# History of the United States During the Administrations of Thomas Jefferson/First/I:11
## Chapter 11: The Judiciary DebateChapter 11: The Judiciary Debate

The bill repealing the new Judiciary Act, having passed the Senate, February 3, was taken into consideration by the House, in Committee of the Whole, February 4, and caused the chief debate of the session. By common consent Giles and Bayard were accepted as the champions of the two parties, and their speeches were taken as the official arguments on either side. The men were equal to their tasks. For ten years William Branch Giles had been the most active leader of the extreme Republicans. A Virginian, born in 1762, he began his career as Member of Congress in 1791, by opposing the creation of a national bank. In 1793 he distinguished himself by an attack on Secretary Hamilton, charging him with peculation. In 1796 he led the opposition to Jay's Treaty. After opposing Washington's administration with consistency and severity during six years, he retired from Congress in 1798 in order to oppose Washington's successor with more effect in the legislature of Virginia. With James Madison, John Taylor of Caroline, and Wilson Cary Nicholas, he had taken an active part in the Resolutions of 1798, and his remarks in the debate of December, 1798, showed that he carried the extreme conclusions ​of the Virginia school to their extreme practical consequences. He "said that the measures of our present government tended to the establishment of monarchy, limited or absolute. . . . If . . . the government were a social compact, he pronounced monarchy to be near at hand, the symptoms and causes of which he particularly pointed out; and concluded that the State legislatures alone, at this time, prevented monarchy." In language perfectly intelligible to his friends he hinted that his party "had not arms, but they would find arms." Even men naturally benevolent, like Jefferson, could rarely resist the conviction that the objects of political opponents were criminal, but Giles exceeded every prominent partisan on either side by the severity of his imputations. As late as June, 1801, he wrote from Richmond to President Jefferson: "The ejected party is now almost universally considered as having been employed, in conjunction with Great Britain, in a scheme for the total destruction of the liberties of the people." No man in the Union was more cordially detested by the Federalists; and even between parties that held each other in little or no respect, few men of so much eminence were so little respected as Giles. The dislike and distrust were mutual. Giles's nature was capable of no pleasure greater than that of exasperating ​his Federalist opponents; and he rarely enjoyed a better opportunity for irritation than on Feb. 18, 1802, when, with a great majority behind him, and with the consciousness of triumph attained, he broke into the dull debate on the Judiciary Bill.
Both sides were weary of the narrow question whether Congress had the power to remove Judges by legislation. Whether such a power existed or not, every one knew that the Republican majority meant to use it, and the Federalists were chiefly anxious to profit by the odium they could attach to its abuse. The Federalists, in a character new to them, posed as the defenders of the Constitution against sacrilegious attacks; while the Republicans, for the first time in their history as a party, made light of constitutional objections, and closed their ears to warnings in which they had themselves hitherto found their chief rhetorical success. With Giles's appearance on the floor the tedious debate started into virulence. He began insinuating motives, as though he were still discussing the Alien and Sedition Laws in the Virginia legislature of 1798: "A great portion of the human mind," he began, "has been at all times directed toward monarchy as the best form of government to enforce obedience and insure the general happiness; whereas another portion of the human mind has given a preference to the republican form as best calculated to produce the same end." On this difference of opinion the two parties had been founded, the one wishing "to ​place in executive hands all the patronage it was possible to create for the purpose of protecting the President against the full force of his constitutional responsibility to the people;" the other contending "that the doctrine of patronage was repugnant to the opinions and feelings of the people; that it was unnecessary, expensive, and oppressive; and that the highest energy the government could possess would flow from the confidence of the mass of the people, founded upon their own sense of their common interest." Thus patronage, or in other words the creation of partial interests for the protection and support of government, had become the guiding principle of the Federalists. For this purpose the debt was funded; under cover of an Indian war, an army was created; under cover of an Algerine war, a navy was built; to support this system, taxation was extended; and finally, by availing itself of French depredations on commerce, the Administration succeeded in pushing all the forms of patronage to an extreme. When the people at last rebelled, and the Federalists saw themselves in danger, "it was natural for them to look for some department of the government in which they could intrench themselves in the event of an unsuccessful issue in the election, and continue to support those favorite principles of irresponsibility which they could never consent to abandon."
Whatever amount of truth was contained in these charges against the Federalists, they had the merit ​of consistency; they reaffirmed what had been the doctrine of the party when in opposition; what Jefferson was saying in private, and what was a sufficient argument not so much against the circuit judges as against the Federalist Judiciary altogether; but the position seemed needlessly broad for the support of the technical argument by which Giles proved the power of Congress in regard to the measure under discussion:—
    "On one side it is contended that the office is the vested property of the judge, conferred on him by his appointment, and that his good behavior is the consideration of his compensation; so long, therefore, as his good behavior exists, so long his office must continue in consequence of his good behavior; and that his compensation is his property in virtue of his office, and therefore cannot be taken away by any authority whatever, although there may be no service for him to perform. On the other it is contended that the good behavior is not the consideration upon which the compensation accrues, but services rendered for the public good; and that if the office is to be considered as a property, it is a property held in trust for the benefit of the people, and must therefore be held subject to that condition of which Congress is the constitutional judge."
Assuming that the latter view was correct, Giles gave his reasons for holding that the new Judiciary should be abolished; and the subject led him into a history of the circumstances under which the Act passed, at the moment when the House of Representatives ​was in permanent session, "in the highest paroxysm of party rage," disputing over the choice between Jefferson and Burr as President. He charged that members of the legislature who voted for the law "were appointed to offices, not indeed created by the law, the Constitution having wisely guarded against an effect of that sort, but to judicial offices previously created by the removal, or what was called the promotion, of judges from the offices they then held to the offices newly created, and supplying their places by members of the legislature who voted for the creation of the new offices." He showed that the business of the courts "is now very much declined, and probably will decline still more."
    "Under the view of the subject thus presented, he considered the late courts as useless and unnecessary, and the expense therefore was to him highly objectionable. He did not consider it in the nature of a compensation, for there was no equivalent rendition of service. He could not help considering it as a tribute for past services; as a tribute for the zeal displayed by these gentlemen in supporting principles which the people had denounced."
Such arguments, if good for the new circuit courts, were still stronger in their application to the Supreme Court itself. Giles affirmed that the "principles advanced in opposition . . . go to the establishment of a permanent corporation of individuals invested with ultimate censorial and controlling power over all the ​departments of the government, over legislation, execution, and decision, and irresponsible to the people." He believed that these principles were "in direct hostility with the great principle of representative government." Undoubtedly these principles, if they existed anywhere, were strongest, not in the circuit, but in the Supreme Court; and if any judge was to be set aside because his appointment might be considered as a reward for zeal displayed in supporting "principles which the people had denounced," Chief-Justice Marshall, the person most likely to exercise "ultimate censorial and controlling power over all the departments of government," was peculiarly subject to suspicion and removal. To no man had the last President been more indebted, and to no one had he been more grateful.
Only incidentally, at the close of his speech, Giles advanced a final, and in his mind fatal, objection to the new courts, "because of their tendency to produce a gradual demolition of State Courts." Of all arguments this seemed to be the most legitimate, for it depended least on the imputation of evil motives to the Congress which passed the Act. No one need be supposed criminal for wishing, as was often admitted, to bring justice to every man's door; and as little need any one be blamed for wishing to maintain or to elevate the character of his State Judiciary. Parties might honestly and wisely differ, and local interests might widely diverge in a matter so much depending on circumstances; but no ​argument seemed to satisfy Giles unless it carried an implication of criminality against his opponents.
Giles's speech was such as an orator would select to answer, and James Asheton Bayard could fairly claim the right to call himself an orator. Born in Philadelphia, in 1767, Bayard was five years younger than Giles, and had followed the opposite path in politics. Without being an extreme Federalist, he had been since 1796 a distinguished member of the Federalist party in Congress, and had greatly contributed to moderate the extravagances of his friends. In the style of personality which Giles affected, Bayard was easily a master. Virulence against virulence, aristocracy had always the advantage over democracy; for the aristocratic orator united distinct styles of acrimony, and the style of social superiority was the most galling. Giles affected democratic humility to the last, and partly for that reason never became a master even of invective; while John Randolph, finding the attitude of a democrat unsuited for his rhetoric, abandoned it, and seemed to lose his mental balance in the intoxication of his recovered social superiority. Giles's charges, by an opposite illusion, seemed to crawl; his contempt resembled fear; his democratic virtues crouched before the aristocratic insolence they reproved. Bayard appeared to carry with him the sympathy of all that was noble in human character when, taking the floor as Giles sat down, he turned on the Virginian with a dignity of retort which, whatever might be its value as argument, ​cut the deeper because its justice could not be denied.
Jefferson's administration was not yet a year old; the Federalists had twelve long years abounding in mistakes and misfortunes to defend, and Giles's arraignment embraced the whole. Bayard accepted the challenge, and his speech, too historical for compression, varied between long periods of defence and brief intervals of attack. The defence belonged to past history; the attack concerned the actual moment, and need alone be noticed here. He began by refusing belief that Giles ever seriously felt the fear of monarchy he expressed; he was led by other motives:—
    "I pray to God I may be mistaken in the opinions I entertain as to the designs of gentlemen to whom I am opposed. Those designs I believe hostile to the powers of this government. State pride extinguishes a national sentiment. Whatever power is taken from this government is given to the States. The ruins of this government aggrandize the States. There are States which are too proud to be controlled, whose sense of greatness and resource renders them indifferent to our protection, and induces a belief that if no general government existed, their influence would be more extensive and their importance more conspicuous. There are gentlemen who make no secret of an extreme point of depression to which the government is to be sunk. To that point we are rapidly progressing."
The charge was certainly emphatic, and deserved as clear an answer from Giles as Bayard gave to the ​charge of monarchical tendencies. On the constitutional point involved in the Bill before the House, Bayard was equally distinct:—
    "The point on which I rely is that you can do no act which impairs the independence of a judge. When gentlemen assert that the office may be vacated notwithstanding the incumbency of a judge, do they consider that they beg the very point which is in controversy? The office cannot be vacated without violating the express provision of the Constitution in relation to the tenure. . . . The second plain, unequivocal provision on this subject is that the compensation of the judge shall not be diminished during the time he continues in office. This provision is directly levelled at the power of the legislature: they alone could reduce the salary. Could this provision have any other design than to place the judge out of the power of Congress? You cannot reduce a part of the compensation, but you may extinguish the whole. What is the sum of this notable reasoning? You cannot remove the judge from the office, but you may take the office from the judge; you cannot take the compensation from the judge, but you may separate the judge from the compensation. If your Constitution cannot resist reasoning like this, then indeed it is waste paper."
    "The case to which I refer carries me once more to the scene of the Presidential election. I should not have introduced it into this debate, had it not been called up by the honorable member from Virginia. In that scene I had my part; it was a part not barren of incident, and which has left an impression which cannot easily depart from my recollection. I know who were rendered important characters, either from the possession of personal means or from the accident of political situation. And now, Sir, let me ask the honorable member what his reflections and belief will be when he observes that every man on whose vote the event of the election hung has since been distinguished by presidential favor. I fear, Sir, I shall violate the decorum of parliamentary proceeding in the mentioning of names, but I hope the example which has been set me will be admitted as an excuse. Mr. Charles Pinckney of South Carolina was not a member of the House, but he was one of the most active, efficient, and successful promoters of the election of the present chief magistrate. It was well ascertained that the votes of South Carolina were to turn the equal balance of the scales. The zeal and industry of Mr. Pinckney had no bounds; the doubtful politics of South Carolina were decided, and her votes cast in the scale of Mr. Jefferson. Mr. Pinckney has since been appointed Minister Plenipotentiary to the Court of Madrid,—an appointment as high and honorable as any within the gift of the Executive. I will not deny that this preferment is the reward of talents and services, although, Sir, I have never yet heard of the talents or services of Mr. Charles Pinckney. In the House of Representatives I know what was the value of the vote of Mr. Claiborne of Tennessee; the vote of a State was in his hands. ​Mr. Claiborne has since been raised to the high dignity of Governor of the Mississippi Territory. I know how great, and how greatly felt, was the importance of the vote of Mr. Linn of New Jersey. The delegation of the State consists of five members; two of the delegation were decidedly for Mr. Jefferson, two were decidedly for Mr. Burr. Mr. Linn was considered as inclining to one side, but still doubtful; both parties looked up to him for the vote of New Jersey. He gave it to Mr. Jefferson; and Mr. Linn has since had the profitable office of supervisor of his district conferred upon him. Mr. Lyon of Vermont was in this instance an important man; he neutralized the vote of Vermont; his absence alone would have given the vote of a State to Mr. Burr. It was too much to give an office to Mr. Lyon,—his character was low; but Mr. Lyon's son has been handsomely provided for in one of the Executive offices. I shall add to the catalogue but the name of one more gentleman, Mr. Edward Livingston of New York. I knew well—full well I knew—the consequence of this gentleman. His means were not limited to his own vote; nay, I always considered more than the vote of New York within his power. Mr. Livingston had been made the Attorney for the District of New York; the road of preferment has been opened to him, and his brother has been raised to the distinguished place of Minister Plenipotentiary to the French Republic."
Such charges would have caused little feeling at any subsequent period, but the Republican party was the first opposition that gained power in the United States, and hitherto it had believed in its own virtue. Such a state of things could never occur again, for ​only a new country could be inexperienced in politics; but the cynical indifference with which Europe looked on while patriots were bought, was as yet unknown to Jefferson's friends. They were honest; they supposed themselves to have crushed a corrupt system, and to have overthrown in especial the influence of Executive patronage upon Congress. Men like Gallatin, Giles, Randolph, Macon, Nicholson, Stanford, and John Taylor of Caroline listened to Bayard's catalogue of Executive favors as though it were a criminal indictment. They knew that he might have said more, had he been deeper in Executive secrets. Not only had he failed to include all the rewards given to Jefferson's friends, but he omitted the punishments inflicted on those who were believed to be Jefferson's enemies. He did not know that Theodorus Bailey, another of Burr's friends who had voted for Jefferson, was soon to be made postmaster of New York, while Burr himself was not only refused the appointment of Matthew L. Davis, but was to be condemned without a trial.
The acrimony which Giles's tongue thus threw into the debate continued to the end of the session, but had no deeper effect than to make the majority cautious. They were content to show that the Constitution did not expressly forbid the act they meant to perform. In truth the legality of the act depended on the legitimacy of the motive. Of all the root-and-branch Virginians, John Randolph was perhaps the most extreme; and his speech of February 20 laid ​down an honest principle of action. "It is not on account of the paltry expense of the establishment that I want to put it down," he protested; and with still more energy he said, "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."
Their timidity cost the Virginians dear. They knew, and never ceased to complain, that power grew mechanically; and only their want of experience excused them for over-confidence in the strength of their own virtue. They saw that the only part of Federalist centralization still remaining beyond their control was the judiciary; and they knew that if the judiciary were allowed to escape them in their first fervor of Republican virtue, they never could grapple with it after their own hands had learned the use of centralized power and felt the charm of office. Instead of acting, they temporized, threatened without daring to strike, and were made to appear like secret conspirators, planning what they feared to avow.
The repeal of the Judiciary Act passed the House, March 3, by a party vote of fifty-nine to thirty-two; but the Federalists were far from feeling themselves beaten. They had measured the strength of the majority, and felt that the revolutionary impulse was exhausted. As the Federalists grew bolder, the Republicans grew more timid. They passed a supplementary Judiciary Act, to quiet complaint and to prevent the Supreme Court from holding its customary autumn term, lest Marshall should declare the abolition of the circuit courts unconstitutional. The evidences of timidity were not confined to judiciary measures. On no subject had the Republicans expressed stronger convictions than against the navy; yet when Michael Leib of Pennsylvania, in the heat of the judiciary debate, moved for a committee to consider the question ​of abolishing the navy, his motion was allowed to lie on the table until Roger Griswold, an extreme Connecticut Federalist, called it up, March 5, in a spirit of defiance. The House sustained Griswold, and took up the Resolution; whereat Leib withdrew his own motion, and evaded the issue he had challenged. In regard to another Federalist creation which had been the subject of Republican attacks, a similar failure occurred. The mint cost nearly as much as the circuit courts, and accomplished less. Since its foundation it had coined, in gold, silver, and copper, only $3,000,000, at a cost of nearly $300,000; while a gold or silver coin of the United States was still a rare sight. The Republican party when in opposition had opposed the mint as a monarchical institution,—unnecessary, expensive, and symbolic of centralized power. Giles accordingly moved, January 29, that the Act under which it existed should be repealed. In a speech, February 8, he avowed his hostility to the establishment from the beginning; he thought none but self-supporting establishments should exist. "There is a difference," said he, "between this and other countries. Other nations need to coin their own money; it is not with them the general but the partial good; it is aggrandizement of individuals, the trappings of royalty. Here, it is true, you established a mint, you have raised armies and fleets, to create an Executive influence; but what do the people say now? They send men here now to govern, who shall not govern for themselves but for ​the people." This was party doctrine. John Randolph adopted it in principle, asserting that nineteen-twentieths of the silver in circulation was Spanish-milled dollars or their parts, and that sovereignty was no more affected by using foreign coin than by using foreign cordage or cannon. The House accepted these views; Giles brought in his Bill for abolishing the mint; and after a short debate the House passed it, April 26, without a division. On the same day the Senate, quietly, without discussion or a call of yeas and nays, rejected it.
Perhaps the limit of Virginian influence was shown with most emphasis in the fate of a fugitive-slave Bill reported Dec. 18, 1801, by a committee of which Joseph Nicholson was chairman. The Bill imposed a fine of five hundred dollars on any one who should employ a strange negro without advertising in two newspapers a description of the man. Every free negro in the North must under this law carry about him a certificate of his freedom. To this sweeping exercise of a "centralized despotism" the Northern democrats objected, and, with only half-a-dozen exceptions, voted against it, although Bayard and several Southern Federalists joined Giles, Michael Leib, and John Randolph in its support. The Bill was rejected, January 18, by a vote of forty-six to forty-three.
    "The President's party in Congress," wrote Bayard to Hamilton, "is much weaker than you would be led to judges from the printed state of the votes. Here we plainly discern that there is no confidence, nor the smallest attachment prevails among them. The spirit which existed at the beginning of the session is entirely dissipated; a more rapid and radical change could not have been anticipated. An occasion is only wanting for Virginia to find herself abandoned by all her auxiliaries, and she would be abandoned upon the ground of her inimical principles to an efficient federal government."
The general legislation of the year showed no partisan character. A naturalization law was adopted, re-establishing the term of five years' residence as a condition of citizenship,—a measure recommended by the annual Message. A new apportionment Act was passed, fixing the ratio of Congressional representation at one member for 33,000 citizens. During the next ten years, the House was to consist of one hundred and forty-one members. The military peace establishment was fixed at three regiments, one of artillery and two of infantry, comprising in all about three thousand men, under one brigadier-general. By Sections 26 and 27 of the Act, approved March 16, 1802, the President was authorized to establish a corps of engineers, to be stationed at West Point in the State of New York, which should constitute a military academy; and the Secretary of War was ​authorized to procure the necessary apparatus for the institution. Great as the influence of this new establishment was upon the army, its bearing on the general education of the people was still greater, for the government thus assumed the charge of introducing the first systematic study of science in the United States.
Perhaps the most important legislation of the year was an Act approved April 30, which authorized the people of Ohio to form a Constitution and enter the Union; for not only was the admission of Ohio a formidable increase of power to the Northern democracy, but Gallatin inserted into the law a contract, which bound the State and nation to set aside the proceeds of a certain portion of the public lands for the use of schools and for the construction of roads between the new State and the seaboard. This principle, by which education and internal improvements were taken under the protection of Congress, was a violation of States-rights theories, against which, in after years, the strict constructionists protested; but in the first year of their sway Gallatin and the Northern democrats were allowed to manage their own affairs without interference. John Randolph would not vote for the admission of a new State, but Giles and Nicholson gave their votes for the bill, which passed without a murmur.
Gallatin's influence carried another point, more annoying to the Southern Republicans, although less serious. After years of wrangling, Georgia surrendered ​to the United States government all right and title to the territory which was afterward to become the States of Alabama and Mississippi. This immense region, shut from the Gulf of Mexico by the Spaniards, who owned every river-mouth, was inhabited by powerful Indian tribes, of whom the Georgians stood in terror. The Creeks and Cherokees, Choctaws and Chickasaws, owned the land, and were wards of the United States government. No one could say what was the value of Georgia's title, for it depended on her power to dispossess the Indians; but however good the title might be, the State would have been fortunate to make it a free gift to any authority strong enough to deal with the Creeks and Cherokees alone. In the year 1795, ignoring the claims of the national government, the Georgia Legislature sold its rights over twenty million acres of Indian land to four land-companies for the gross sum of five hundred thousand dollars. With one exception, every member of the Legislature appeared to have a pecuniary interest in the transaction; yet no one could say with certainty that the title was worth more than a half a million dollars, or indeed was worth anything to the purchasers, unless backed by the power of the United States government, which was not yet the case. Nevertheless, the people of Georgia, like the people of Massachusetts and Pennsylvania, being at the moment in the fever of land-speculation, partly because they thought the land too cheap, partly because they believed their representatives ​to have been bribed, rose in anger against their Legislature and elected a new one, which declared the sales "null and void," burned the Yazoo Act, as it was called, in the public square of Louisville, and called a State Convention which made the repealing Act a part of the Constitution.
This series of measures completed the imbroglio. No man could say to whom the lands belonged. President Washington interposed on the part of the central government; the Indians quietly kept possession; hundreds of individuals in the Eastern States who had bought land-warrants from the Yazoo companies, claimed their land; while Georgia ignored President Washington, the Indians, the claimants, and the law, insisting that as a sovereign State she had the right to sell her own land, and to repudiate that sale for proper cause. In this case the State maintained that the sale was vitiated by fraud.
Doubtless the argument had force. If a sovereign State had not the power to protect itself from its own agents, it had, in joining the Union, entered into a relation different from anything hitherto supposed. Georgia put the utmost weight on the Rescinding Act as a measure of States-rights, and the true Virginia school made common cause with Georgia. Republicans who believed in the principles of 1798 considered the maintenance of the Rescinding Act a vital issue.
At length Congress took the matter in hand. Madison, Gallatin, and Levi Lincoln were appointed commissioners ​to make a settlement; and Senator James Jackson, the anti-Yazoo leader, supported by his colleague Senator Baldwin and by Governor Milledge, met them on behalf of Georgia,—a formidable array of high officials, whose whole authority was needed to give their decision weight. April 24, 1802, they reached a settlement so liberal to Georgia that Jackson and his associates took the risk of yielding more than they liked to concede. The western boundary was fixed to please the State; an immediate cession of land was obtained from the Indians, and the United States undertook to extinguish at their own expense, as early as they could reasonably do it, the Indian title to all lands within the limits of Georgia; the sum of $1,250,000 was to be paid to the State from the first net proceeds of land-sales; the ceded territory was to be admitted as a State, with slavery, whenever its population should reach sixty thousand; and in consideration for these advantages the Georgians unwillingly agreed that five million acres should be set aside for the purpose of compromising claims. The commissioners did not venture to affirm the legality of the Yazoo sale, but, while expressing the opinion that "the title of the claimants cannot be supported," declared that "the interest of the United States, the tranquillity of those who may hereafter inhabit that territory, and various equitable considerations which may be urged in favor of most of the present claimants, render it expedient to enter into a compromise on reasonable terms." With this concession ​to the principle of States-rights, the Georgians were appeased, and the commissioners hoped that all parties would be satisfied. The brunt of the negotiation fell upon Gallatin; but Madison found no difficulty in giving his support to the compromise.
These two measures greatly affected the Government and increased its power. The admission of Ohio into the Union gave two more senators to the Administration, and the acquisition of the southwestern territory relieved it from an annoying conflict of authority. Jefferson was henceforward better able to carry out his humane policy toward the Indians,—a policy which won him praise from some of his bitterest enemies; while Gallatin turned his energies toward developing the public-land system, in which he had, when in opposition, taken active interest. The machinery of government worked more easily every day.
* ↑ The Virginia Report of 1799-1800, etc. Richmond, 1850, pp. 143-148
* ↑ Giles to Jefferson, June 1, 1801. Hamilton's History, vii. 585 n.
* ↑ Bayard to Hamilton, April 25, 1802; Hamilton's Works, vi. 534.