of the United States;" which was read and ordered to the second reading.

On introducing the above bill Mr. PINCKNEY addressed the Chair as follows:

Mr. President: When I first had the honor of addressing you on this subject it appeared to me necessary to move an amendment to the Constitution; on reflection, however, I am since convinced that the more regular and expeditious mode would be to move an amendment to the law establishing the Judicial Courts of the United States-by this means the law may be passed during the present session, and we shall the more readily obtain the limitation we contend for.

SENATE.

ary power; indeed a gentleman high in office, and who held both situations at the same time as Judge and Envoy, is himself decidedly of this opinion, for in his charge to the Eastern juries he has these expressions:

"Wise and virtuous men have thought and reasoned very differently respecting Government; but in this they have at length very unanimously agreed, viz: " that its powers should be divided into three distinct independent departments, the Executive, Legislative, and Judicial. But how to constitute and balance them so as best to guard against abuse and fluctuation, and preserve the Constitution from encroachments, are points on which there continues to be a great diversity of opinions, and on which we all have as yet much to learn. The Constitution of the United States has therefore instituted these departments, and much pains have been taken so to form and define them, as that they may operate as checks one upon the other, and keep each be of the last importance to a free people, that those within its proper limits: it being universally agreed to who are vested with Legislative, Executive, and Judicial powers should rest satisfied with their respective portions of power; and neither encroach on the provin ces of each other, nor suffer themselves or the others to intermeddle with the rights reserved by the Constitution to the people."

As the Judiciary is among the most important departments in our Government, as it reaches every situation in society-neither the rich, the honored, or the humble, being without its influence or above its control-as it is the department to which not only the lives and fortunes, but the characters of our citizens are peculiarly entrusted, it becomes us to be extremely careful that the Judges should not only be able and honest men, but independent in their situation. Our Constitution has in some degree secured their independence by giving them permanent salaries, and rendering them ineligible to the Legislature; but in If, then, there can be no doubt of its propriety vain will we consider them independent, in vain when applied to a Judge, in ordinary cases, how may we suppose their opinion beyond the control much more forcibly does it apply to an Envoy or interference of the Executive, until we have who concludes a treaty, which when ratified is to determined it shall not be in his power to give become the supreme law of the land; how strongthem additional offices and emoluments, while ly must the negotiation of so important and in Judges; until, in short, we confine them wholly to many instances so difficult a business, be impressed their duties as Judges, and teach them to believe on his mind! He will no doubt retain the journals that in the execution of the laws they should con- of his proceedings and opinions, and perfectly resider themselves as little obliged to please the collect the progress and termination of every proPresident, or to fear his disapprobation, as that of posal which was compromised or rejected. It must any other man in the Government. This can only be difficult for him to forget the attempts to which be done by preventing them accepting other offices, Ministers are sometimes liable in condescending while they continue as Judges, and thus depriving where their object is honorable; he will rememhim of the power of heaping upon them addition-ber what his opinions were upon particular points; al favors and emoluments. and, whether they were successful or not, his genIt is an established maxim, and I hope will for-eral character may be that of not very easily yieldever remain so, that the Legislature and Judiciary should be as distinct as the nature of our Government will admit; that is, that the same men shall not. in a deliberative capacity, agree to measures which they shall afterwards have a right to explain and decide upon in a judicial one. The reason is obvious; that the Judges should, in a calm and unprejudiced manner, explain what the law literally is, and not what it ought to be; that they should not be allowed to carry upon the bench those passions and prejudices which too frequently prevail in the adoption and formation of legislative acts and treaties, and which never fail to give an irresistible bias to the opinions of a Judge who has been concerned in making them The truth of this reasoning is now so generally conceded, that there is not a man who knows anything of government that will attempt to controvert it; the constitutions of all the States have sanctioned it, and if the opinions of the Federal Convention ought to have weight, they so strongly insisted upon it as even to refuse, after repeated trials, associating the Judges with the President in the exercise of his revision6th CoN.-4

ing them. In short it is impossible for him to be that cool and unbiassed interpreter of the treaty which he otherwise might have been, had he not been concerned in concluding it.

The Constitution contemplates an independent Judiciary. The public, therefore, will expect and have a right to demand, upon all questions, a fair and impartial trial by Judges, whose minds are open to conviction, and unprejudiced by party opinions; by men who have not been concerned in forming a law or treaty, but who are totally unfettered by the recollection of what passed at the negotiation, or what might have been wished or expected by either party, as judges, candidly and impartially to determine upon every question that may come before them.

These reasons are certainly sufficient to convince any one that this provision is necessary to the independence of the Judges, and the pure and unbiassed exposition of the laws; that unless it is done, their independence is a visionary and unfounded thing. That if the President can hold out to the Judges the temptation of being Envoys, or of

SENATE.

The Judiciary.

MARCH, 1800.

giving them other offices, and that he still can numerous and powerful parties, it is impossible to continue them as Judges, that on any question in foretell what may happen. No man is said to be which the President or his friends, or the Govern-wise at all times, and our own experience and inment, may be concerned, it might have a tendency tercourse with the world must convince us that to influence them in opinion; that it was not fre- there are moments of enthusiasm, or of heat, or quently to be expected they would be unmindful surprise, when the most cautious men are not quite from whom they received the present appointments, so prudent as others. I will therefore ask, and do or so entirely indifferent to their own, or the ad-it with great deference, as the President is the onvancement of their families as not sometimes to ly officer on whose trial the Chief Justice is to recollect that from the same source other and preside, or on whose impeachment his absence greater emoluments might in future be derived; would be a public inconvenience, is it not perhaps that ingratitude was not often the vice of public presuming too far on his own infallibility or incaofficers while their patron continued in power; that pacity to err, to send the only officer to a distant on subjects where his character, his feelings, or country, without whose presence, in case of an the public opinion of his acts were in question, our impeachment, a court could not be formed to try Judges might reasonably be expected not to be him? I ask it with deference, and am sure these chargeable with apathy or inattention; and that the observations must have escaped the Executive, or true way to assert the dignity of the President and the Chief Justice never would have been sent. the honor and independence of the Judges, was to place it out of the power of the one to offer, and the other to accept additional favors.

To evince the absolute necessity of some provision being made, it is to be observed that, as the law stands now, a Judge might not only accept That a Judge ought never to be absent from the any other appointment from the Executive of the United States, or be drawn from his official situa- Union, but he may accept them from the indivition and leave an undue proportion of its duties to dual States, or, what is still more dangerous, from be performed by the remainder of the bench; that a foreign Power, and thus become the minion of the number of Judges were exactly proportioned the one or the tool of the other, as circumstances to the duties they were to perform; that to with- or his own interest may prompt him. Few men draw one and be incapable of supplying the va- will deny the necessity of some provision here, cancy, was not only to require the inexecution of and that the present is an unwise and degrading the laws in some parts of the Union, but to invi- situation for a national judiciary. Most of the diously harass the other, while a favorite or possi-States have carefully guarded their tribunals bly too complying a Judge was sent to gratify his against a danger of this kind. The State of South curiosity or indulge his taste on some agreeable Carolina, to which I belong, is remarkably express or easy mission. on this subject. Aware of the necessity of an independent judiciary, her constitution, in speaking of that department, has these words: "nor shall the Judges hold any other office of profit or trust under this State, the United States, or any other Power," a prohibition not more complete or full than ought to exist in the case of the Federal Judges.

That no man ought to hold two offices under the same Government, particularly where they were important; that most of the States had regulations to prevent this, and that nothing more contributed to the extravagance of a Government or the corruption and immorality of its citizens, than the power to heap many lucrative and perhaps useless offices on the same person; that it had a tendency to make them servile, to render them | the tools and sycophants of men in power, and to degrade the character of office.

The not preventing, by the Constitution, the Judges from holding other offices may possibly be considered as an omission; it is true, it might as well have been there; but when we examine the power That in case of the impeachment of the Presi- given by the Constitution to Congress, to organize dent of the United States, the Chief Justice was and establish the judicial courts-to fix their salto preside, and there was no provision in the Con-aries, detail their duties, and arrange and alter the stitution to supply the vacancy: therefore, if an system as they think proper, there can be no doubt impeachment was to take place in his absence, it we have a perfect right to pass the bill I shall must remain undecided until the Chief Justice have had the honor to propose to you. It does could be sent for; that this, if recollected by the not go to prevent the President's right to nomiExecutive, should of itself have been an insupera-nate a Judge, but only to declare that if a Judge acble objection-in point of propriety, it always is so. but in point of delicacy it ought most strongly to have been so, because, here the President is the officer, and indeed the only one, who is implicated in the possibility of its inconvenience arising from absence of the Chief Justice. It is true it is to be presumed that the man who is elected by his countrymen to administer the important office of President, will be always so wise and virtuous as to make it very unlikely an impeachment of him should take place-the thing, however is possible. In times of difficulty where opinions run high, and where those opinions are strongly divided between

cepts any other appointment he cannot continue a Judge; a limitation which the Legislature has most unquestionably a right to annex. To Congress is left the power to fix the number of Judges, ascertain their duties and the compensation they shall receive. They therefore clearly have the right to say that a Judge, on performing certain duties, shall receive a certain salary, but that if he does not perform them he shall not receive it; cases of sickness must of course be always except ed. Congress have a right to declare by law, as I shall hereafter endeavor to induce them, that no man shall hereafter hold two offices, of profit and

trust, under this Government, at the same time. There can be no question as to their right to pass such a law; and it would certainly reach the case of the Judges. It could never have been the intention of the Constitution, nor will the nature of our Government quietly admit so great an impropriety, as that a man should hold an office, the duties of which he cannot, from his absence, perform, nor can any other be appointed to perform them for him, and that this man should nevertheless be authorized, if he please, to draw the salary. We are not quite so old, and not, I trust, quite so hackneyed in the arts of European Governments, as to bear this without a murmur, or to suffer it to grow into precedent without an attempt to correct it.

SENATE.

bill is to be considered as a reflection on the President for nominating a Chief Justice, and the Senate for having confirmed it, and that the Senate, by agreeing to it, will join in the censure. Being always ready to approve, and to praise what is meritorious, it is with great reluctance I can ever be brought to censure-I have no such intention at present. I can readily believe that many of the inconveniences I have mentioned may have escaped the President in the recent nomination. It is here I have always disliked it. I believe the general sentiment to be against it; but, be that as it may, no such reason ought ever to have weight in this House. If the thing is right, if it is now considered as proper for us to say, that the Judges must If we recollect the manner in which our Judges stay at home, and be confined to their judicial duare appointed, that circumstance alone should in- ties, and hold no other offices while Judges, we duce us to adopt every mode in our power to ren- should do it, and not consider whether it is pleasder them independent of the Executive. They ing or otherwise to the President; he must underare appointed by the President, and if the moment stand public business too well to consider it in the after they receive their commissions they were nature of a reflection. We every day alter existreally so independent as to be completely out of his ing laws and regulations, without considering such reach-that no hope of additional favor, no at- changes as reflections on a preceding Legislature tempt to caress could be reasonably expected to in- or President, and I should be sorry to suppose, fluence their opinions, yet it is impossible for them that, while a bill was under discussion, the fear of ever to forget from whom they have received their displeasing the Executive should ever be used as present elevation. Hence I have always been of a reason for its rejection. He has always a right opinion, that it was wrong to give the nomination to give his opinion in the exercise of his revisionof Judges to the President; it is, however, deter- ary authority, and when he does, we will delibermined by the Constitution, and while the right ately and respectfully attend to it. One remark continues in him, it must in some degree have its more, and I shall no longer trespass on the paeffects on the good wishes and influence of a tience of the House: it is, that a reason has been given Judge in his favor. He cannot hear anything re- for leaving the President at liberty to send a Judge specting him in quite so unbiassed and impartial on any delicate or difficult mission, which I do not a manner, as he would was the President unknown conceive reputable either to the political or literto him, or had he not received any favor from him. ary character of our country-it is said the Judges It is our duty to guard against any addition to this may be the most able and qualified men the Presbias, which a Judge, from the nature of his appoint- ident can find, and that being prevented from sendment, must inevitably feel in favor of the President. ing one of them, he may sometimes be obliged to It is more particularly incumbent on us when we re- send inferior and less important characters, and collect that our Judges claim the dangerous right that the public interest might suffer. How far the to question the constitutionality of the laws; and present or any former supreme bench may justify either to execute them or not, as they think proper; the observation it is not for us to say, but never a right in my judgment as unfounded and as dan- will I suppose that among a people so numerous gerous as any that was ever attempted in a free gov- and enlightened, so alive to their country's welfare, ernment; they however do exercise it, and while and hundreds, perhaps thousands, of whom are so they are suffered to do so, it is impossible to say devoted to public business, can only six men be to what extent it might be carried. What might be found capable of discharging any political duties the consequences if the President could at any time that Government might require; the idea is too deget rid of obnoxious laws by persuading or in-grading to our national character to be entertained fluencing the Judges to decide that they were un- for a moment. For these reasons I have thought constitutional, and ought not to be executed? It it my duty to introduce this bill, and I trust it will will be said this is arguing as if all our officers were pass and become a law. corrupt-that we should place no confidence in them and was truly taking the dark side of the picture. To this I answer that it is our duty to guard against every possibility of influence or corruption-hence springs the necessity of laws; if all our officers were perfect, and all our citizens honest and virtuous, there would be no occasion for them, but as it is the nature of men to err, and sometimes to be vicious, our laws are incompetent unless they are calculated to meet every contingency.

A strange doctrine has lately been circulated, which it is my duty to remark on-it is, that this

THURSDAY, March 6.

The Senate took into consideration the amendment reported by the committee to whom was referred the bill, entitled "An act declaring the assent of Congress to certain acts of the States of Maryland and Georgia," and having adopted the same,

Resolved, That this bill pass with an amend

ment.

The bill, sent from the House of Representatives, entitled "An act for the relief of Thomas

Arnold," was read the second time, and referred
to Messrs. FOSTER, GOODHUE, and GREENE, to
consider and report thereon to the Senate.
The bill for the relief of Lyon Lehman was
read the second time and referred to Messrs. WAT-
SON, GOODHUE, and LANGDON, to consider and re-
port thereon to the Senate.

MARCH, 1800.

vest in either branch of Congress any other powers on the subject of privilege than those mentioned, and limited, and defined therein, therefore, to assume any other privilege would be to diminish the rights of the people expressly reserved to them by the Constitution; to encroach on the power given to the Judicial; to disparage the right of trial by jury; and to establish the dangerThe bill further to amend the act, entitled "Anous doctrine, that a single branch, without control or act to establish the Judicial Courts of the United States," was read the second time.

Ordered, That it be referred to the committee appointed the 12th of December last, to take into consideration that part of the Speech of the President of the United States, which recommends a revision and amendment of the Judiciary system, to consider and report thereon to the Senate.

The Senate resumed the consideration of the motion made on the 26th of February last, that an inquiry be had relative to a publication in a newspaper called the Aurora, on the 19th of the said month.

On motion to amend the original motion, by prefacing it with these words:

interference, can, at their own will, and in their own case, punish for reasons on which the Constitution has given them no power to decide:"

And, after debate, the Senate adjourned.

The Senate took into consideration the motion made yesterday, for amending the motion made on the 26th of February last, that an inquiry be had relative to a publication, of the 19th of said month, in a newspaper called the Aurora; and A motion was made to strike out these words:

those mentioned, and limited, and defined therein; therefore, to assume any other privilege would be to diminish the rights of the people, expressly reserved to them by the Constitution;" and to insert the word "power" before the words "to en

croach:"

And, after debate, the Senate adjourned.

"Whereas the Constitution of the United States has expressly declared That the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respect-"other powers on the subject of privilege than ively, or to the people :' And whereas, to prevent any attempt being made on the part of either branch of Congress to define their own privileges, and exercise the same, as occasion or circumstances may, in their opinion, require, and to remove all doubt as to the extent and exercise of the privileges they are to enjoy, the Constitution has positively and expressly limited and defined the same, by declaring that each House shall be the judge of the elections, returns, and qualifications, of its own members; that they may compel the attendance of absent members, in such manner, and under such penalties, as each House may provide. That they may determine the rules of their proceedings; punish the members for disorderly behaviour; and, with the concurrence of two-thirds, expel a member. That the members of both Houses shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to, and returning from, the same; and for any debate or speech in either House shall not be questioned in any other place:"

A motion was made to strike out from the amendment the second clause, to wit: all that follows the word "people ;" and it passed in the affirmative-yeas 21, nays 8, as follows:

YEAS-Messrs. Anderson, Bingham, Chipman, Dayton, Foster, Franklin, Goodhue, Gunn, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Marshall, Paine, Read, Ross, Schureman, Tracy, Watson, and Wells. NAYS-Messrs. Baldwin, Bloodworth, Brown, Cocke, Langdon, Mason, Nicholas, and Pinckney.

And, on request, Mr. PINCKNEY had leave to withdraw the preceding part of the proposed

amendment.

And, the original motion being amended, a motion was made to strike out all the words thereof after the words "Resolved, that," line 1st, and to insert, in lieu thereof, the following words:

"As the Constitution of the United States does not

SATURDAY, March 8.

Mr. LIVERMORE, from the committee to whom was referred the bill, sent from the House of Representatives, entitled "An act respecting the Mint," reported the bill without amendment.

The Senate resumed the consideration of the motion made yesterday to strike out certain words from the motion of the preceding day, on the original motion made on the 26th of February last, that an inquiry be had relative to a publication of the 19th of the said month, in a newspaper called the Aurora.

And, on the question to strike out, and to insert the word "power," as stated yesterday, it passed in the affirmative,-yeas 19, nays 8, as follows:

YEAS-Messrs. Anderson, Bingham, Foster, Franklin, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Marshall, Paine, Read, Ross, Schureman, Tracy, Watson, and Wells.

NAYS-Messrs. Baldwin, Bloodworth, Brown, Cocke, Langdon, Mason, Nicholas, and Pinckney.

And, on motion to strike out the original motion, for the purpose of inserting the amendment as amended, it passed in the negative-yeas 8, nays 19, as follows:

YEAS-Messrs. Baldwin, Bloodworth, Cocke, Franklin, Langdon, Mason, Nicholas, and Pinckney.

NAYS-Messrs. Anderson, Bingham, Chipman, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance,

1

1

1

(

1

Proceedings.

Livermore, Lloyd, Marshall, Paine, Read, Ross, Schure- Treasury, of two abstracts of the emoluments of man, Tracy, Watson, and Wells. the officers of the customs for the year 1799. Ordered, That they lie on the table.

Agreeably to the order of the day, the Senate took into consideration the report of the committee on the bill, sent from the House of RepresentMr. GOODHUE, from the committee to whom atives, entitled "An act to establish an uniform was referred the bill, sent from the House of Rep-system of bankruptcy throughout the United resentatives, entitled "An act to extend the time States;" and, of payment of bonds given for duties of impost in certain cases," reported the bill without amend