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On this motion a debate of some length ensued, for instance, one is but the twentieth part of her in which the provisions of the bill as they stood force, to Delaware it would be one-half her force. were supported by Messrs. JACKSON, Mason, Gentlemen may say that Delaware is the smallWright, and Cocke; and opposed by Messrs. est State; but let it be remembered, sir, that her Wells and HillhoUSE.

rights are equally sacred with th Mr. Wuite, of Delaware.—Believing as I do, Siates; and although her citizens are not so nusir, that the minds of gentlemen on this floor are merous, yet, sir, their State sovereignty and other thoroughly made up as to the present subject, and Constitutional rights are quite as dear and valuathat any observations now to be offered will not ble to them, as the blessing can be to any other influence a single vote, but merely occupy the time people; and, let me add, sir, she is among ihe oldof the Senate to no useful purpose, I shall ask your est States; her history travels back through the indulgence but a few moments. I cannot, sir, sit bloody scenes of your Revolution; she dates her quietly and see this bill reported by your commit- era at your Declaration of Independence, and I tee, meditating as it certainly does a manifest in- am proud to say, and can do so without detractjury to the State I have the honor in part to rep- ing from her neighbors, in proportion to her popresent, pass into a law, without doing more than ulation, her resources, and extent, during the seoppose to it a silent negative; without holding up vere contest for American liberty, she contributed,

a my voice and protesting most solemnly against in blood and treasure, as freely to its support and the extreme injustice of the measure. If, sir, this permanent establishment, as any State in the bill passes in its present shape, there will be left Union. in the State of Delaware twenty-eight thousand But, Mr. President, there is another point of eight hundred and eleven people unrepresented in light in which I must be permitted to present the the popular branch of their Legislature. Gentle- glaring injustice of this measure. By the Conmen may say, that this is only a fraction, and that stitution of the United States, taxation is not apin a general apportionment of representation, frac- portioned among the respective States according tional numbers are unavoidable. Sir, I acknowl-io representation, but according to population. edge it is only a fraction, but it is a fraction that Delaware, then, although in the House of Repreincludes one-half the population of that State, and sentatives, where the money affairs of our coun. amounts, even upon the present contemplated try are principally managed, she has but one memplan, to within four thousand of the number suf- ber, and Virginia twenty-one, is not laxed to the ficient to gain another Representative. Sir, twen- amount only of the twentieth part of the taxes of ty-eight or thirty thousand would, to one of the Virginia, according to representation, but to the large States, be an inconsiderable fraction. Ap- amount of the twelfth part of the taxes of that portion that number, for instance, among the State, according to population. Thus, sir, nearly iwenty-one Representatives from Virginia, and one-half the citizens of Delaware are obliged to you give to each member but a fraction of about pay their proportion of taxes to the support of ihirteen hundred; whereas from Delaware, there your Government, when you allow them no voice will be but one representative, and over and above in either laying and disposing of those taxes, or, his legal number a fraction of near twenty-nine what is perhaps even more material, in pointing thousand people unrepresented. Is this fair, sir ? out the objects of taxation. Their situation may, Is this equitable ? I ask, gentlemen, is it not un- in some respects, be likened to a very memorable friendly and wrongful ?' And can it be possible, ! grievance once heavily complained of in this sir, that the transcendent omnipotence of a ma- country, when the Parliament of Great Britain jority have fated, if I may use the expression, this arrogated to themselves the right of taxing our injustice upon a sister State ? Suppose, sir, Dela- fathers without their consent. ware to have but one Representative and Virgi- Sir, the doctrine urged by some gentlemen that nia twenty, a fraction of five thousand to the for- the divisor of thirty thousand will increase the mer is equal to a redundant number of one hun- House of Representatives to a body too large and dred thousand to the latter; or take, sir, the pres unwieldy for the convenient and ordinary purent case, and you' will find that the fraction of poses of business, seems to me totally without twenty-nine thousand in the State of Delaware, foundation. The observation and experience of apportioned upon the representation, is at least every man must be sufficient at once to satisfy equal to a redundant number in the State of Vir- him that this cannot be the consequence; we have ginia of three hundred thousand. If, sir, the divi- before our eyes, sir, examples that prove directly sor is fixed at thirty thousand, Delaware will have the reverse. This divisor will give to your House two Representatives; her weight, then, in the of Representatives but one hundred and filtyother House, will, in relation to Virginia, be as seven members; the State of Virginia has in the one to twelve, but if she is compelled to submit to popular branch of her Legislature one hundred the divisor of thirty-three thousand, you allow and eighty members, and we have not been told her but one Representative; you deny her nearly that it is too numerous. The British House of one-half her rightful influence, and place her on Commons, before the union with Ireland, consistthe floor of the House of Representatives in a rel- ed of about five hundred and fifty members, and ative situation toward Virginia, as one to twenty- we heard no complaint of the numbers ; on the one. Sir, an additional Representative to any of contrary, sir, the nation wished a fuller representthe larger States is not of the same consequence ation; and it is from that House, too, sir, that, acas another would be to Delaware. To Virginia, Icording to this logic, must be só extremely riot


JANUARY, 1802.

Judiciary System.

ous and disorderly, we have drawn most of the rules The question was now taken on the motion to that govern the proceedings of this honorable body. strike out 33,000, and lost—ayes 11, noes 15.

Again, sir, the nature and spirit of your Gov- Mr. Morris then moved, and Mr. Tracy secernment requires a full representation in the Le-onded the motion to add, after "one representagislature. It is a Government that must depend tive for every 33,000," the words and one reprealone for its support upon the affections of the sentative for every fractional number of 27,000 people; and the best security for their affections persons;" The number 27,000 was used to avoid is to extend to them, upon as large a scale as com

à violation of the Constitution, which prohibits ports with the public safety, the freedom of choice, the allotting to each State more representatives and right of representation. In so extensive a than one for every 30,000. Thus, in the case of country as this, many parts of which are thinly Delaware, the ratio being 33,000, Delaware would inhabited, and ihe election districts consequently be entitled to one member for 33,000, and one for including vast tracts of territory, it must often | the fraction of 27.000 : both which numbers would happen that the electors are entirely unacquainted amount to 60,000; which last number entitled a with the person for whom they vote; but if you State to two members without violating the Conincrease the representation, you reduce the size of stitution. This motion was opposed by Messrs. the election districts; you bring the candidate Wright and ANDERSON, and was lost—ayes 10, within the very neighborhood of the electors; noes 15. they see him, they know him; they are better en- On the question to agree to the final passage of bled to estimate truly his character, and judge of this bill, it was determined in the affirmativehis capacity and disposition to serve them. This, yeas 23, nays 5, as follows: sir, will secure, in a great degree, the constituent YEAS—Messrs. Anderson, Baldwin, Breckenridge, from imposition, and attach to the Representative Brown, Chipman, Cocke, Colhoun, Dayton, Ellery, T. a bigher and more immediate responsibility; it Foster, Dwight Foster, Franklin, Howard, Jackson, will inspire the people with confidence in your Logan, s. T. Mason, J. Mason, Morris, Nicholas, Goverpment, and induce them more cheerfully to Sheafe, Stone, Sumter, and Wright. acquiesce in your laws. But, above all, sir, the Nays-Messrs. Hillhouse, Olcott, Tracy, Wells, divisor of thirty thousand leaves throughout the and White. United States á less aggregate of unrepresented The bill was then read a third time, and passed. fractions than


divisor you can take ; less, permit me to say, sír, by one hundred and sixteen thousand, than the one contemplated in the bill;

TUESDAY, January 12. and I am sure gentlemen on all sides of the House The following Message was received from the wish the country as fairly represented as possible. PresidENT OF THE United States: To my mind this is a most conclusive argument Gentlemen of the Senate : in favor of the divisor of thirty thousand.

now communicate to you a letter from the SecreI am told, sir, that this has been made a party tary of State, enclosing an estimate of the expenses question; that party considerations influence it. which appear at present necessary for carrying into What could have induced to this, is not for me to effect the Convention between the United States of say; I will attribute no improper motives to any America, and the French Republic, which has been honorable gentleman, but it has not pleased God prepared at the request of the House of Representato bless me with sagacity enough to discover any

tives. thing in it that even savored of party. Sir, par

TH: JEFFERSON. ties have already attained in this country a suffi

JANUARY 12, 1802. cient height, not only for our happiness but for The Message and papers accompanying it were our safety; and it argues but a small regard for read, and ordered to lie for consideraiion. the public good, to stamp every subject with that complexion. If this question involves any sepa

JUDICIARY SYSTEM. rate interests, they are those, sir, of the smaller The Senate resumed the consideration of the and larger States. With the former, then, the motion made on the 6th instant, " That the act of cause I advocate is a common cause, and I am Congress passed on the 13th day of February, sure gentlemen will give it due consideration, and 1801, entitled 'An act to provide for the more connot suffer any party feelings, however disguised, venient organization of the Courts of the United 10 influence them. Sir, a doctrine has of late States,' ought to be repealed." been publicly avowed, which I must be permitted Mr. Jackson, of Georgia.—I rise with an imto notice, as, in my estimation, extremely hostile pression of awe on the present question ; for we to the rights of the smaller States; it is said that must tread on Constitutional ground, which should the House of Representatives is not their ground, not be lightly touched on, nor too hastily decided. that they must look to themselves in the Senate, Every step we take ought to be well examined, and take care on this floor that sovereignties are and our minds convinced before we give that not destroyed. I hope gentlemen representing the vote which cannot be recalled, and which will smaller States will profit by this warning; it is fix a principle on Legislative construction, which, well worth their attention; it comes, sir, from the perhaps, will prevail as long as we remain a nalargest and most influential State in the Union. tion. The point it leads to, I presume not to say, and In the early stage of this discussion, I had alfear, sir, even to conjecture.

most determined to say nothing, and am at pres


Judiciary System.

JANUARY, 1802.

ent determined not to say much; but a justification sence of an intolerant clergy, as is evident from of the vote I shall give, has impelled me to offer their abuse of the President; and that we are not my reasons for it to the State I represent; and I under dread of the patronage of judges, is manihave made up my mind, decidedly, to vote for the fest, from their attack on the Secretary of State. resolution before you, if I cannot be otherwise con. And I trust, that we shall long keep this patronage vinced.

off, by not sanctioning the religious persecution of I conceive, that as this subject requires from us the clergy on the one hand, nor the political vioa legislative construction, that construction may lence of the judges on the other. as well, and indeed belter, be now made; there will But I will forbear making any further remarks undoubtedly hereafter be a clashing of powers. I of this kind, and go into an examination of the therefore think it is much better to decide it now, Constitutional grounds. when the injury is felt, than to suffer it to take root [Mr. J. bere quoted the third article, first secuntil it shall extort a different and more violent tion of the Constitution.] decision than that of a deliberative body.

Here then, said he, are two tribunals. First, The reasons for the resolution have been so ably the Supreme Court, the creature of the Constitustated, and strongly enforced, by the gentleman tion, the creature of the people; the other, the infrom Kentucky who moved it, as to expediency, ferior jurisdictions, the creature of the Legislature. and the burden of the expenses on the present And notwithstanding the play of gentlemen upon system, that I shall therefore say little about them. the words shall and may, they are in meaning

The expenses, however, of the Judiciary estab- essentially different. The word shall, applied to lishment, I deem the least important consideration the Supreme Court, is imperative and commandattached to the subject. Yet, I do not agree with ing, while the word may, applied to the inferior the gentleman who has spoken, that the expense courts, is discretionary, and leaves to the Legislais trifling. The gentleman from New-York had iure a volition to act, or not to act, as it sees fit. held up the insignificancy of a cent a person, and Again, why are the peculiar and exclusive powhad told us of Alfred's purse, which no one dared ers of the Supreme Court designated in the folto take away. Let that gentleman calculate twelve lowing section of the Constitution, but because souls to a family, and he will see that each family the Constitution considered that tribunal as absowould pay iwelve cents; a sum, however insigni- lutely established; while it viewed the inferior ficant to the pocket of that gentleman, that might tribunals as dependent upon the will of the Legisfurnish a comfortable meal to a poor family. With lature ? And that this was the case was evident the gentleman from Kentucky, however, I'contend from the conduct of the Supreme Court on the that the principle is as much settled by one cent pension act, which that court had some time since as by a million. And this observation becomes in- declared unconstitutional; and which declaration, calculably dangerous, if it is to be drawn into pre- he was convinced, would not have been hazarded cedent on every new project or improper measure, by an inferior tribunal. that it costs but a cent a person. And as to the But does this conclusion rest on judicial power remarks about Alfred, I might retaliate upon the alone? Is it no where else found under other gentleman, and say, that at that day twelve cents heads of Constitutional power? Yes, sir, under might have been a year's salary for a judge. the Legislative head of power, which is the first

We have been asked, if we are afraid of having grant of power made by the Constitution. For an army of judges? For myself, I am more afraid by the eighth section of the first article of the of an army of judges, under the patronage of the Constitution, after enumerating the power of layPresident, than of an army of soldiers. The for- ing taxes, &c., it is declared in the ninth division mer can do us more harm. They may deprive us thereof, “ to extend to constitute tribunals inferior of our liberties, if attached to the Executive, from to the Supreme Court.” Here, then, is a Legistheir decisions; and from the tenure of office con- lative power given expressly to that body, withtended for, we cannot remove them; while the out restriction or application to any other branch soldier, however he may act, is enlisted, or if not of the National Government. Lei those lawyers enlisted, only subsisted for two years; whilst the who hear me decide on the construction of all judge is enlisted for life, for his salary cannot be grants or deeds, if two grants be made in the same iaken from him. (See 12th division, sih Sect. Ist deed to two different powers or persons, if the first Art. Constitution.] Sir, it is said these evils will does not exclusively vest ? not happen. But what security have we for the Is there a single argument that can be assigned truth of the declaration ? Have we not seen sedi- to oppose this construction of the Constitution ? tion laws? Have we not heard judges crying out Do not the observations of gentlemen, who insist through the land, sedition! and asking those whose upon the permanent tenure of the Judicial office, duties it was to inquire, is there no sedition here? place the creature above its creator, man above It is true, the sedition law had expired with the last his God. the model above its mechanic? A good Administration, and he trusted it would not exist.. mechanic, when he constructs a machine, tries it; or at least be acted on, under the virtuous Jeffer- and if it does not succeed, he either mends it or son. Bui hereafter if it should exist, your judges. throws it away. Is there not the same necessity under the cry of sedition and political heresy, may for acting in the same way with the inferior triplace half your citizens in irons. I thank God, bunals of the Judiciary, which is no other than that no such law now exists, or is likely to exist. the machine of the Legislature ? I thank God, that we are not now under the influ- But, upon the principles of gentlemen, the law

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January. 1802.
Judiciary System.

SENATE. which creates a judge cannot be touched. The the systems were acknowledged to be adapted moment it is passed, it exists to the end of time. only to present circumstances, and in the last of What is the implication of this doctrine? To which the rights of Georgia were implicated. It alter or amend what may greatly require altera- follows, that whatever these rights may be, the tion or amendment, it is necessary to return to the system is sacred; and, as to the Mississippi Terri

creator, and to inquire what this creator is. My tory, if grounded on this doctrine, notwithstanding icah principle is, that the creator is the people them- the claiin of Georgia, her jurisdiction is totally

selves; that very people of the United States lost. To revert to the sedition law. If the docrent whom the gentleman from New York had de- trine supported now were true, ther, had the sedi14 clared ourselves to be the guardians of, to save the tion law been incorporated as a system by itself,

people themselves from iheir greatest enemies; an inferior tribunal, and officers been attached to in and to save whom from destroying themselves he it, would it have been perpetually tacked to the

had invoked this House. Good God! is it possi. Constitution? That law under which so many ble that I have heard such a sentiment in this of our citizens have been imprisoned for writings body? Rather should I have expected to have and speakings; and one, among others, for wishing heard it sounded from the despots of Turkey, or that the wadding of a gun had been lodged in a the deserts of Siberia, than to have heard it ut- certain Presidential part. lered by an enlightened legislator of a free coun- The gentleman had dwelt on the inconveniences try, and on this floor.

and evils of the old system, and had particularly But, said Mr. J., let us examine how we are to condemned that part of it, which, as he iermed it, get at the creator. If the honorable gentleman had converted the judges into post-boys. But I will put us into the way of doing this with effect, will appeal to the gentleman, if in England, where I will abandon all my arguments for this motion. so much more business is done, there are more Look to the Constitution, and see how it is to be than twelve judges, and whether those judges do amended. It can only be amended on the recom- not ride the circuit? And why shall our judges mendation of two-thirds of both Houses, or, on the not ride the circuits ? Shall we have six judges application of two-thirds of the States, a conven- sitting here to decide cases which require a knowtion shall be called, who are to propose amend- ledge of tne laws, the morals, the habits, the state ments, afterwards to be ratified by three-fourths of of the property of the several States? Would not the States.

this knowledge be much better obtained by their There is required first, then, two-thirds of both riding the circuits, and in the States themselves, Houses of Congress. Can this two-thirds be found making themselves acquainted with whatever renow, or is there any probability of its being found lates to them, and the cases of appeals to come for twenty years io come, who will concur in before them? It has been remarked by a celemaking the necessary alterations in the Judiciary brated writer on the English Constitution, that system that are now, or may hereafter, be required? one of the greatest political evils that could befall On this subject there are as many opinions as there a people was the existence of large judiciary are persons on this floor. I have indeed never bodies. To illustrate his ideas, he had instanced found iwo persons precisely agree. How, then, the Parliaments of France. If the spirit which can we expect three-fourths of the Legislatures of last session gave existence to sixteen new judges the several States to agree when we cannot agree continued, who could say by what number they among ourselves. There is, in fact, no amend would be limited ? They might indeed soon bement which could reach the case, and exhibit to come, what they had been likened to, an army of View all the requisite and necessary regulations judges. for such an extent of country. Such an attempt I do not wish to be severe in my remarks on the must form a volume, a Constitution by itself, and conduct of the late Administration. I admire the after all fall short of the object.

private character of Mr. Adams. But I do beI am clearly, therefore, of opinion, that if the lieve the succession of his political acts tended power to alter the Judiciary system vests not here, ultimately to accumulate in, and attach all powit rests no where. It follows, from the ideas of ers to, a particular person or favorite family. gentlemen, that we must submit to all the evils of If I wished to bestow on Mr. Jefferson this mass the present system, though it should exhibit all of patronage, which I contend this horde of officers the horrors of the Inquisition.

bestows, I should be in favor of the bill that it is But, said Mr. J., gentlemen say the United now moved to repeal ; but, as a political person, I States embrace a vast extent of territory, from fif- am no more for Thomas Jefferson than for John teen to seventeen thousand miles in lengih. What Adams. When he acts, according to my opinion, is the inevitable deduction to be drawn from this right, I will support him; when wrong, oppose fact? Why, that a system which is to apply to himn; and I trust a majority on this floor will act this extent of country, embracing different laws in the same way. and different habits, will require frequent altera- A gentleman from Massachusetts has asked if tions: whereas, if we are tied down to a system suits will go on diminishing, and if the millenium of inferior tribunals once formed, we cannoi even is so near at hand? Sir, different opinions are held touch the plan of the Judicial system of the little on this subject; for some suppose the millenium District of Columbia. Nor can we touch the in- to have arrived long since, and others that it may ferior jurisdictions in the Northwestern Territo-arrive, and others again that it never would arrive'; ry, or in the Mississippi Territory, in both of which but there is one thing certain, that the more courts


Judiciary System.

JANUARY, 1802. you have, the greater temptation there is for liti- on this subject. Owing to severity of indisposigation, and more suits, or rather evils, will flow tion I have not been in my place, nor have I heard from them. Law itself is but a necessary evil; for any of the discussion. This circumstance will be if mankind were perfect-were it not for their my apology, if, in the remarks I shall make, repefrailties and passions—there would be no occasion titions shall occur on the one hand, and apparent for it; and lawyers are a still greater evil, although, inattention to arguments on the other. he acknowledged, a necessary one. They seldom Having been a member of this Government discourage litigious suitors, and swarm in our during several years, and being impressed with courts; and there are here, as well as in every the difficulties attending the formation of a judiother country, persons so fond of law, and of per- ciary system, I have thought proper to give a consecution, that rather than not be in courts at all, cise history of Legislative proceedings on this imthey would direct their lawyers, as I have been portant subject. Permit me to say, sir, that the formerly told of a man who applied for advice, first institution of such a system must be an exand was informed he had no ground of action, to periment. It is impossible to ascertain until tried bring, then, a spite action. The State courts are the effects of a system co-extensive with the vast open and competent to most of the inferior court territory of the United States, and which ought 10 business, and it ought to be thrown into that chan- be adapted to the different laws and habits of the nel as much as possible.

different States. With respect to the usefulness of the additional Soon after the first law was enacted, as early as judges, created by the act of last session, it was, the year 1793, and I believe'sooner, complaints perhaps, unnecessary to add anything to what had were made of the system of circuit courts. The been su 'ably observed by the gentleman from Ken- Union then being divided into three circuits, and tucky. But I will state, for the information of the two of the six judges were obliged to attend each Senate, that in the Southern States of Georgia, court, if one judge failed, all the business of course South and North Carolina, a ground of great liti- was continued to the next term. Judges comgation is removed, one which had originated at plained of the distance they bad to travel, and least iwo hundred and fitty suits. Miller & Co. suitors and lawyers complained of delays. In had obtained a patent for a ginning machine (God | 1793, if my memory is correct, the law passed knew where it came from, but I believe that nei-allowing one judge to attend with the district ther of them invented it) so as to make those judge in each district, with some other modificaStates tributary to them, and embroil them in dis- tions not important in the present view of the putes. South Carolina bad purchased that patent subject. If, by reason of distance, badness of roads, for $50,000, and had therefore dried up this source sickness, or any other accident, this one judge of litigation in that State.

failed of attendance, or if he and the district judge The recovery of British debts, too, was nearly differed on any point, a delay was occasioned. over. This had been a fruitful source of litigation. If the same judge attended the same circuit at Our citizens had been sued, and their late hard the next term, another delay, and so on, till earnings of property had been seized to satisfy experience taught us, that sume alteration in the British demands, whilst their former property had system was requisite. It will be recollected, that been taken from them by British arms during the judges had to travel over this extensive counthe war.

try twice in each year, and to encounter the exI am surprised to hear the cry, that our liberties tremes of both heat and cold. Of this they comand the Constitution are endangered, from the plained; but this was not all; the business was quarter from whence it is now urged. When such not done. remarks had been made by those gentlemen with At several sessions of Congress, the subject of whom I generally acted on former occasions, the the circuit courts was before them; committees instantaneous cry was against demagogues, who, were appointed in both Houses, and in more than by artfully in flaming the passions of the people one communication of the Executive at the comagainst the Government, wished to break down mencement of sessions, a revision of the system the Constitution.

was recommended: I cannot, on memory, detail A gentleman had talked about a victory medi- the exact particulars, or order of time; but in the tated over the Constitution. Not by the President; Speech made by the President at the opening of not by us. By whom then was it meditated ? | the session of 1799, the subject is stated as follows: Was it by the House of Representatives? Or was

“ To give due effect to the civil administration of Gov. it by the people themselves that same people whom we were to save from their greatest enemy,

ernment, and to insure a just execution of the laws, a

revision and amendment of the judiciary system is in. themselves ? For my part, I believe in the medi

dispensably necessary. In this extensive country, it tation of no such victory. Sooner, for my part,

* cannot but happen, that numerous questions respecting than participate in it, by voting for this resolu

the interpretation of the laws, and the rights and du. tion, it I thought it would have such a tendency, ties of officers and citizens, must arise. On the one I would cut off my hand, or cut out my tongue.hand, the laws should be executed-on the other, inI respect and love the Constitution, and my great dividuals should be guarded from oppression ; neither wish is, with father Paul, to cry out, as respects of these objects is sufficiently assured, under the preit, esto perpetua.

• sent organization of the judicial department; I thereMr. Tracy, of Connecticut.-Feeble as I am, fore earnestly recommend the subject to your serious I have thought it my duty to offer my sentiments I. consideration.”



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