Chapter M: X. again called upon us. He said M. Talleyrand was (25)

But the constitution is said to forbid it. And here permit me to express my satisfaction, that gentlemen have agreed to construe the constitution by the rules of common sense. This mode is better adapted to the capacity of unprofessional men, and will preclude the gentleman from arrogating to himself, and half a dozen other characters in this committee, the sole right of expounding that instrument, as he had done in the case of the law which is proposed to be repealed. Indeed, as one of those who would be unwilling to devolve upon that gentleman the high priesthood of the constitution, and patiently submit to technical expositions which I might not even comprehend, I am peculiarly pleased that we are invited to exercise our understandings in the construction of this instrument. A precedent, said to be quite analogous, has been adduced--the decision of the judges of Virginia, on a similar question. A pamphlet, entitled "A Friend to the Constitution," has been quoted. Public opinion informs me that this is the production of the pen of a gentleman who holds a pre-eminent station on the Federal bench. Am I so to consider it? If this be understood, it is entitled to high respect; the _facts_, at least, must be unquestionable.

The courts of Virginia consisted of one general court of common law; a court of chancery, composed of three judges; and a court of admiralty. The judges of all those courts held their office during good behavior; and did, by law, constitute a court of appeals. The general court becoming manifestly incompetent to the extensive duties assigned to it, a system of circuit courts was adopted in 1787, and the judges of the court of appeals were appointed to ride the circuits. This law the judges pronounced unconstitutional, and agreed, unanimously, to remonstrate against it. After lamenting the necessity of deciding between the constitution and the law, and that, in a case personally interesting to themselves, they say, "on this view of the subject, the following alternatives presented themselves; either to decide the question, or resign their offices. The latter would have been their choice, if they could have considered those questions as affecting their individual interests only." Yes, sir, and such was the character of those men, that none doubted the sincerity of this declaration. They then go on to declare, that the Legislature have no right even to increase their duties, by a modification of the courts; a privilege for which no one here has contended. In respect, much more, it is believed, to the characters of those venerable men, than to this opinion, the Legislature did not enforce the new regulations. The law was new-modelled, a separate court of appeals established, the judges of which were to be elected by joint ballot, in conformity with the constitution. New members were added to the general court, and it was declared to be their duty to ride the circuits. The judges of chancery, of the general court, and court of admiralty, who had not been elected, in pursuance of the constitution, judges of appeals, but on whom that duty was imposed by law, were relieved from the further discharge of it. In this arrangement several of the judges were understood to have been consulted; and on the ballot the six senior judges were elected, five into the court of appeals, and the sixth in the court of chancery. Nevertheless, against this law the judges also protested, as an invasion of the Judiciary establishment, denying the right of the Legislature to deprive them of office in any other mode than is pointed out in the constitution, (impeachment;) but to make way for the present salutary system, they do, in their mere free will, resign their appointments as judges of the court of appeals, and as they do not hold any separate commission for that office, which might be returned, they do order the same to be recorded.

Now, sir, I shall not contend, as I certainly might, and with great reason, that the practice of Virginia must be considered as settling the constitutional doctrine of the State, the opinions of individuals, however enlightened and respectable, notwithstanding; under which practice two chancellors have been removed from their office of judges in chancery, as well as of appeals, and the judges of the general court and court of admiralty also divested of their seats on the bench of the court of appeals, although a court of appeals was supposed necessary, and was retained in the new system; nor shall I insist on the disparity between the stability of the Judicial branch of Government in the eye of the Constitution of Virginia, and that of the United States, respectively, as surely I might. For the constitution of Virginia has a retrospect to pre-existing Judicial establishments, which experience had tested, which were allowed to be beneficial, and which it is contended were sanctioned by it. That of the United States, formed when the Confederacy had no such establishments, is to be created, from time to time: in other words, to be modified, as experience shall point out their defects--this power being devolved on a body constituted by express _unalterable_ provisions. No, sir, I shall not dilate upon these forcible topics; I will concede, for argument sake, that the doctrine contended for by the judges of Virginia, was the true constitutional doctrine, and will apply it to the bill on your table, having first applied it to the act on which it is intended to operate. Previous to the existence of that act, the duty of judge of the circuit court was performed by the judges of the Supreme Court, who constituted a court of appeals, and by the judges of the respective districts. These were judges of the circuit court to every intent and purpose, as completely as the judges of Virginia were judges of appeals. By the operation of the law of the last session, they have been divested of this _office_, and other persons have been appointed to it. Much stress is laid, much ingenuity exercised to make metaphysical distinctions between the court and the office. I will grant all that gentlemen contend for, that there is a wide distinction. Does it affect the case? Does it alter the fact? The late circuit courts were not only abolished--the persons holding the office of judge of those courts no longer hold it; they have neither been impeached, nor have they resigned. They have not even accepted any new appointment inconsistent with it, and by which it became vacant. The function of judge of the circuit court does or does not constitute an office. If it does, then the judges of the supreme and district courts have been deprived of their offices, (the discharge of whose duties, be it remembered, constitutes no small part of the consideration for which they receive their salaries.) If it does not, then the circuit judges are not now about to be deprived of their offices. On the passage of the law of last session, did we hear any protest against its unconstitutionality from the Supreme or district courts? Of any resignations of the office of judge of the circuit court, in order "that a salutary system might take effect?" And yet, sir, is not that office as distinct from that of Supreme or district judge, as the office of judge of appeals in Virginia is from that of judge of the general court, chancery, or admiralty? Are not the jurisdictions of those courts separate and distinct? Both never having original jurisdiction of the same subjects; and an appeal lying from the inferior to the superior tribunal, as in Virginia, although the officers of those tribunals may be the same individuals? What, then, is the difference between taking the office of appellate jurisdiction from the judge who possessed original jurisdiction, or taking the office of original jurisdiction from the appellate judge? How is the independence of the judge more affected by the one act than by the other?

To prove the unconstitutionality of this bill, then, by a recurrence to the doctrine of the judiciary of Virginia, is to prove the unconstitutionality of the law of which it will effect the repeal. And no argument has been, or, in my poor opinion, can be, adduced, to prove the unconstitutionality of the one, which will not equally apply to the other. No, sir, gentlemen are precluded by their own act from assuming the ground of the judges of Virginia; they are obliged to concede that we have the power, because they have already exercised it, of modifying the courts, and here they concede the question. They tell you that this, however, must, to be constitutional, be a "bona fide" modification. It becomes them to prove, then, that this is a _mala fide_ modification.

Gentlemen have not, they cannot meet the distinction between removing the judges from office for the purpose of putting in another person, and abolishing an office because it is useless or oppressive. Suppose the collectors of your taxes held their offices by the tenure of good behavior, would the abolition of your taxes have been an infraction of that tenure? Or would you be bound to retain them, lest it should infringe a private right? If the repeal of the taxes would be an infringement of that tenure, and therefore unconstitutional, could you ring all the changes upon the several duties on stamps, carriages, stills, &c., and, because you had retained the man and any one of these offices without diminishing his emoluments, abolish the others? Would not this be to impair the tenure of the office which was abolished, or to which another officer might have been appointed by a new regulation? Have not the judges, in the same manner, been deprived of one of their offices? And is not the tenure as completely impaired thereby, as if the other had been taken away also? Although it will be granted that the _tenant_ is not so much affected, since, with one office, he has the salary formerly attached to both.

I agree that the constitution is a limited grant of power, and that none of its general phrases are to be construed into an extension of that grant. I am free to declare, that if the intent of this bill is to get rid of the judges, it is a perversion of your power to a base purpose; it is an unconstitutional act. If, on the contrary, it aims not at the displacing of one set of men, from whom you differ in political opinion, with a view to introduce others, but at the general good by abolishing useless offices, it is a constitutional act. The _quo animo_ determines the nature of this act, as it determines the innocence or guilt of other acts. But we are told that this is to declare the Judiciary, which the constitution has attempted to fortify against the other branches of Government, dependent on the will of the Legislature, whose discretion alone is to limit their encroachments. Whilst I contend that the Legislature possess this discretion, I am sensible of the delicacy with which it is to be used. It is like the power of impeachment, or of declaring war, to be exercised under high responsibility. But the power is denied since its exercise will enable flagitious men to overturn the Judiciary, in order to put their creatures into office, and to wreak their vengeance on those who have become obnoxious by their merit. Yet the gentleman expressly says, that arguments drawn from a supposition of extreme political depravity, prove nothing; that every Government pre-supposes a certain degree of honesty in its rulers, and that to argue from extreme cases is totally inadmissible. Yet the whole of this argument is founded on the supposition of a total want of principle in the Legislature and Executive. In other words, arguments drawn from the hypothesis are irresistible when urged in favor of that gentleman's opinion; when they militate against him, they are totally inapplicable. It is said that the bill on your table cannot constitutionally be passed, because unprincipled men will pervert the power to the basest of purposes; that, hereafter, we may expect a revolution on the bench of justice, on every change of party, and the politics of the litigants, not the merits of the case, are to govern its decisions. The Judiciary is declared to be the guardian of the constitution against infraction, and the protection of the citizen, as well against Legislative as Executive oppression. Hence the necessity of an equal independence of both. For it is declared to be an absurdity, that we should possess the power of controlling a department of Government which has the right of checking us; since thereby that check may be either impaired or annihilated. This is a new doctrine of check and balance, according to which the constitution has unwisely given to an infant Legislature the power of impeaching their guardians, the judges. Apply this theory to the reciprocal control of the two branches of the Legislature over each other and the Executive, and of the Executive over them. But, sir, this law cannot be passed, because the character of the bench is to be given to it by the Legislature, to the entire prostration of its independence and impartiality. It will be conceded, that measures, such as have been portrayed, will never be taken, unless the sentiment of the ruling party is ready to support them. Although gentlemen contend, that the office of judge cannot be abolished, they are not hardy enough to deny that it may be created. Where then, sir, is the check, supposing such a state of things as the gentleman has imagined, (and which he has also declared cannot be conceived,) which shall prevent unprincipled men from effecting the same object by increasing the number of judges, so as to overrule, by their creatures, the decisions of the courts? Would not public opinion be as ready to sanction the one as the other of these detestable acts? Would not the same evil which has excited such apprehension in the minds of gentlemen, be thus effected by means even more injurious than those which they have specified? Without any breach of the constitution an unprincipled faction may effect the end which is so much apprehended from the measure now contemplated to be adopted. I might add, that, when the public sentiment becomes thus corrupt, the ties of any constitution will be found too feeble to control the vengeful ambition of a triumphant faction. The rejection of this bill does not secure the point which has furnished matter for so much declamation. Its friends are represented as grasping at power not devolved upon them by the constitution, which hereafter is to be made the instrument of destroying every judicial office, for the purpose of reviving them and filling the places with their partisans.

I have long been in the habit of attending to the arguments of the gentleman from Delaware, and I have generally found, in their converse, a ready touchstone, the test of which they are rarely calculated to withstand. If you are precluded from passing this law, lest depraved men make it a precedent to destroy the independence of your Judiciary, do you not concede that a desperate faction, finding themselves about to be dismissed from the confidence of their country, may pervert the power of erecting courts, to provide to an extent for their adherents and themselves? and that however flagrant that abuse of power, it is remediless, and must be submitted to? Will not the history of all Governments warrant the assertion, that the creation of new and unnecessary offices, as a provision for political partisans, is an evil more to be dreaded than the abolition of useless ones? Is not an abuse of power more to be dreaded from those who have lost the public confidence than from those whose interest it will be to cultivate and retain it? And does not the doctrine of our opponents prove that, at every change of administration, the number of your judges are probably to be doubled? Does it not involve the absurdity that, in spite of all constitutional prohibitions, Congress may exercise the power of creating an indefinite number of placemen, who are to be maintained through life at the expense of the community? But, when these cases are cited, you are gravely told that they suppose a degree of political depravity which puts an end to all argument. Here, sir, permit me to state an important difference of opinion between the two sides of this House. We are accused of an ambitious usurpation of power; of a design to destroy a great department of Government, because it thwarts our views, and of a lawless thirst of self-aggrandizement which no consideration can restrain. Let us not be amused by words. Let us attend to facts. They will show who are contending for unlimited, and who for limited power. The opponents of this bill contend that they did possess the power of creating offices to an indefinite amount; which, when created, were beyond the control of the succeeding Legislature. They, of course, contend for the existence of such a power in the present Legislature, for whose exercise there is no security but their self-respect. In other words, that if the present majority should incur the suspicion of the people, they may, as soon as there is any indication of their having forfeited the public confidence, on the signal of their dismissal from their present station, make ample and irrepealable provision for themselves and their adherents, by the creation of an adequate number of judicial offices. Now, sir, this is a power which we reject, though it is insisted that we possess it. We deny that such an authority does exist in us. We assert that we are not clothed with the tremendous power of erecting, in defiance of the whole spirit and express letter of the constitution, a vast judicial aristocracy over the heads of our fellow-citizens, on whose labor it is to prey. Who, then, are, in reality, the advocates of a limited authority, and who are the champions of a dangerous and uncontrollable power? In my estimation, the wisest prayer that ever was composed is that which deprecates the being led into temptation. I have no wish to be exposed myself, nor to see my friends exposed, to the dangerous allurements which the adverse doctrine holds out. Do gentlemen themselves think that the persons, whom I see around me, ought to be trusted with such powers? Figure to yourselves a set of men, whose incapacity or want of principle has brought on them the odium of their country, receiving, in the month of December, the solemn warning, that on the 4th of March following, they are to be dismissed from the helm of Government; establish the doctrine now contended for, and what may we not expect? Yes, sir, the doctrine advanced by our opponents is that of usurpation and ambition. It denies the existence of one power by establishing another infinitely more dangerous; and this you are told is to protect, through the organ of an independent judiciary, the vanquished party from the persecution of their antagonists, although it has been shown that, by increasing the number of judges, any tone whatever may be given to the bench.

The theory for which gentlemen contend seems to me far-fetched and overstrained. A mighty enginery is set in motion, which to all good purposes is ineffectual, although formidable in the perpetration of mischief. If, however, the people should be of a different opinion, I trust that at the next election they will apply the constitutional corrective. That is the true check; every other check is at variance with the principle, that a free people are capable of self-government.

But, sir, if you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. Here is a new power, of a dangerous and uncontrollable nature, contended for. The decision of a constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people, or to those who are irresponsible? for the responsibility by impeachment is little less than a name. From whom is a corrupt decision most to be feared? To me it appears that the power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. But an extreme case is put; a bill of attainder is passed; are the judges to support the constitution or the law? Shall they obey God or Mammon? Yet you cannot argue from such cases. But, sir, are we not as deeply interested in the true exposition of the constitution, as the judges can be? With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion, which can and will check their aberrations from duty? Let a case, not an imaginary one, be stated: Congress violates the constitution by fettering the press; the judicial corrective is applied to; far from protecting the liberty of the citizen, or the letter of the constitution, you find them outdoing the Legislature in zeal; pressing the common law of England to their service where the sedition law did not apply. Suppose your reliance had been altogether on this broken staff, and not on the elective principle? Your press might have been enchained till doomsday, your citizens incarcerated for life, and where is your remedy? But if the construction of the constitution is left with us, there are no longer limits to our power, and this would be true if an appeal did not lie through the elections, from us to the nation, to whom alone, and not a few privileged individuals, it belongs to decide, in the last resort, on the constitution. Gentlemen tell us that our doctrine will carry the people to the gallows if they suffer themselves to be misled into the belief that the judges are not the expositors of the constitution. Their practice has carried the people to infamous punishment, to fine and imprisonment; and had they affixed the penalty of death to their unconstitutional laws, judges would not have been wanting to conduct them to the gibbet.

Mr. MACON.--As no other member at present seems disposed to take the floor, I will ask the attention of the committee for a few minutes. I have attended with the greatest patience and diligence, to the arguments of gentlemen who oppose the bill as unconstitutional; and had they produced a single doubt in my mind on the point of constitutionality, I should most certainly have voted with them against the bill on your table; but I can with truth say, I have not heard any argument which has in the least changed my first conviction, that we have a constitutional right to pass it.

I should not, I believe, have spoken on this question, had not my colleagues, who differ with me in opinion, thought proper to bring into view a vote of the Legislature of the State, instructing her Senators and recommending it to the Representatives to use their best endeavors to obtain a repeal of the last Judiciary act. On this resolution of the State Legislature, they made some extraordinary remarks, which I mean to notice; but first permit me to inform the committee, that it has been the constant practice of the Legislature of that State, from the commencement of the General Government to the present day, to instruct her Senators, and to recommend to her Representatives, to pursue such measures on all the great national questions that have occurred, as the Legislature judged the interest of the State required, and this proceeding has never been considered improper. I shall endeavor to answer the gentlemen in the order they spoke, beginning with my colleague (Mr. HENDERSON,) who was first on the floor. If I understand him rightly, (and if I do not he will correct me, because it is not my desire to misstate a single word,) he said that the Legislature of the State might have adopted the resolutions in consequence of the Message of the President; but, upon examination of the dates, this will be found to be impossible. The message could not have reached the Legislature before the question on the resolutions was taken and decided; and on no important question was that body ever more unanimous; and though my colleague has said the question was there viewed but on one side, and decided in a manner _ex parte_, yet I will be bold to say, if there were any members in that Legislature who thought on this subject as he does, he enjoyed the same right there that my colleague does here, to deliver his sentiments.

Knowing as I do the great talents and integrity of my colleague, and I believe no one on this floor knows them better, I was surprised when he charged others with being under the influence of passion, when his conduct must convince them that he was guided by the very passion which he attributed to others. He quoted the Constitution of North Carolina, let us examine it, and see whether his argument can be aided by the practice under that instrument. The thirteenth article is in the following words: that "the General Assembly shall, by joint ballot of both Houses, appoint judges of the supreme court of law and of equity, judges of admiralty, and attorney general, who shall be commissioned by the Governor, and hold their offices during good behavior." On this clause he noted the independence of the State Judiciary; and they are independent so long as the law creating their office is in force, and no longer; and it is worthy of notice, that in this section, no mention is made of salary, and yet the judges have been considered as independent as the Judges of the United States. Soon after the adoption of the constitution, the Legislature of the States established courts in conformity thereto; first county courts, and then superior, and afterwards, by a Legislative act, without electing a single new judge, gave the superior courts the additional jurisdiction of a court of equity, and never a solitary complaint, that this law was unconstitutional; and it must be acknowledged, that if you can make a court of law also a court of equity, by a Legislative act, you can by the same power take it away; and what becomes, in this case, of the commission which is to be held during good behavior? It is, according to my construction, to last no longer than the law which created the office remains in force, and this is long enough to make the judges independent. As to the salary of the Judges of North Carolina, the twenty-first section of the constitution says, "they shall have adequate salaries during their continuance in office," and yet with this clear right in the Legislature, to lessen as well as to add to their salaries, the judges, it is agreed, are independent. My colleague well knows, that many attempts have been made to deprive the superior courts of exercising any jurisdiction in cases of equity; and he also knows, that attempts have been made to establish a court of appeals, which should revise the decisions of the superior courts now in being; and by the constitution of the State, any supreme court may, on presentment of a grand jury, try the governor for maladministration, &c., and I believe the present courts are authorized to do this. I have not at this place been able to see the act which gives this authority; but no doubt is entertained of the fact.

It is clear, then, that in North Carolina, all parties have thought, that "during good behavior," only meant so long as the office existed; because, by establishing a court of appeals, the judges now in being would not be supreme judges, and in all these various attempts, no one ever charged either of them to be unconstitutional. On examination of the Constitution of North Carolina, it will be found that it makes provision for the appointment of other officers by the Legislature, but says nothing about adequate compensation, except in the section last read, and if you take the office away, what is an adequate compensation for doing nothing? Another proof might be drawn from the Constitution of North Carolina, in favor of the opinion I hold, which is taken from the twenty-ninth section, that "no Judge of a Supreme Court shall have a seat in the General Assembly," and my colleague knows, that the present judges could not hold a seat there, because they are supreme judges. And he also knows, that no one ever doubted the constitutional right of the Legislature to establish the courts before mentioned; and it seems to me this, on his construction, would be a violation of the constitution, because, having once made a Supreme Court, it must always remain so, to secure, what he calls, the independence of the judges.

Sir, I was astonished when my colleague said, that the judges should hold their offices, whether useful or not, and that their independence was necessary, as he emphatically said, to protect the people against their worst enemies, themselves; their usefulness is the only true test of their necessity, and if there is no use for them, they ought not to be continued. I will here ask my colleague whether, since the year 1783, he has heard of any disorder in the State we represent, or whether any act has been done there which can warrant or justify such an opinion, that "it is necessary to have judges to protect the people from their worst enemies, themselves." I had thought we, the people, formed this Government, and might be trusted with it. My colleague never could have uttered this sentence, had he not been governed by that passion which he supposes governs others. It is true that we are not a rich and wealthy State, but it is equally true, that there is no State in the Union more attached to order and law; and my colleague himself would not say that it was necessary to have judges for this purpose in the country we represent; the people there behave decently without having Federal judges, or standing armies, to protect them against themselves. Is it not strange, that the people should have sense enough to pay their taxes without being driven to it by superior force, and not have sense enough to take care of themselves without this new Judiciary? They certainly contrived to do this before the act establishing this Judiciary passed.

Another expression of his equally astonished me; he said, that on the 7th day of December, a spirit which had spread discord and destruction in other countries, made its entry into this House. What! are we to be told, because at the last election the people thought proper to change some of their representatives, and to put out some of those who had heretofore been in power, and to put others in power of different opinions, that a destroying spirit entered into all the public functionaries? For what, sir, are elections held, if it be not that the people should change their representatives when they do not like them? And are we to be told from the house-tops, that the only use of elections is to promote, not public good, but public mischief? We are also told, that this constitution was to be destroyed by the all-devouring energies of its enemies. Who are its enemies? We are not, nor do I think there are any in this House; but there are parties as well in this House as out of doors, and no man wishes more sincerely than I do, that they were amalgamated, that we might get rid of all party gall, and free ourselves from improper reflections hereafter. But by what energy is the constitution to be destroyed? The only energy heretofore used, and which made the change so much complained of, was the energy of election. Sir, I scarcely know what to say when I hear such uncommon sentiments uttered from a head so correct and a heart so pure; it is the effect of a passion of which he is unconscious. Again he says, if you repeal this law, the rich will oppress the poor. Nothing but too much law can any where put it in the power of the rich to oppress the poor. Suppose you had no law at all, could the rich oppress the poor? Could they get six, eight or ten per cent. for money from the poor without law? If you destroy all law and government, can the few oppress the many, or will the many oppress the few? But the passing the bill will neither put it in the power of the rich to oppress the poor, nor the poor to oppress the rich. There will then be law enough in the country to prevent the one from oppressing the other. But while the elective principle remains free, no great danger of lasting oppression can be really apprehended; as long as this continues, the people will know who to trust.

We have heard much about the judges, and the necessity of their independence. I will state one fact, to show that they have power as well as independence. Soon after the establishment of the Federal Courts, they issued a writ--not being a professional man I shall not undertake to give its name--to the Supreme Court of North Carolina, directing a case then depending in the State court to be brought into the Federal Court. The State Judges refused to obey the summons, and laid the whole proceedings before the Legislature, who approved their conduct, and, as well as I remember, unanimously; and this in that day was not called disorganizing.

As so much has been said about the resolutions of North Carolina, I will repeat again, that it is no uncommon thing for the Legislature to express their opinion on great national subjects, and will ask my colleagues whether they ever heard any complaint of the resolutions about the Western land? And whether none of them in the Legislature never voted for the resolutions about the western land, nor about post-offices and post-roads? The Legislature surely had as much right to give an opinion as the Chamber of Commerce of New York; but, put it upon what footing you please, it is entitled to respect, as the uninfluenced opinion of so many respectable individuals; and the Legislature never intended nor wished that the recommendation to the representatives should be binding on them at all events; and if I believed the bill to be unconstitutional, I should not vote for it, but as I do not, I hope the gentleman will pardon me for pursuing my own sentiments, and voting for it. I hope no man will ascribe to me a disposition to produce anarchy in my native country. Although poor myself, I feel as strong a desire as any one on this floor for the preservation of good order and good government.

It has been asked, by the gentleman from Delaware, (Mr. BAYARD,) will the gentleman from Virginia (Mr. GILES) say, the assuming the State debts was improper? I have no hesitation to say that it was done at an improper time; and, in showing that it was, I hope I shall be pardoned for travelling over topics that really have nothing to do with the merits of the present question. That act is now done, and, by what I say, it is not to be understood that I wish Congress should put their hands upon it. It will be noticed that Congress are authorized to establish post-offices and post-roads for the general and equal dissemination of information throughout the United States; and is it not known that no act was passed on that subject before the assumption of the State debts, and that there was only one post-road which run near the sea-coast? Of course, the people in the interior country had no communication with those in the Government, nor had they any knowledge of what was doing. But the rich speculator, who was on the spot, by going into the country where the people were ignorant of what had been done, purchased up their certificates--the only reward they had received for their toil and wounds--at about one-tenth of their value. And it is possible that many of these purchases may have been made with public money. And it is clear to me, that if a proper number of post-roads had been established, before the act was passed for assuming the State debts, the war-worn soldier would not have lost half as much as he did by the speculation on his certificates.

The gentleman from Delaware says we drove them to the direct tax. This is the first time I ever heard of a minority driving a majority. Is such a thing possible? Did we drive them to the measures that made such immense expenditures of the public money necessary? No, sir, we opposed those measures as useless; and the true ground of the direct tax is this: the public money was expended; public credit was stretched, until, to preserve it, it became necessary to provide for paying, and the means adopted were the direct tax.

The same gentleman tells us there is nothing sacred in the eyes of infidels. We know our opponents. The allusion here is too plain not to be understood; and evidently is, that those who differ with him in opinion are infidels. This is a strong expression; it would have seemed that his love of Americans ought to have prevented the use of it. I shall make no answer to it, except to remind him that in a book, the truth of which he will not deny, he will find these words, "_Judge not, lest ye be judged_." He also said that gentlemen might look to the Executive for victims, and not to the judges. Notwithstanding this remark, and without condemning or approving the appointments made by the late President, I hope I may be permitted to express my own ideas, without being considered as under the influence of the present President. Prior to the fourth of last March, all, or nearly all, the offices in the gift of the Executive, were in the hands of men of one political opinion. On that day, the people changed the President, because they did not like measures that had been pursued. But, to those who have attended to the debates in this House, it must appear strange, indeed, to hear gentlemen complain of the President having in office those who agree with him in opinion, when we were formerly told that the President would do wrong if he appointed to office those who differed from him in political opinion; and whenever he had done it, he had had cause to repent of it. Was that opinion then correct, and now false, in the estimation of gentlemen? For my part, I did not think the opinion correct when I first heard it, nor have I since been convinced of its propriety. Indeed, before I can think so, I must have a worse opinion of human nature than I now have, and think of men as they pretend to think of us, which God forbid! But, taking things as they are, what course, on this point, is most fair and tolerant? The community, as well as this House, is divided into two parties. It seems to me, that all the most tolerant could wish, would be an equal division of the offices between the parties, and thus you might fix a reciprocal check on each other. But I ask gentlemen to be candid, and tell me whether they are at this time equally divided? Sir, they know that there are many more persons who now fill offices who agree with them in opinion than agree with us. As to myself, I care not who fill offices, provided they act honestly and faithfully in them. I can with truth say, so little party attachment have I on this head, that I never solicited to have any man discharged from office. Knowing that a large majority of those now in office agree with those gentlemen in political opinion, I am at a loss for the cause of all this clamor. They have no doubt some reason for it, which has not been declared. The fact is, they have a majority of the offices, and a majority of the people are with us. I am contented it should be so.

The gentleman has dwelt much on a subject which, from my habits of life, I am not enabled fully to notice; I must decide for myself, and, judging with the small share of information I possess, I cannot agree with him. I do not pretend to understand the subject as well as he does, but certainly he was not so perspicuous as it might have been expected. I mean, sir, his opinion on the common law. He told us that the judges only adopted such parts of the common law of England as suited the people, and that he apprehended no danger from this. Sir, I do apprehend danger from this, because I cannot find any authority given them in the constitution to do it, and I suppose it is not an inherent right. Without pretending to know the extent of this common law, it has always appeared to me to be extremely dangerous to the rights of the people, for any person not elected by them, to undertake to exercise the power of legislating for them, and this adopting the common law is only another name for legislation. He has also told us, that the States had adopted it. If the States adopted it, it became a law of the State, and not of the United States; but the adoption of it by the individual States, could not give the judges a right to adopt it for the United States. The judges have no powers but what are given by the constitution or by statute, and this power cannot be found in either. He even told us, that the constitution was a dead letter without it. I do not believe this was the opinion of the convention that formed it, and by an examination of the debates of the State conventions that ratified it, it will not be found to be their opinion; nor is it, I believe, the opinion of all the Judges of the Supreme Court, that the constitution would be a dead letter without the common law of England. I have understood, that one of them has given it as his opinion, that the common law was not in force in the United States. The gentleman told us, that the Sedition law was constitutional, and that the judges had so determined. This we have often been told before; but, in my opinion, the contrary is the fact. I firmly believe there is no authority given in the constitution to pass that law, and although the judges agree with him in opinion, I believe the people agree with me. He, like my colleague, did not pretend to say that the judges under the old system had too much business, but too much riding. The whole burden of the song seems to be riding and salary, salary and riding; you may destroy the office, but the officer must have his salary, and this I suppose without riding. The old system was, in my opinion, equal to every object of justice contemplated by its establishment.

The gentleman has ascribed to us the wish to have the courts viciously formed. Is it possible, that he can have so degrading an idea of the American people, as to suppose they would send men here to legislate on their dearest interests, so base and corrupt, as to wish their courts so formed, that vice and not virtue should prevail in them? I am happy to say that gentleman is the only one who has uttered a sentiment so abhorrent to human nature. He also said, if you permit the State courts to execute your laws, you would have no constitution in ten years. I have not heard any one express a desire that you should have no courts, or that the State courts should execute all your laws; but I do not believe, that if the State courts were to execute your laws, that they would destroy the constitution which they are sworn to support. He has told us that we paid millions for an army which might be useless, and refused thousands to a Judiciary which was useful. As to the army, those who agree with me in sentiment, are as clear of it as it is possible for men to be of any political sin whatever; we always considered them useless, except in a small degree, and voted against them.

But, says he, this is the President's measure; he may prevent it. This is indeed a bold assertion. Are a majority of this House so degraded, so mean, so destitute of honor or morality, as to act at the nod of a President? What the majority may hereafter do, I cannot tell; but I can say, as yet they have done nothing which even the eye of criticism can find fault with. But are we to infer from these charges, that it has heretofore been the practice for the President to give the tone to the majority of the House, and to wield them about as he pleased? I had, before, a better opinion of our adversaries. I had thought, and still think, that no man can wield a majority of this House; that the House is, and has been, too independent for this; to think otherwise, would be degrading to my country. Sir, I do not believe the gentleman from Delaware himself, with all his talents, can wield those with whom he generally votes, at his will and pleasure.

Much has been said about the manner in which the late law was passed, and the purpose for which it was done. I hope I shall be pardoned for saying nothing on this subject; enough, if not too much has already been said on it; nor can I conceive that it has any thing to do with the question.

The true question is, were there courts enough under the old system, to do the business of the nation? In my opinion there were. We had no complaints that suits multiplied, or that business was generally delayed; and when gentlemen talk about Federal courts to do the business of the people, they seem to forget that there are State courts, and that the State courts have done, and will continue to do almost the whole business of the people in every part of the Union; that but very few suits can be brought into the Federal courts, compared with those that may be brought into the State courts. They will be convinced that under the old system, we had federal judges and courts enough; besides, sir, I believe each State knows best what courts they need, and if they have not enough, they have the power and can easily make more. I am sure the old system answered every purpose for the State I live in as well as the new.

He also told us, that we attempt to do indirectly what we cannot do directly. I do not know of any such attempt. The bill is certainly a direct attempt to repeal the act of the last session; but I have seen things done indirectly which I believe could not have been done directly; such was the army of volunteers; it surely was an indirect attempt to officer and get possession of the militia. The same gentleman challenges us to say there are any in the United States who prefer monarchy. In answer to this, I say, there were such during the American revolutionary war, and I have not heard that they had changed their opinion; but as he has told us there were jacobins in the country, it is not unfair to suppose there are monarchists; they being the two extremes. We are also charged with a design to destroy the whole Judiciary. If there is such a design, this is the first time I ever heard it; no attempt of the kind is yet made. But what is the fact? We only propose to repeal the act of the last session, and restore the Judiciary exactly to what it was for twelve years, and this is called destroying the Judiciary.

To complete the scene, we were told of the sword, of civil discord, and of the sword of brother drawn against brother. Why such declamation? Why do we hear of such things on this floor? It is for them to tell who use the expressions; to me they are too horrid to think of. Do gentlemen appeal to our fears, rather than to our understanding? Are we never to be clear of these alarms? They have often been tried without producing any effect. Every instrument of death is dragged into this question; sword, bayonet, hatchet, and tomahawk; and then we are told that the passing this bill may be attended with fatal consequences to the women and children. Can it be possible, sir, that the gentleman was really serious when he talked about an injury to women and children? He also told us, if you pass the bill and it should produce a civil war, not only himself but many enlightened citizens would support the judges. And have we already come to this, that enlightened citizens have determined on their side in case of a civil war, and that it is talked of in this assembly with deliberation and coolness? We certainly were not sent here to talk on such topics, but to take care of the affairs of the nation, and prevent such evils. In fact, it is our duty to take care of the nation, and not destroy it. Compare this with the conduct of the former minority. I challenge them to show any thing like it in all their proceedings. Whenever we supposed the constitution violated, did we talk of civil war? No, sir; we depended on elections as the main corner-stone of our safety; and supposed, whatever injury the State machine might receive from a violation of the constitution, that at the next election the people would elect those that would repair the injury, and set it right again; and this, in my opinion, ought to be the doctrine of us all; and when we differ about constitutional points, and the question shall be decided against us, we ought to consider it a temporary evil, remembering that the people possess the means of rectifying any error that may be committed by us.