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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 CосKE; and opposed by Messrs. WELLS and HILLHOUSE.

JANUARY, 1802.

ulation, 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.

But, Mr. President, there is another point of light in which I must be permitted to present the glaring injustice of this measure. By the Constitution of the United States, taxation is not apportioned among the respective States according to representation, but according to population. Delaware, then, although in the House of Representatives, where the money affairs of our country are principally managed, she has but one member, and Virginia twenty-one, is not taxed to the amount only of the twentieth part of the taxes of Virginia, according to representation, but to the amount of the twelfth part of the taxes of that State, according to population. Thus, sir, nearly one-half the citizens of Delaware are obliged to pay their proportion of taxes to the support of your Government, when you allow them no voice in either laying and disposing of those taxes, or, what is perhaps even more material, in pointing out the objects of taxation. Their situation may, in some respects, be likened to a very memorable grievance once heavily complained of in this country, when the Parliament of Great Britain arrogated to themselves the right of taxing our fathers without their consent.

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 Mr. WHITE, of Delaware.-Believing as I do, States; 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 the 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 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 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 fiftyother 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, consist the 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 twentyone. Sir, an additional Representative to any of the larger States is not of the same consequence as another would be to Delaware. To Virginia,

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 riot

JANUARY, 1802.

Judiciary System.

SENATE.

ous 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 Le-onded the motion to add, after "one representagislature. 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 enbled 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, sír, 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 sec

tive 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.

I am told, sir, that this has been made a party question; that party considerations influence it. What could have induced to this, is not for me to say; I will attribute no improper motives to any honorable gentleman, but it has not pleased God to bless me with sagacity enough to discover anything in it that even savored of party. Sir, parties have already attained in this country a sufficient height, not only for our happiness but for our safety; and it argues but a small regard for the public good, to stamp every subject with that complexion. If this question involves any separate interests, they are those, sir, of the smaller and larger States. With the former, then, the cause I advocate is a common cause, and I am sure gentlemen will give it due consideration, and not suffer any party feelings, however disguised, to influence them. Sir, a doctrine has of late been publicly avowed, which I must be permitted to notice, as, in my estimation, extremely hostile to the rights of the smaller States; it is said that the House of Representatives is not their ground, that they must look to themselves in the Senate, and take care on this floor that sovereignties are not destroyed. I hope gentlemen representing the smaller States will profit by this warning; it is well worth their attention; it comes, sir, from the largest and most influential State in the Union. The point it leads to, I presume not to say, and fear, sir, even to conjecture.

On the question to agree to the final passage of this bill, it was determined in the affirmativeyeas 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.

The following Message was received from the
PRESIDENT OF THE UNITED STATES:
Gentlemen of the Senate:

I now communicate to you a letter from the Secretary of State, enclosing an estimate of the expenses which appear at present necessary for carrying into effect the Convention between the United States of America, and the French Republic, which has been prepared at the request of the House of Representa

tives.

JANUARY 12, 1802.

TH: JEFFERSON.

The Message and papers accompanying it were read, and ordered to lie for consideration.

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 pres

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ent 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.

I conceive, that as this subject requires from us a legislative construction, that construction may as well, and indeed better, be now made; there will undoubtedly hereafter be a clashing of powers. I therefore think it is much better to decide it now, when the injury is felt, than to suffer it to take root until it shall extort a different and more violent decision than that of a deliberative body.

JANUARY, 1802.

ence 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 I will forbear making any further remarks of this kind, and go into an examination of the Constitutional grounds.

[Mr. J. here quoted the third article, first sec tion of the Constitution.]

the Supreme Court, is imperative and commanding, while the word may, applied to the inferior courts, is discretionary, and leaves to the Legisla ture a volition to act, or not to act, as it sees fit.

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 attached to the subject. Yet, I do not agree with the gentleman who has spoken, that the expense is trifling. The gentleman from New-York had held up the insignificancy of a cent a person, and had told us of Alfred's purse, which no one dared to take away. Let that gentleman calculate twelve souls to a family, and he will see that each family would pay twelve cents; a sum, however insignificant to the pocket of that gentleman, that might furnish a comfortable meal to a poor family. With the gentleman from Kentucky, however, I contend that the principle is as much settled by one cent as by a million. And this observation becomes in- | calculably dangerous, if it is to be drawn into precedent on every new project or improper measure, that it costs but a cent a person. And as to the remarks about Alfred, I might retaliate upon the gentleman, and say, that at that day twelve cents might have been a year's salary for a judge.

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 Sect. 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 duties 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 influ

Again, why are the peculiar and exclusive powers of the Supreme Court designated in the following section of the Constitution, but because the Constitution considered that tribunal as absolutely established; while it viewed the inferior tribunals as dependent upon the will of the Legislature? And that this was the case was evident from the conduct of the Supreme Court on the pension act, which that court had some time since declared unconstitutional; and which declaration, he was convinced, would not have been hazarded by an inferior tribunal.

But does this conclusion rest on judicial power alone? Is it no where else found under other heads of Constitutional power? Yes, sir, under the Legislative head of power, which is the first grant of power made by the Constitution. For by the eighth section of the first article of the Constitution, after enumerating the power of laying taxes, &c., it is declared in the ninth division thereof, "to extend to constitute tribunals inferior to the Supreme Court." Here, then, is a Legislative power given expressly to that body, without restriction or application to any other branch of the National Government. Let those lawyers who hear me decide on the construction of all grants or deeds, if two grants be made in the same deed to two different powers or persons, if the first does not exclusively vest?

Is there a single argument that can be assigned to oppose this construction of the Constitution? Do not the observations of gentlemen, who insist upon the permanent tenure of the Judicial office, place the creature above its creator, man above his God. the model above its mechanic? A good mechanic, when he constructs a machine, tries it; and if it does not succeed, he either mends it or throws it away. Is there not the same necessity for acting in the same way with the inferior tribunals of the Judiciary, which is no other than the machine of the Legislature?

But, upon the principles of gentlemen, the law

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. 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.

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.

But, said Mr. J., let us examine how we are to get at the creator. If the honorable gentleman will put us into the way of doing this with effect, I will abandon all my arguments for this motion. Look to the Constitution, and see how it is to be amended. It can only be amended on the recommendation of two-thirds of both Houses, or, on the application of two-thirds of the States, a convention shall be called, who are to propose amendments, afterwards to be ratified by three-fourths of the States.

There is required first, then, two-thirds of both Houses of Congress. Can this two-thirds be found now, or is there any probability of its being found for twenty years to come, who will concur in making the necessary alterations in the Judiciary system that are now, or may hereafter, be required? On this subject there are as many opinions as there are persons on this floor. I have indeed never found two persons precisely agree. How, then, can we expect three-fourths of the Legislatures of the several States to agree when we cannot agree among ourselves. There is, in fact, no amendment which could reach the case, and exhibit to view all the requisite and necessary regulations for such an extent of country. Such an attempt must form a volume, a Constitution by itself, and after all fall short of the object.

I am clearly, therefore, of opinion, that if the power to alter the Judiciary system vests not here, it vests no where. 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 Northwestern Territory, or in the Mississippi Territory, in both of which

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.

A gentleman from Massachusetts has asked if suits will go on diminishing, and if the millenium is so near at hand? Sir, different opinions are held on this subject; for some suppose the millenium to have arrived long since, and others that it may arrive, and others again that it never would arrive; but there is one thing certain, that the more courts

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you have, the greater temptation there is for litigation, and more suits, or rather evils, will flow from them. Law itself is but a necessary evil; for if mankind were perfect-were it not for their frailties and passions-there would be no occasion for it; and lawyers are a still greater evil, although, he acknowledged, a necessary one. They seldom discourage litigious suitors, and swarm in our courts; and there are here, as well as in every other country, persons so fond of law, and of persecution, that rather than not be in courts at all, they would direct their lawyers, as I have been formerly told of a man who applied for advice, and was informed he had no ground of action, to bring, then, a spite action. The State courts are open and competent to most of the inferior court business, and it ought to be thrown into that channel as much as possible.

With respect to the usefulness of the additional judges, created by the act of last session, it was, perhaps, unnecessary to add anything to what had been so ably observed by the gentleman from Kentucky. But I will state, for the information of the Senate, that in the Southern States of Georgia, South and North Carolina, a ground of great litigation is removed, one which had originated at least two hundred and fifty suits. Miller & Co. had obtained a patent for a ginning machine (God knew where it came from, but I believe that neither of them invented it) so as to make those States tributary to them, and embroil them in disputes. South Carolina had purchased that patent for $50,000, and had therefore dried up this source of litigation in that State.

The recovery of British debts, too, was nearly over. This had been a fruitful source of litigation. Our citizens had been sued, and their late hard earnings of property had been seized to satisfy British demands, whilst their former property had been taken from them by British arms during

the war.

I am surprised to hear the cry, that our liberties and the Constitution are endangered, from the quarter from whence it is now urged. When such remarks had been made by those gentlemen with whom I generally acted on former occasions, the instantaneous cry was against demagogues, who, by artfully inflaming the passions of the people against the Government, wished to break down the Constitution.

A gentleman had talked about a victory meditated over the Constitution. Not by the President; not by us. By whom then was it meditated? Was it by the House of Representatives? Or was it by the people themselves-that same people whom we were to save from their greatest enemy, themselves? For my part, I believe in the meditation of no such victory. Sooner, for my part, than participate in it, by voting for this resolution, if I thought it would have such a tendency, I would cut off my hand, or cut out my tongue. I respect and love the Constitution, and my great wish is, with father Paul, to cry out, as respects it, esto perpetua.

Mr. TRACY, of Connecticut.-Feeble as I am, I have thought it my duty to offer my sentiments

JANUARY, 1802.

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.

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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 sume 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.

At several sessions of Congress, the subject of the circuit courts was before them; committees were appointed in both Houses, and in more than one communication of the Executive at the commencement of sessions, a revision of the system was recommended. I cannot, on memory, detail the exact particulars, or order of time; but in the Speech made by the President at the opening of the session of 1799, the subject is stated as follows:

"To give due effect to the civil administration of Gov'ernment, and to insure a just execution of the laws, a ' revision and amendment of the judiciary system is indispensably necessary. In this extensive country, it 'cannot but happen, that numerous questions respecting the interpretation of the laws, and the rights and duties of officers and citizens, must arise. On the one hand, the laws should be executed-on the other, in'dividuals should be guarded from oppression; neither of these objects is sufficiently assured, under the pre'sent organization of the judicial department; I there'fore earnestly recommend the subject to your serious consideration."

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