Friday, December 11.

Johnathan Mason, from the State of Massachusetts, and James Sheafe, from the State of New Hampshire, severally attended.

Monday, December 14.

James Hillhouse, from the State of Connecticut, and Dwight Foster, from the State of Massachusetts, severally attended.

A message from the House of Representatives informed the Senate that the House have elected the Reverend William Parkinson a Chaplain to Congress on their part.

Saturday, December 19.

Gouverneur Morris, from the State of New York, attended.

Thomas Sumter, appointed a Senator by the Legislature of the State of South Carolina, in the place of their late Senator, Charles Pinckney, resigned, produced his credentials, was qualified, and took his seat in the Senate.

Monday, December 21.

The credentials of George Logan, appointed a Senator by the Legislature of the State of Pennsylvania, were presented and read; and the affirmation prescribed by law was administered by the President.

Tuesday, December 22.

David Stone, from the State of North Carolina, attended.

Monday, December 28.

John Ewing Colhoun, appointed a Senator by the Legislature of the State of South Carolina, produced his credentials, was qualified, and took his seat in the Senate.

Thursday, December 31.

Mr. Breckenridge presented the petition of Isaac Zane, stating that he was made a prisoner at the age of nine years by the Wyandot Indians, with whom he remained until he became of age; had a family by a woman of that nation, and a tract of land was assigned him by the said nation, on a branch of the Great Miami, and which tract of land was ceded to the United States by a recent treaty with the said Wyandot Indians, and praying such relief as may be deemed equitable; and the petition was read, and committed to Messrs. Breckenridge, Tracy, and Ogden, to consider and report thereon.

Tuesday, January 5, 1802.

Mr. Brown, from the State of Kentucky, attended.

Reporting the Debates.

The President laid before the Senate a letter signed Samuel H. Smith, stating that he was desirous of taking notes of the proceedings of the Senate, in such manner as to render them correct: Whereupon,

Resolved, That any stenographer desirous to take the debates of the Senate on Legislative business, may be admitted for that purpose, at such place within the area of the Senate Chamber as the President may allot:

And, on motion to reconsider the above resolution, it passed in the affirmative—yeas 17, nays 9.

Yeas.—Messrs. Anderson, Breckenridge, Cocke, Dayton, Ellery, Dwight Foster, Hillhouse, Howard, Logan, Jonathan Mason, Morris, Ogden, Olcott, Sumter, Tracy, White, and Wright.

Nays.—Messrs. Baldwin, Brown, Chipman, T. Foster, Franklin, Jackson, Nicholas, Sheafe, and Stone.

On motion, to amend the resolution, by adding, after the word stenographer, "He having given bond in the sum of ——, with two sufficient sureties, in the sum of —— each, for his good conduct," it passed in the negative—yeas 10, nays 18, as follows:

Yeas.—Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, Morris, Ogden, Olcott, Sheafe, and Tracy.

Nays.—Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, J. Mason, Nicholas, Stone, Sumter, White, and Wright.

On motion, to agree to the original resolution, amended by adding the words "or note-taker," after the words stenographer, it passed in the affirmative—yeas 16, nays 12, as follows:

Yeas.—Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright.

Nays.—Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Sheafe, Tracy, and White.

So it was Resolved, That any stenographer, or note-taker, desirous of taking the debates of the Senate on Legislative business, may be admitted for that purpose at such place, within the area of the Senate Chamber, as the President shall allot.[63]

Wednesday, January 6.

Judiciary System.

Mr. Mason called for the reading of the Message, which was in part read; when the further reading of the whole document was suspended, and that part only read, which relates to the Judiciary System.

Upon which Mr. Breckenridge, from Kentucky, rose, and stated that two days ago he had given notice that on this day he would submit to the consideration of the Senate two resolutions respecting the Judiciary Establishment of the United States. As, however, those resolutions were not necessarily connected, and as they might be distinctly discussed, he would at present confine himself to moving the first resolution; without however foreclosing to himself the right of submitting the second after the disposition of the first. He, therefore, moved that the act passed last session respecting the Judiciary Establishment of the United States be repealed.

[This is the act which created sixteen new circuit judges.]

Friday, January 8.

Judiciary System.

Agreeably to the order of the day, the Senate proceeded to the consideration of the motion made on the 6th instant, to wit:

"That the act of Congress passed on the 13th day of February, 1801, entitled 'An act to provide for the more convenient organization of the Courts of the United States,' ought to be repealed."[64]

Mr. Breckenridge then rose and addressed the President, as follows:

It will be expected of me, I presume, sir, as I introduced the resolution now under consideration, to assign my reasons for wishing a repeal of this law. This I shall do; and shall endeavor to show:

1. That the law is unnecessary and improper, and was so at its passage; and

2. That the courts and judges created by it, can and ought to be abolished.

1st. That the act under consideration was unnecessary and improper, is, to my mind, no difficult task to prove. No increase of courts or judges could be necessary or justifiable, unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them. To hold out a show of litigation, when in fact little exists, must be impolitic; and to multiply expensive systems, and create hosts of expensive officers, without having experienced an actual necessity for them, must be a wanton waste of the public treasure.

The document before us shows that, at the passage of this act, the existing courts, not only from their number, but from the suits depending before them, were fully competent to a speedy decision of those suits. It shows, that on the 15th day of June last, there were depending in all the circuit courts, (that of Maryland only excepted, whose docket we have not been furnished with,) one thousand five hundred and thirty-nine suits. It shows that eight thousand two hundred and seventy-six suits of every description have come before those courts, in ten years and upwards. From this it appears, that the annual average amount of suits has been about eight hundred.

But sundry contingent things have conspired to swell the circuit court dockets. In Maryland, Virginia, and in all the Southern and South-western States, a great number of suits have been brought by British creditors; this species of controversy is nearly at an end.

In Pennsylvania, the docket has been swelled by prosecutions in consequence of the Western insurrection, by the disturbances in Bucks and Northampton Counties: and by the sedition act. These I find amount in that State to two hundred and forty suits.

In Kentucky, non-resident land claimants have gone into the federal court from a temporary convenience: because, until within a year or two past, there existed no court of general jurisdiction co-extensive with the whole State. I find, too, that of the six hundred and odd suits which have been commenced there, one hundred and ninety-six of them have been prosecutions under the laws of the United States.

In most of the States there have been prosecutions under the sedition act. This source of litigation is, I trust, for ever dried up. And, lastly, in all the States a number of suits have arisen under the excise law; which source of controversy will, I hope, before this session terminates, be also dried up.

But this same document discloses another important fact; which is, that notwithstanding all these untoward and temporary sources of federal adjudication, the suits in those courts are decreasing; for, from the dockets exhibited (except Kentucky and Tennessee, whose suits are summed up in the aggregate) it appears, that in 1799 there were one thousand two hundred and seventy-four, and in 1800 there were six hundred and eighty-seven suits commenced; showing a decrease of five hundred and eighty-seven suits.

Could it be necessary then to increase courts when suits were decreasing? Could it be necessary to multiply judges, when their duties were diminishing? And will I not be justified, therefore, in affirming, that the law was unnecessary, and that Congress acted under a mistaken impression, when they multiplied courts and judges at a time when litigation was actually decreasing?

But, sir, the decrease of business goes a small way in fixing my opinion on this subject. I am inclined to think, that so far from there having been a necessity at this time for an increase of courts and judges, that the time never will arrive when America will stand in need of thirty-eight federal judges. Look, sir, at your constitution, and see the judicial power there consigned to federal courts, and seriously ask yourself can there be fairly extracted from those powers subjects of litigation sufficient for six supreme and thirty-two inferior court judges? To me it appears impossible.

The judicial powers given to the federal courts were never intended by the constitution to embrace, exclusively, subjects of litigation, which could, with propriety, be left with the State courts. Their jurisdiction was intended principally to extend to great national and foreign concerns. Except cases arising under the laws of the United States, I do not at present recollect but three or four kinds in which their power extends to subjects of litigation, in which private persons only are concerned. And can it be possible, that with a jurisdiction embracing so small a portion of private litigation, in a great part of which the State courts might, and ought to participate, that we can stand in need of thirty-eight judges, and expend in judiciary regulations the annual sum of $137,000?

No other country, whose regulations I have any knowledge of, furnishes an example of a system so prodigal and extensive. In England, whose courts are the boast, and said to be the security of the rights of the nation, every man knows there are but twelve judges and three principal courts. These courts embrace, in their original or appellate jurisdiction, almost the whole circle of human concerns.

The King's Bench and Common Pleas, which consist of four judges each, entertain all the common law suits of 40s. and upwards, originating among nine millions of the most commercial people in the world. They moreover revise the proceedings of not only all the petty courts of record in the kingdom, even down to the courts of piepoudre, but also of the Court of King's Bench in Ireland; and these supreme courts, after centuries of experiment, are found to be fully competent to all the business of the kingdom.

I will now inquire into the power of Congress to put down these additional courts and judges.

First, as to the courts, Congress are empowered by the constitution "from time to time, to ordain and establish inferior courts." The act now under consideration, is a legislative construction of this clause in the constitution, that Congress may abolish as well as create these judicial officers; because it does expressly, in the twenty-seventh section of the act, abolish the then existing inferior courts, for the purpose of making way for the present. This construction, I contend, is correct; but it is equally pertinent to my object, whether it be or be not. If it be correct, then the present inferior courts may be abolished as constitutionally as the last; if it be not, then the law for abolishing the former courts, and, establishing the present, was unconstitutional, and consequently repealable.

But independent of this legislative construction, on which I do not found my opinion, nor mean to rely my argument, there is little doubt indeed, in my mind, as to the power of Congress on this law. The first section of the third article vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress may, from time to time, ordain and establish. By this clause Congress may, from time to time, establish inferior courts; but it is clearly a discretionary power, and they may not establish them. The language of the constitution is very different when regulations are not left discretional. For example, "The trial," says the constitution, "of all crimes '(except in cases of impeachment) shall be by jury: representatives and direct taxes shall be apportioned according to numbers. All revenue bills shall originate in the House of Representatives,'" &c. It would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although Congress may, from time to time, establish inferior courts, yet, when established, that they shall not be abolished by a subsequent Congress possessing equal powers. It would be a paradox in legislation.

2d. As to the judges. The Judiciary Department is so constructed as to be sufficiently secured against the improper influence of either the Executive or Legislative Departments. The courts were organized and established by the Legislature, and the Executive creates the judges. Being thus organized, the constitution affords the proper checks to secure their honesty and independence in office. It declares they shall not be removed from office during good behavior; nor their salaries diminished during their continuance in office. From this it results, that a judge, after his appointment, is totally out of the power of the President, and his salary secured against legislative diminution, during his continuance in office. The first of these checks, which protects a judge in his office during good behavior, applies to the President only, who would otherwise have possessed the power of removing him, like all other officers, at pleasure; and the other check, forbidding a diminution of their salaries, applies to the Legislature only. They are two separate and distinct checks, furnished by the constitution against two distinct departments of the Government; and they are the only ones which are or ought to have been furnished on the subject.

But because the constitution declares that a judge shall hold his office during good behavior, can it be tortured to mean, that he shall hold his office after it is abolished? Can it mean, that his tenure should be limited by behaving well in an office which did not exist? Can it mean that an office may exist, although its duties are extinct? Can it mean, in short, that the shadow, to wit, the judge, can remain, when the substance, to wit, the office, is removed? It must have intended all these absurdities, or it must admit a construction which will avoid them.

The construction obviously is, that a judge should hold an existing office, so long as he did his duty in that office; and not that he should hold an office that did not exist, and perform duties not provided by law. Had the construction which I contend against been contemplated by those who framed the constitution, it would have been necessary to have declared, explicitly, that the judges should hold their offices and their salaries during good behavior.

Let me not be told, sir, that the salaries in the present case are inconsiderable, and ought not to be withheld; and that the doctrine is not a dangerous one. I answer, it is the principle I contend against; and if it is heterodox for one dollar, it is equally so for a million. But I contend the principle, if once admitted, may be extended to destructive lengths. Suppose it should hereafter happen, that those in power should combine to provide handsomely for their friends, could any way so plain, easy, and effectual, present itself, as by creating courts, and filling them with those friends? Might not sixty as well as sixteen, with salaries of twenty thousand, instead of two thousand dollars, be provided for in this way?

There is another difficulty under this construction still to encounter, and which also grows out of the constitution: By the constitution, a new State may be formed by the junction of two or more States, with their assent and that of Congress. If this doctrine, once a judge and always a judge, be correct, what would you do in such an event, with the district judges of the States who formed that junction? Both would be unnecessary, and you would have, in a single State, two judges of equal and concurrent jurisdiction; or one a real judge, with an office, and another a quasi judge, without an office. The States also forming such junction, would be equally embarrassed with their State judges; for the same construction would be equally applicable to them.

Upon this construction, also, an infallibility is predicated, which it would be arrogance in any human institution to assume, and which goes to cut up legislation by the roots. We would be debarred from that which is indulged to us from a higher source, and on subjects of higher concern than legislation; I mean a retraction from and correction of our errors. On all other subjects of legislation we are allowed, it seems, to change our minds, except on judiciary subjects, which, of all others, are the most complex and difficult. I appeal to our own statute book to prove this difficulty: for in ten years Congress have passed no less than twenty-six laws on this subject.

Mr. J. Mason, of Massachusetts, said, it would be agreed on all hands that this was one of the most important questions that ever came before a Legislature. Were he not of this opinion he would not have risen to offer his sentiments. But he felt so deep an interest in the question, and from the respect which he entertained for the district of country he represented, he deemed it his duty to meet the subject, and not be satisfied with giving to it his silent negative.

The constitution, in the construction of the Executive, Legislative, and Judiciary Departments, had assigned to each a different tenure. The President was chosen for four years; the Senate for six years, subject to a prescribed rotation biennially; the House of Representatives for two years; and the Judiciary during good behavior. It says to the President, at the expiration of every four years, you shall revert to the character of a private citizen, however splendid your talents or conspicuous your virtue. Why? Because you have assigned to you powers which it is dangerous to exercise. You have the power of creating offices and officers. You have prerogatives. The temptation to an abuse of your power is great. Such has been the uniform experience of ages. The constitution holds the same language to the Senate and House of Representatives: It says, it is necessary for the good of society that you also should revert at short periods to the mass of the people, because to you are consigned the most important duties of Government, and because you hold the purse-strings of the nation.

To the Judiciary: What is the language applied to them? The judges are not appointed for two, four, or any given number of years; but they hold their appointments for life, unless they misbehave themselves. Why? For this reason: They are not the depositaries of the high prerogatives of Government. They neither appoint to office, nor hold the purse-strings of the country, nor legislate for it. They depend entirely upon their talents, which is all they have to recommend them. They cannot, therefore, be disposed to pervert their power to improper purposes. What are their duties? To expound and apply the laws. To do this with fidelity and skill, requires a length of time. The requisite knowledge is not to be procured in a day. These are the plain and strong reasons which must strike every mind, for the different tenure by which the judges hold their offices, and they are such as will eternally endure wherever liberty exists.

On examination, it will be found that the people, in forming their constitution, meant to make the judges as independent of the Legislature as of the Executive. Because the duties which they have to perform, call upon them to expound not only the laws, but the constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the constitution. For this reason it was more important that the judges in this country should be placed beyond the control of the Legislature, than in other countries where no such power attaches to them.

The constitution says: "The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

Thus it says, "the judges shall hold their offices during good behavior." How can this direction of the constitution be complied with, if the Legislature shall, from session to session, repeal the law under which the office is held, and remove the office? He did not conceive that any words, which human ingenuity could devise, could more completely get over the remarks that had been made by the gentleman from Kentucky. But that gentleman says, that this provision of the constitution applies exclusively to the President. He considers it as made to supersede the powers of the President to remove the judges. But could this have been the contemplation of the framers of the constitution, when even the right of the President to remove officers at pleasure, was a matter of great doubt, and had divided in opinion our most enlightened citizens. Not that he stated this circumstance because he had doubts. He thought the President ought to have the right; but it did not emanate from the constitution; was not expressly found in the constitution, but sprang from Legislative construction.

Besides, if Congress have the right to repeal the whole of the law, they must possess the right to repeal a section of it. If so, they may repeal the law so far as it applies to a particular district, and thus get rid of an obnoxious judge. They may remove his office from him. Would it not be absurd still to say, that the removed judge held his office during good behavior?

The constitution says: "The judges shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Why this provision? Why guard against the power to deprive the judges of their pay in a diminution of it, and not provide against what was more important, their existence?

Still, if the gentlemen would not agree with him as to the unconstitutionality of the measure proposed, he would ask, was it expedient? Were there not great doubts existing throughout the United States? Ought not each gentleman to say, though I may have no doubts or hesitancy, are not a large portion of our citizens of opinion that it would violate the constitution? If this diversity of sentiment exists, ought not the evils under the judiciary law to be very great before we touch it? Ought we not to aim at harmonizing, instead of dividing our citizens? Was not the constitution a sacred instrument; an instrument ever to be approached with reverence; an instrument which ought not lightly to be drawn from its hallowed retreat, and subjected to the flux and reflux of passion? But where is the evil complained of? This system was established only last session; scarcely had it been yet originated; scarcely had we tried it on its very threshold; where then the necessity of being so pointed, as to destroy a system scarcely formed three days ago? Does not this manifest precipitation? Will it not manifest more magnanimity, more rationality, to abide by it until we try it; instead of taking up a pen and dashing it out of existence?

Mr. Morris, of New York.—Mr. President, I am so very unfortunate, that the arguments in favor of the motion have confirmed my opinion that the law to which it refers ought not to be repealed. The honorable mover has rested his proposition on two grounds:

1st. That the judiciary law passed last session is unnecessary; and,

2dly. That we have a right to repeal it, and ought to exercise that right.

Gentlemen say, recur to the ancient system. What is the ancient system? Six judges of the Supreme Court to ride the circuit of America twice a year, and sit twice a year at the seat of Government. Without inquiring into the accuracy of a statement made by the gentleman respecting the courts of England, in which, I apprehend, he will find himself deceived, let me ask what would be the effects of the old system here? Cast an eye over the extent of our country, and a moment's consideration will show that the First Magistrate, in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy. Can it be possible that men advanced in years, (for such alone can have the maturity of judgment fitting for the office;) that men educated in the closet—men who, from their habits of life, must have more strength of mind than of body; is it, I say, possible that such men can be running from one end of the continent to the other? Or, if they could, can they find time to hear and decide causes? I have been told by men of eminence on the bench, that they could not hold their offices under the old arrangement.

What is the present system? You have added to the old judges seven district and sixteen circuit judges. What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be, that the check established by the constitution, wished for by the people, and necessary in every contemplation of common sense, is destroyed. It had been said, and truly, too, that Governments are made to provide against the follies and vices of men. For to suppose that Governments rest upon reason is a pitiful solecism. If mankind were reasonable, they would want no Government. Hence, checks are required in the distribution of the power among those who are to exercise it for the benefit of the people. Did the people of America vest all power in the Legislature? No; they had vested in the judges a check intended to be efficient—a check of the first necessity, to prevent an invasion of the constitution by unconstitutional laws—a check which might prevent any faction from intimidating or annihilating the tribunals themselves.

On this ground, said Mr. Morris, I stand to arrest the victory meditated over the constitution of my country; a victory meditated by those who wish to prostrate that constitution for the furtherance of their own ambitious views. Not of him who had recommended this measure, nor of those who now urge it; for, on his uprightness and their uprightness, I have the fullest reliance; but of those in the background who have further and higher objects. These troops that protect the outworks are to be first dismissed. Those posts which present the strongest barriers are first to be taken, and then the constitution becomes an easy prey.

Let us then, secondly, consider whether we have constitutionally a power to repeal this law. [Here Mr. Morris quoted the third article and first section of the constitution.] I have heard a verbal criticism about the words shall and may, which appeared the more unnecessary to me, as the same word, shall, is applied to both members of the section. For it says: "the judicial power, &c. shall be vested in one Supreme Court and such inferior courts as the Congress may, from time to time, ordain and establish." The Legislature, therefore, had, without doubt, the right of determining, in the first instance, what inferior courts should be established; but when established, the words are imperative, a part of the judicial power shall vest in them. And "the judges shall hold their offices during good behavior." They shall receive a compensation which shall not be diminished during their continuance in office. Therefore, whether the remarks be applied to the tenure of office, or the quantum of compensation, the constitution is equally imperative. After this exposition, gentlemen are welcome to any advantage to be derived from the criticism on shall and may.

Monday, January 11.

Apportionment Bill.

The Apportionment bill, as received from the House of Representatives, was taken up. This bill fixes the ratio of representation at one member for every 33,000 persons in each State.

Mr. Wells moved to strike out 33,000, his object being to introduce 30,000, for which he assigned his reasons at some length.

On this motion a debate of some length ensued, in which the provisions of the bill as they stood were supported by Messrs. Jackson, Mason, Wright, and Cocke; and opposed by Messrs. Wells and Hillhouse.

Mr. White, of Delaware.—Believing as I do, sir, that the minds of gentlemen on this floor are thoroughly made up as to the present subject, and that any observations now to be offered will not influence a single vote, but merely occupy the time of the Senate to no useful purpose, I shall ask your indulgence but a few moments. I cannot, sir, sit quietly and see this bill reported by your committee, meditating as it certainly does a manifest injury to the State I have the honor in part to represent, pass into a law, without doing more than oppose to it a silent negative; without holding up my voice and protesting most solemnly against the extreme injustice of the measure. If, sir, this bill passes in its present shape, there will be left in the State of Delaware twenty-eight thousand eight hundred and eleven people unrepresented in the popular branch of their Legislature. Gentlemen may say, that this is only a fraction, and that in a general apportionment of representation, fractional numbers are unavoidable. Sir, I acknowledge it is only a fraction, but it is a fraction that includes one-half the population of that State, and amounts, even upon the present contemplated plan, to within four thousand of the number sufficient to gain another Representative. Sir, twenty-eight or thirty thousand would, to one of the large States, be an inconsiderable fraction. Apportion that number, for instance, among the twenty-one Representatives from Virginia, and you give to each member but a fraction of about thirteen hundred; whereas from Delaware, there will be but one representative, and over and above his legal number a fraction of near twenty-nine thousand people unrepresented. Is this fair, sir? Is this equitable? I ask, gentlemen, is it not unfriendly and wrongful? And can it be possible, sir, that the transcendent omnipotence of a majority have fated, if I may use the expression, this injustice upon a sister State? Suppose, sir, Delaware to have but one Representative and Virginia twenty, a fraction of five thousand to the former is equal to a redundant number of one hundred thousand to the latter; or take, sir, the present case, and you will find that the fraction of twenty-nine thousand in the State of Delaware, apportioned upon the representation, is at least equal to a redundant number in the State of Virginia of three hundred thousand. If, sir, the divisor is fixed at thirty thousand, Delaware will have two Representatives; her weight, then, in the other House, will, in relation to Virginia, be as one to twelve, but if she is compelled to submit to the divisor of thirty-three thousand, you allow her but one Representative; you deny her nearly one-half her rightful influence, and place her on the floor of the House of Representatives in a relative situation toward Virginia, as one to twenty-one. Sir, an additional Representative to any of the larger States is not of the same consequence as another would be to Delaware. To Virginia, for instance, one is but the twentieth part of her force, to Delaware it would be one-half her force. Gentlemen may say that Delaware is the smallest State; but let it be remembered, sir, that her rights are equally sacred with those of the largest States; and although her citizens are not so numerous, yet, sir, their State sovereignty and other constitutional rights are quite as dear and valuable to them, as the blessing can be to any other people; and, let me add, sir, she is among the oldest States; her history travels back through the bloody scenes of your Revolution; she dates her era at your Declaration of Independence, and I am proud to say, and can do so without detracting from her neighbors, in proportion to her population, her resources, and extent, during the severe contest for American liberty, she contributed, in blood and treasure, as freely to its support and permanent establishment, as any State in the Union.

Sir, the doctrine urged by some gentlemen that the divisor of thirty thousand will increase the House of Representatives to a body too large and unwieldy for the convenient and ordinary purposes of business, seems to me totally without foundation. The observation and experience of every man must be sufficient at once to satisfy him that this cannot be the consequence; we have before our eyes, sir, examples that prove directly the reverse. This divisor will give to your House of Representatives but one hundred and fifty-seven members; the State of Virginia has in the popular branch of her Legislature one hundred and eighty members, and we have not been told that it is too numerous. The British House of Commons, before the union with Ireland, consisted of about five hundred and fifty members, and we heard no complaint of the numbers; on the contrary, sir, the nation wished a fuller representation; and it is from that House, too, sir, that, according to this logic, must be so extremely riotous and disorderly, we have drawn most of the rules that govern the proceedings of this honorable body.

Again, sir, the nature and spirit of your Government requires a full representation in the Legislature. It is a Government that must depend alone for its support upon the affections of the people; and the best security for their affections is to extend to them, upon as large a scale as comports with the public safety, the freedom of choice, and right of representation. In so extensive a country as this, many parts of which are thinly inhabited, and the election districts consequently including vast tracts of territory, it must often happen that the electors are entirely unacquainted with the person for whom they vote; but if you increase the representation, you reduce the size of the election districts; you bring the candidate within the very neighborhood of the electors; they see him, they know him; they are better enabled to estimate truly his character, and judge of his capacity and disposition to serve them. This, sir, will secure in a great degree, the constituent from imposition, and attach to the Representative a higher and more immediate responsibility; it will inspire the people with confidence in your Government, and induce them more cheerfully to acquiesce in your laws. But, above all, sir, the divisor of thirty thousand leaves throughout the United States a less aggregate of unrepresented fractions than any divisor you can take; less, permit me to say, sir, by one hundred and sixteen thousand, than the one contemplated in the bill; and I am sure gentlemen on all sides of the House wish the country as fairly represented as possible. To my mind this is a most conclusive argument in favor of the divisor of thirty thousand.

The question was now taken on the motion to strike out 33,000, and lost—ayes 11, noes 15.

Mr. Morris then moved, and Mr. Tracy seconded the motion to add, after "one representative for every 33,000," the words "and one representative for every fractional number of 27,000 persons." The number 27,000 was used to avoid a violation of the constitution, which prohibits the allotting to each State more representatives than one for every 30,000. Thus, in the case of Delaware, the ratio being 33,000, Delaware would be entitled to one member for 33,000, and one for the fraction of 27,000: both which numbers would amount to 60,000; which last number entitled a State to two members without violating the constitution. This motion was opposed by Messrs. Wright and Anderson, and was lost—ayes 10, noes 15.

On the question to agree to the final passage of this bill, it was determined in the affirmative—yeas 23, nays 5, as follows:

Yeas.—Messrs. Anderson, Baldwin, Breckenridge, Brown, Chipman, Cocke, Colhoun, Dayton, Ellery, T. Foster, Dwight Foster, Franklin, Howard, Jackson, Logan, S. T. Mason, J. Mason, Morris, Nicholas, Sheafe, Stone, Sumter, and Wright.

Nays.—Messrs. Hillhouse, Olcott, Tracy, Wells, and White.

The bill was then read a third time, and passed.

Tuesday, January 12

Judiciary System.

The Senate resumed the consideration of the motion made on the 6th instant, "That the act of Congress passed on the 13th day of February, 1801, entitled 'An act to provide for the more convenient organization of the Courts of the United States,' ought to be repealed."

Mr. Jackson, of Georgia.—I rise with an impression of awe on the present question; for we must tread on constitutional ground, which should not be lightly touched on, nor too hastily decided. Every step we take ought to be well examined, and our minds convinced before we give that vote which cannot be recalled, and which will fix a principle on Legislative construction, which, perhaps, will prevail as long as we remain a nation.

In the early stage of this discussion, I had almost determined to say nothing, and am at present determined not to say much; but a justification of the vote I shall give, has impelled me to offer my reasons for it to the State I represent; and I have made up my mind, decidedly, to vote for the resolution before you, if I cannot be otherwise convinced.

We have been asked, if we are afraid of having an army of judges? For myself, I am more afraid of an army of judges, under the patronage of the President, than of an army of soldiers. The former can do us more harm. They may deprive us of our liberties, if attached to the Executive, from their decisions; and from the tenure of office contended for, we cannot remove them; while the soldier, however he may act, is enlisted, or if not enlisted, only subsisted for two years; whilst the judge is enlisted for life, for his salary cannot be taken from him. [See 12th division, 8th Section, 1st Art. Constitution.] Sir, it is said these evils will not happen. But what security have we for the truth of the declaration? Have we not seen sedition laws? Have we not heard judges crying out through the land sedition! and asking those whose duty it was to inquire, is there no sedition here? It is true, the sedition law had expired with the last Administration, and he trusted it would not exist, or at least be acted on, under the virtuous Jefferson. But hereafter, if it should exist, your judges, under the cry of sedition and political heresy, may place half your citizens in irons. I thank God, that no such law now exists, or is likely to exist. I thank God, that we are not now under the influence of an intolerant clergy, as is evident from their abuse of the President; and that we are not under dread of the patronage of judges, is manifest, from their attack on the Secretary of State. And I trust, that we shall long keep this patronage off, by not sanctioning the religious persecution of the clergy on the one hand, nor the political violence of the judges on the other.

But, upon the principles of gentlemen, the law which creates a judge cannot be touched. The moment it is passed, it exists to the end of time. What is the implication of this doctrine? To alter or amend what may greatly require alteration or amendment, it is necessary to return to the creator, and to inquire what this creator is. My principle is, that the creator is the people themselves; that very people of the United States whom the gentleman from New York had declared ourselves to be the guardians of, to save the people themselves from their greatest enemies; and to save whom from destroying themselves he had invoked this House. Good God! is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia, than to have heard it uttered by an enlightened legislator of a free country, and on this floor.

I am clearly, therefore, of opinion, that if the power to alter the Judiciary system vests not here, it vests nowhere. It follows, from the ideas of gentlemen, that we must submit to all the evils of the present system, though it should exhibit all the horrors of the Inquisition.

But, said Mr. J., gentlemen say the United States embrace a vast extent of territory, from fifteen to seventeen thousand miles in length. What is the inevitable deduction to be drawn from this fact? Why, that a system which is to apply to this extent of country, embracing different laws and different habits, will require frequent alterations: whereas, if we are tied down to a system of inferior tribunals once formed, we cannot even touch the plan of the Judicial system of the little District of Columbia. Nor can we touch the inferior jurisdictions in the North-western Territory, nor in the Mississippi Territory, in both of which the systems were acknowledged to be adapted only to present circumstances, and in the last of which the rights of Georgia were implicated. It follows, that whatever these rights may be, the system is sacred; and, as to the Mississippi Territory, if grounded on this doctrine, notwithstanding the claim of Georgia, her jurisdiction is totally lost. To revert to the sedition law. If the doctrine supported now were true, then, had the sedition law been incorporated as a system by itself, an inferior tribunal, and officers been attached to it, would it have been perpetually tacked to the constitution? That law under which so many of our citizens have been imprisoned for writings and speakings; and one, among others, for wishing that the wadding of a gun had been lodged in a certain Presidential part.

The gentleman had dwelt on the inconveniences and evils of the old system, and had particularly condemned that part of it, which, as he termed it, had converted the judges into post-boys. But I will appeal to the gentleman, if in England, where so much more business is done, there are more than twelve judges, and whether those judges do not ride the circuit? And why shall our judges not ride the circuits? Shall we have six judges sitting here to decide cases which require a knowledge of the laws, the morals, the habits, the state of the property of the several States? Would not this knowledge be much better obtained by their riding the circuits, and in the States themselves, making themselves acquainted with whatever relates to them, and the cases of appeals to come before them? It has been remarked by a celebrated writer on the English Constitution, that one of the greatest political evils that could befall a people, was the existence of large judiciary bodies. To illustrate his ideas, he had instanced the Parliaments of France. If the spirit which last session gave existence to sixteen new judges continued, who could say by what number they would be limited? They might indeed soon become, what they had been likened to, an army of judges.

I do not wish to be severe in my remarks on the conduct of the late Administration. I admire the private character of Mr. Adams. But I do believe the succession of his political acts tended ultimately to accumulate in, and attach all powers to, a particular person or favorite family.

If I wished to bestow on Mr. Jefferson this mass of patronage, which I contend this horde of officers bestows, I should be in favor of the bill that it is now moved to repeal; but, as a political person, I am no more for Thomas Jefferson than for John Adams. When he acts, according to my opinion, right, I will support him; when wrong, oppose him; and I trust a majority on this floor will act in the same way.

Mr. Tracy, of Connecticut.—Feeble as I am, I have thought it my duty to offer my sentiments on this subject. Owing to severity of indisposition, I have not been in my place, nor have I heard any of the discussion. This circumstance will be my apology, if, in the remarks I shall make, repetitions shall occur on the one hand, and apparent inattention to arguments on the other.

Having been a member of this Government during several years, and being impressed with the difficulties attending the formation of a judiciary system, I have thought proper to give a concise history of Legislative proceedings on this important subject. Permit me to say, sir, that the first institution of such a system must be an experiment. It is impossible to ascertain, until tried, the effects of a system co-extensive with the vast territory of the United States, and which ought to be adapted to the different laws and habits of the different States.

Soon after the first law was enacted, as early as the year 1793, and I believe sooner, complaints were made of the system of circuit courts. The Union then being divided into three circuits, and two of the six judges were obliged to attend each court, if one judge failed, all the business of course was continued to the next term. Judges complained of the distance they had to travel, and suitors and lawyers complained of delays. In 1793, if my memory is correct, the law passed allowing one judge to attend with the district judge in each district, with some other modifications not important in the present view of the subject. If, by reason of distance, badness of roads, sickness, or any other accident, this one judge failed of attendance, or if he and the district judge differed on any point, a delay was occasioned. If the same judge attended the same circuit at the next term, another delay, and so on, till experience taught us, that some alteration in the system was requisite. It will be recollected, that the judges had to travel over this extensive country twice in each year, and to encounter the extremes of both heat and cold. Of this they complained; but this was not all; the business was not done.

Although this subject had been recommended before, and committees had contemplated a revision and alteration of the system, I do not remember that a bill had ever been presented to either House of Congress until 1799. In that session, a bill was reported similar in its features to the act which passed last session. It might have been acted upon in the House of Representatives; of this, however, I am not confident; but I recollect it was printed, and the members of both Houses had it before them; and at the last session, with some alterations and amendments, it was enacted into a law. I believe all parties wished for a revision and amendment of the system, in respect to circuit courts; the difference of opinion was principally this: some supposed an increase of the Judges of the Supreme Court to such a number as would render the duties of the circuit practicable for them, and provide for the completion of business, would be the best amendment; the others thought the law, as it passed, was preferable.

I acknowledge, that in deliberating upon this subject, we always assumed the principle, that the establishment of courts was important to protect the rights of the people; we did not fear an army of judges, as has been hinted by the gentleman last up, (Mr. Jackson.) In this opinion we might be mistaken, but we were honest in our professions. Although some believed, that more of the business of the United States might be confided to the State courts; yet it is not within my recollection, that the question was considered, in any measure; a party question. I am confident, that at the session of 1799, and for a long time before that, the friends of this law, which eventually passed last winter, could not, nor did not, contemplate any change of administration. A revision of the system was long a subject of deliberation; we believed an increase of circuit judges, to the number requisite to perform the duties, would be an inconvenient increase of the Supreme Court; and though it was desirable for the Judges of the Supreme Court to see the people and be seen of them, yet the preference was given to the system now proposed to be repealed. We supposed it would be an evil to increase the number of Judges of the Supreme Court to thirteen, fifteen, or seventeen. A court which is to act together, should not be numerous; on this subject, all men have agreed; here may be danger of an "army of judges," as the gentleman says; for although in Great Britain the twelve judges are sometimes called to give an opinion, yet no man will feel equal confidence in a tribunal of judges for the business of a court, consisting of many as of few; from three to five, the good sense and experience of all nations, has declared to be about the proper number; and we thought it conducive to the general good, to establish tribunals in such manner as to carry justice to the door of every man.

Is this system so very vicious, that it deserves nothing but abhorrence and destruction? It costs us a little more than thirty thousand dollars, and by it the number of circuit judges is increased to sixteen; and by it likewise is contemplated reducing the number of supreme judges to five, when it can constitutionally be done. Is the expense an object, when by that expense, we extend the jurisdiction of a court over this vastly extensive, growing country, and carry law and protection to every man? This country is in a singular condition; a great tract of unsettled lands is peopling with rapidity, and numerous emigrations increase our population far beyond its natural increase; is it not of importance that courts should be located among them, early, to correct the restless spirit which is frequent in new and scattered settlements? And are not the emigrations composed of such as require the prompt assistance of the law, to preserve among them regularity? Punishment, to us, and to all good men, should be a strange work; but to prevent crimes, is the work of a God. I speak to gentlemen, who have many of them graced the judge's bench, and adorned the professional robe they have worn, and am therefore not obliged to be particular that I may be understood; a word to the wise will be sufficient. A judiciary, in a national point of view, is absolutely necessary, and an extension of it to every national purpose, is equally necessary. To depend upon State courts, not under obligations, nor amenable to you, besides having as much business allotted to them by the respective States as they can accomplish, and depending, upon them, and not on us, for existence—will require only to be mentioned, to be exploded. Locating your judges in various parts of the country, by them promulgating the national laws, which it is well known has been a subject of great difficulty, and giving them daily opportunity of mixing with people, not well disposed to order and law; may prevent disorders and insurrections, and save millions of expense, which pecuniary saving will be the least of the important events arising from such a system.

But there is another objection to the repeal of the judiciary law, which in my mind is conclusive: I mean the letter and spirit of the constitution.

In the formation of every Government, in which the people have a share in its administration, some established and indisputable principles must be adopted. In our Government, the formation of a Legislative, Executive, and Judiciary power, is one of the incontrovertible principles; and that each should be independent of the other, so far as human frailty will permit, is equally incontrovertible. Will it be expected, that I should quote Sidney, De Lolme, Montesquieu, and a host of elementary writers, to prove this assertion? There is, probably, no conflict of opinion upon this subject. When we look into our constitution of Government, we shall find, in every part of it, a close and undeviating attention to this principle. Our particular form is singular in its requirements; that full force and operation be given to this all-important principle. Our powers are limited, many acts of sovereignty are prohibited to the National Government, and retained by the States; and many restraints are imposed upon State sovereignty. If either, by accident or design, should exceed its powers, there is the utmost necessity that some timely checks, equal to every exigency, should be interposed. The Judiciary is established by the constitution for that valuable purpose.

In the British Government, the Legislature is omnipotent to every legislative effect, and is a perpetual convention for almost every constitutional purpose. Hence it is easy to discern the different parts which must be assigned to the Judiciary in the two kinds of government. In England, the Executive has the most extensive powers; the sword or the military force; the right of making war, and in effect the command of all the wealth of the nation, with an unqualified veto to every legislative act. It is, therefore, rational for that nation to preserve their judiciary completely independent of their Sovereign. In the United States, the caution must be applied to the existing danger; the Judiciary are to be a check on the Executive, but most emphatically to the Legislature of the Union, and those of the several States. What security is there to an individual, if the Legislature of the Union, or any particular State, should pass a law, making any of his transactions criminal which took place anterior to the date of the law? None in the world, but by an appeal to the Judiciary of the United States, where he will obtain a decision that the law itself is unconstitutional and void, or by a resort to revolutionary principles, and exciting a civil war. With a view to those principles, and knowing that the framers of our constitution were fully possessed of them, let us examine the instrument itself. Article third, section first: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Are there words in the English language more explicit? Is there any condition annexed to the judge's tenure of office, other than good behavior? Of whom shall your judges be independent? We are led to an erroneous decision on this, as well as many other governmental subjects, by constantly recurring to Great Britain. That their courts should be independent of their Sovereign, is an important object; he is the fountain of honor and power, and can do no wrong; our President, at least for several years past, has been considered as the fountain of dishonor and weakness, and if there was any maxim upon the subject, it was that he could do no right. Of course the great object of the independence of the Judiciary must here have reference not only to our Executive, but our Legislature. The Legislature with us is the fountain of power. No person will say that the Judges of the Supreme Court can be removed, unless by impeachment and conviction of misbehavior; but the judges of the inferior courts, as soon as ordained and established, are placed upon precisely the same grounds of independence with the Judges of the Supreme Court. Congress may take their own time to ordain and establish, but the instant that is done, all the rights of independence attach to them.

If this reasoning is correct, can you repeal a law establishing an inferior court, under the constitution? Will it be said, that although you cannot remove the judge from office, yet you can remove his office from him? Is murder prohibited, and may you shut a man up, and deprive him of sustenance, till he dies, and this not be denominated murder? The danger in our Government is, and always will be, that the Legislative body will become restive, and, perhaps, unintentionally break down the barriers of our constitution. It is incidental to man, and a part of our imperfections, to believe that power may be safely lodged in our hands. We have the wealth of the nation at command, and are invested with almost irresistible strength; the Judiciary has neither force nor wealth to protect itself. That we can, with propriety, modify our judiciary system, so that we always leave the Judges independent, is a correct and reasonable position; but if we can, by repealing a law, remove them, they are in the worst state of dependence.

Wednesday, January 13.

The Judiciary System.

The Senate resumed the consideration of the motion made on the 6th inst. that the act of Congress passed on the 13th day of February, 1801, entitled "An act to provide for the more convenient organization of the Courts of the United States," ought to be repealed.

Mr. Mason, of Virginia.—I feel some degree of embarrassment in offering my sentiments on a subject so fully and so ably discussed. I believe that the ground taken by my friend from Kentucky has not been shaken by any arguments urged in opposition to the resolution on the table. Yet as some observations have been made, calculated to excite sensibility, not here, but abroad; as they appear to have been made with a view to that end; and as an alarm has been attempted to be excited on constitutional ground, I think the observations ought not to go unnoticed.

I agree with gentlemen, that it is important, in a well-regulated government, that the judicial department should be independent. But I have never been among those who have carried this idea to the extent which seems at this day to be fashionable. Though of opinion that each department ought to discharge its proper duties free from the fear of the others, yet I have never believed that they ought to be independent of the nation itself. Much less have I believed it proper, or that our constitution authorizes our courts of justice to control the other departments of the Government.

All the departments of a popular government must depend, in some degree, on popular opinion. None can exist without the affections of the people, and if either be placed in such a situation as to be independent of the nation, it will soon lose that affection which is essential to its durable existence.

Without, however, going into an inquiry of what kind of organization is most fit for our tribunals; without inquiring into the fitness of making the judges independent for life, I am willing to enter into a consideration, not of what ought to be, but of what is. Whatever opinion I may individually entertain of the provisions of the constitution relative to the Judiciary, sitting here under that constitution, I am bound to observe it as the charter under which we are assembled.

When I view the provisions of the constitution on this subject, I observe a clear distinction between the Supreme Court and other courts. I am sensible that when we come to make verbal criticisms, any gentleman of a sportive imagination may amuse our fancies by a play upon words. But this is not the way to get rid of a genuine construction of the constitution. With regard to the institution of the Supreme Court, the words are imperative; while, with regard to inferior tribunals, they are discretionary. The first shall, the last may be established. And surely we are to infer from the wise sages that formed that constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even points, elucidate its meaning. When, therefore, the constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it as of constitutional creation? And on the other hand, from the language applied to inferior courts, are we not justified in considering their establishment as dependent upon the Legislature, who may, from time to time, ordain them, as the public good requires? Can any other meaning be applied to the words "from time to time?" And nothing can be more important on this subject than that the Legislature should have power, from time to time, to create, to annul, or to modify the courts, as the public good may require, not merely to-day, but for ever; and whenever a change of circumstances may suggest the propriety of a different organization. On this point, there is great force in the remark of the gentleman from Georgia, that among the enumerated powers given to Congress, while there is no mention made of the Supreme Court, the power of establishing inferior courts is expressly given. Why this difference, but that the Supreme Court was considered by the framers of the constitution, as established by the constitution, while they considered the inferior courts as dependent upon the will of the Legislature.

If the arguments now urged be correct, that a court once established cannot be vacated, we are led into the greatest absurdities. Congress might deem it expedient to establish a court for particular purposes, limited as to its objects or duration. For instance: the United States has taken possession of the Mississippi Territory, rightfully or not, I will not pretend to say. This territory has been heretofore in the hands of various masters, viz: France, England, Spain, and Georgia; and it is now possessed by the United States. All these Governments, except the United States, made certain grants of lands in the territory, and certain settlers spread their conflicting patents over the country. These different titles will open a wide field for litigation, which will require able tribunals to decide upon. Suppose, then, Congress should establish special tribunals to continue for three, four, or five years, to settle these claims. Judges would be appointed. They would be the judges of an inferior court. If the construction of the constitution now contended for be established, what would the judges say, when the period for which they were appointed expired? Would they not say, we belong to inferior courts? Would they not laugh at you when you told them their term of office was out? Would they not say, in the language of the gentleman from New York, though the law that creates us is temporary, we are in by the constitution? Have we not heard this doctrine supported in the memorable case of the mandamus, lately before the Supreme Court? Was it not there said that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years; that it was right in making the justices, but unconstitutional in limiting their periods of office; that, being a judicial officer, he had a right to hold his office during life—or, what is the same thing—during good behavior, in despite of the law which created him, and, in the very act of creation, limiting his official life to five years.

I may notice another case, more likely to happen, to show the absurdity of this construction. Congress have assumed jurisdiction over the Mississippi Territory, and have established a court, composed of three judges, which court is as much an inferior court as the circuit or district courts. Of this jurisdiction Georgia denies the validity. The contest is in a train of settlement. Suppose it shall turn out that the United States are convinced of the injustice of their claim, relinquish it, and restore the territory to Georgia, what becomes of the judges? Their offices, their duties, are gone! Yet they will tell you, we are vested with certain constitutional rights, of which you cannot deprive us. It is true the territory is no longer yours. You have no jurisdiction, we have no power, yet we are judges by the constitution. We hold our offices during good behavior, and we will behave well as long as you will let us. Is not this a strange situation? You have judges in a territory over which you have no jurisdiction; and you have officers which are perfect sinecures, pensioners for life. Such an absurdity I am sure the constitution never meant to justify. It is an absurdity equally repugnant to the letter and genius of the constitution.

But it would seem that the argument urged on this occasion, and the general course of our legislation, had been grounded more on the convenience and emoluments of those appointed to office, than on grounds of public utility. First, we appointed six judges of the Supreme Court, divided the United States into three circuits, two judges to ride each circuit, in which, with the district judge, to form a court. The law fixed the duties and the compensation, and gentlemen of the first character were ready to accept the places. The salaries indeed had been thought high; in some parts of the Union they were thought enormous. But a little time passed before they complained of the hardships of their duties; and the law was altered, not so much for the public good as for their personal convenience. Where two judges were required to hold a court, one was now declared sufficient. Thus you continued their full salaries, while you lopped off half their duties. Shortly after you assigned them, under the pension law, inconsiderable duties; and they refused to perform them. Thus, while they showed themselves ready to abate of their duties, they adhered to their salaries. Next came the law of last session, which takes away all their duties. It leaves them simply a court of appeals. And what have they got to do? To try ten suits; for such is the number now on their docket, as appears from a certificate just put into my hands; and the average number on their docket amounts to from eight to ten. Thus, for the trial of the immense number of eight or ten suits, you have six judges, one with a salary of four thousand, and five others with salaries of three thousand five hundred dollars each.

I fear, said Mr. M., that if you take away from these judges that which they ought officially to do, they will be induced, from the want of employment, to do that which they ought not to do; they may do harm. They may be induced, perhaps, to set about that work gentlemen seem so fond of. They may, as gentlemen have told us, hold the constitution in one hand, and the law in the other, and say to the departments of Government, so far you shall go and no farther. This independence of the Judiciary, so much desired, will, I fear, sir, if encouraged or tolerated, soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently become so strong as to crush and absorb all the others into their solid mass.