The national intelligencer and Washington advertiser. (Washington City [D.C.]), 1802-03-31 00:00:00

NATIONAL INTELLIGENCER,
AND WASHINGTON ADVERTISER.
Vol. II
WASHINGTON CITY, PRINTED BY SAMUEL HARRISON SMITH, PENNSYLVANIA AVENUE.
No. CXXVIII.
FIVE DOLLS. PER ANN.
WEDNESDAY, MARCH 31st, 1802.
PAID IN ADVANCE.
National Intelligencer.
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES.
WEDNESDAY, FEBRUARY 24, 1802.
DEBATE.
On the bill received from the Senate, entitled "An Act to repeal certain acts respecting the organisation of the courts of the United States."
Mr. ISRAEL SMITH. Mr. Chairman, I rise for the purpose of offering you my opinion upon the motion now under consideration. I do it with great diffidence, because I am fully apprised of the importance of the question, and am conscious it merits an investigation far beyond any thing I am able to give it—my diffidence is still further increased from the recollection that this subject has already been discussed with the most profound ability, and the most moving eloquence—little now can remain to be said—if however, I should contribute in any small degree to elucidate the subject, I am satisfied from the patience the committee have manifested during this debate, the attempt I am about to make will be acceptable. I take it, Mr. Chairman, the motion is, to strike out the first section of the bill. I presume the honorable mover made it, from a conviction, that the bill was inexpedient, or unconstitutional, or both; whatever reasons he might have, it is incumbent on those who advocate the passage of the bill, to shew that the enacting this bill into a law, is both constitutional and expedient. I shall first attend to the question relating to the constitutionality;—the first point to be established under this head is—"the general power of congress to repeal a law constituting tribunals inferior to the supreme court." In the eighth section of the first article of the constitution, the powers of congress are enumerated; it says, the congress shall have power, to lay and collect taxes—to borrow money—to regulate commerce—to establish a uniform rule of naturalization—to coin money—to establish post offices and post roads—and among many other powers—"to constitute tribunals inferior to the supreme court,"—the congress here spoken of, by way of eminence, unquestionably means, not the senate and house of representatives which may be composed of members first chosen under the constitution, but very succeeding senate and house of representatives composed as aforesaid—as if it had said the congress for the time being shall have power—the words, shall have power , evidently imply that congress may do, or omit to do, or undo, any thing which relates to the subjects here committed to their charge, as found in the creation shall dictate, and the public good require;—if congress will that tribunals inferior to the supreme court shall exist, they express that will in the forms prescribed by law, and they are constituted—if they will them not to exist, the same forms are pursued and their existence ceases—it is to be observed, that the power of congress in relation to their inferior tribunals is spoken of in the same general terms in which all the other subjects to which their powers extend, are mentioned—it is incumbent on gentlemen, who deny the power of congress to pass this bill, to shew us in which part of the constitution this power is taken away—they direct us to the 3d article, 1st section of the constitution, where it says, "the judges both of the supreme and inferior courts, shall hold their offices during good behaviour." Words spoken or written, are to be understood as relating to a subject or subjects immediately under consideration, and not to subjects which at the time are not presented to the mind of the speaker, or writer—it ought here to be noticed that the advocates of the bill contend that these words apply to the executive, and not the legislative authority—to ascertain more clearly the extent of the meaning which the framers of the constitution meant should be affixed to this sentence on which the gentlemen opposed to the bill so much rely, it will be particularly useful to attend to the orderly arrangement of subjects treated on in the constitution; perhaps a more correct and uniform arrangement never took place in any composition—it begins by a division of the powers of government into three departments; the legislative, the executive, and judiciary; these separate departments of the government, are considered separately, un-
der three distinct articles—the first article speaks of the legislative power; it declares that "all legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives," it first speaks of the investment of legislative power, it then tells how the bodies who are to possess this power are to be composed—it then declares how they shall be induced into office, or in other words, of their election, and the tenure of their offices in virtue of such election; the senators shall be elected for six years, the representatives for two years—it then proceeds to point out the qualifications of the electors, and the elected, and some further regulations relative to the government of their own bodies respectively, and lastly speaks of their powers and duties—here the second article is introduced, it begins with declaring that "the executive power shall be vested in a president of the United States of America, he shall hold his office during the term of four years, and together with the vice-president, chosen for the same time,"—it then speaks of his induction into office, or the manner of election, and the qualification of electors, and elected, and lastly points out his powers and duties—now comes the third article, which treats of the judicative powers, it begins as before, by declaring that "the judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time ordain and establish;" here is introduced the clause, or sentence, on which the gentlemen, opposed to the bill on your table, so vehemently insist; it is in these words, "the judges both of the supreme and inferior courts, shall hold their offices during good behaviour." I am here constrained to notice, that the words "appointed by the president" are omitted in this sentence; it will probably be asked, why was it so? it is answered on the page preceding, speaking on the powers of the president, it says, "he shall appoint ambassadors, other public ministers, and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." To have repeated in this sentence the words, which were to authorise the president to appoint judges, would have been more than unnecessary, it would have been tautology; it follows then, that the sentence of which we have been speaking, should be understood thus: "the judges both of the supreme and inferior courts, shall be appointed by the president, and shall hold their offices during good behaviour." The subject which presented itself to the consideration of the framers of the constitution, evidenced by the words themselves, and the analogy which this article bears to both the preceding articles was, first, the power of the president to appoint the judges—2d, the tenure of their offices, in relation to such appointment. This clause in the constitution establishes in the first place, that the president shall appoint the judges, and not the legislature, which otherwise might have been doubtful—2dly, the judges should hold their offices, not at the will of the president, nor for any limited period, at the expiration of which, the president might again exercise his will upon the tenure of their offices; but it should, after the appointment made, be held independent of any exercise of his will thereafter; it should be during their good behaviour; every appointment of the executive for an indefinite period, is an appointment at will; the nature of the power implies it—a power to be exercised at will, without any limitation upon it, must at all times necessarily depend on the exercise of that will. There can be no necessity for a chain of reasoning upon this point—it has been the universal practice of this government, and I believe of every other, when the executive has had the power of appointments, that a person receiving an appointment, where neither the constitution or laws have defined the period for which he is to hold it; it is considered as held at the will of the executive—in the government from which we derive much of our knowledge of jurisprudence, it had long been deemed an evil, that the judges held their offices at the pleasure of the crown; this tenure has finally been changed into a tenure for good behaviour, defeasible however upon the application of both houses of parliament; the framers of our constitution most unquestionably saw good and sufficient reasons for giving the same independence to our judges, and the words which they have introduced into the constitution for this purpose, are strictly applicable to that subject; not a word could be
added or taken away, without injury to their meaning; it should seem then that the judges are independent of executive will, subject however to the ordinary power of the legislature, in constituting, altering and modifying the courts, in such manner, as in their opinion, the public interest may require. If this clause of the constitution, about which so much has been said, was not intended by the framers of the constitution to be understood in subordination to legislative power, and exclusive of it; they should have inserted some words, which would plainly inhibit congress from altering or modifying the courts; they ought to have said, not only, they shall hold their offices, but their offices shall not be abolished during good behaviour; their offices are the work of the legislature, they have their existence in legislative will; the power of the President to appoint, and the tenure of their offices in virtue of that appointment, are all suspended on the existing pleasure of congress, expressed in your law; if that is withdrawn the whole fabric tumbles into ruin. Gentlemen have said much about the co-ordinate powers of the government, and that the executive, and judiciary, are co-ordinate with the legislature; so far as they have a constitutional existence independent of legislative will, they are so, but when their existence, or power, depends on the exercise of that will, they are dependent. This is one of those cases, gentlemen are endeavouring to take from the legislature their power by inference, and implication; they reason thus, 'the judges shall hold their offices during good behaviour.' If you repeal the law, they cannot hold their offices, therefore you cannot repeal the law. Will not this reasoning apply to every law constituting an office held at the will of the President? Your supervisors hold their offices, at the will of the President; if you repeal the law constituting these officers, you determine the President's will, and deprive them of their offices; therefore you cannot repeal the law. 'The President shall be the commander in chief of the army;' if you repeal the law organizing an army, he will not be the commander in chief; therefore you cannot repeal the law organizing the army, and so on of the navy and militia. The only explanation which can be given for this apparent contradiction and absurdity is, it must be understood, in subordination to, and exclusive of legislative power; should doubts still remain about the application of these words in the constitution, it appears to me, the rules for construing statutes, would be sufficient for our purpose. When a statute is passed granting general powers, and there is a proviso introduced limiting those general powers; and a proviso within the proviso, with expressions broad enough to affect many of the general powers in the body of the statute; the rule is, this last proviso shall be confined to the providing clause, and not extend to the body of the statute; now apply this rule to the nature of government and of the constitution. The legislative, is the primary and original power, it comprehends in it all executive and judicative powers. That authority which can make laws, (when no restrictions are expressly imposed) can cause those laws to be executed; for what would be the authority of a law-giver, if he did not possess the means of enforcing obedience? In ancient times, and in many countries at present, where the science of government is very imperfectly understood, the executive are the mere creatures of the law-giver, and wholly dependent on his will; but as advances have been made in the science of government, the propriety of dividing the powers of government, and giving the executive independence to a certain extent, has been confirmed. The executive also, charged with the execution, and application of the laws, to these various objects both civil and criminal, found it expedient, to call to his aid, judges, who might inform the executive, who were objects of animadversion, and remuneration. These judges at first were the mere creatures of executive will, this will was for a long time, severely, and oppressively felt, in the British government; they have now obtained a very high degree of independence of the executive. This view of the progress of government, gives us to understand, that executive authority, is nothing more or less than a reservation, and limitation, from legislative authority; and in the same manner, the judicial authority, is a limitation and reservation, from executive authority; apply these rules for construing statutes, to the constitution, and the three branches of your government. The executive authority, being a reservation of autho-
rity out of the general powers of the legislature, when applied to them, is to be construed strictly, and to take nothing by implication; the judicial power also, growing out of the executive, and reserved from it, every enlargement of right, or power, in behalf of the judiciary, is to be taken as applicable to the executive and not the legislature, excepting when they are expressly pointed out.  Mr. Chairman, the reasons which I have already offered to the committee, have induced me to believe, the constitution, when it says, 'the judges shall hold their offices during good behaviour,' did not intend to deprive the legislature of their ordinary power to constitute tribunals inferior to the supreme court, or abolish, or modify from time to time as in their opinion the public good, and the due administration of judicial justice might require. If however, in the estimation of gentlemen, the construction which I have attempted to give the constitution, is inadmissible, I ask of gentlemen to reflect on the absurdities which grow out of their construction, & the absolute inefficiency of this instrument, to produce the result for which they contend? Gentlemen say, the constitution authorises the judges to decide your laws unconstitutional, and they are to hold their offices independent of the legislature, to give greater efficiency to this salutary check. I beg leave to inform gentlemen, the constitution has established no such principle; it is true your judges have authority derived from the nature of their power as judges, to decide in this way; but the clause which the gentlemen speak of has nothing to do with this question; whether a judge holds his office at the will of the president, or for one year, or during good behaviour, it is equally his duty to decide a law void, which directly infringes the constitution: when there is a constitution of government, this principle is inseparably united with the judicial authority; but prudent judges will exercise this right with great caution, knowing the legislature has an equal right to put constructions; they will also consider, the legislature are obliged to precede them in their constructions; the evils resulting from a difference in opinion cannot escape them; hence it has been said that the judges in deciding the question on the carriage tax, observed, they never would exercise this right, unless the law and the constitution were absolutely irreconcilable; it might as well be said, this was an evil inseparable from judicial authority; as to call it a salutary principle of the constitution—why is it thought that the barriers which the constitution has opposed to the passage of hasty inconsiderate laws are not sufficiently multiplied? Here is a house of representatives composed of about one hundred members, coming from every part, and representing every interest in the United States; on every law which passes this house the different interests and feelings of its members are rallied to guard the passage; the other branch is composed of members differing in number, in years, and the interests they represent, all calculated to impose a restraint on such interests and passions, which from any circumstance, might have found way for a bill through this body; it is finally to be presented to the President, who represents the entire interest of the people of the United States, and is accountable to them by an election every fourth year; if he dissents, it must be re-enacted by two thirds of both Houses. What further checks can be wanting? There is a point of precaution, beyond which it could not be salutary to go. If the framers of the constitution, contemplated your judges as the great safeguards against the encroachments of the legislature in passing unconstitutional laws; I ask, how does it happen, that the constitution does not provide, that every bill previously to its becoming a law, should be laid before the judges of the supreme court for them to decide on its constitutionality; the evils which result from a postponement of this decision until the law has gone into operation, are too obvious to have escaped their notice; a law which concerns the life, the liberty, and property of the citizen, may be many years in operation, before any decision had, and then called up collaterally, perhaps in the case of an individual in which it will have little effect upon its general operation; instead of placing the judges where they might have rejected the cause which some gentlemen seem to think likely to produce unconstitutional laws, they are left to maintain a perpetual, but ineffective combat, against the effects of such laws. This view of the subject convinces me the framers of the constitution never deemed the
check of which the gentlemen speak of any importance.  It has also been said this part of the constitution was intended to guard against the assumption of judicial powers by the legislature.—That part of the constitution which declares, that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as the congress may from time to time ordain and establish," is the constitutional safeguard in this respect. Congress not only can have no pretensions for assuming and exercising judicial powers; but the manner in which they are organized utterly forbid it. Congress sitting as a court of judicature would immediately become contemptible; nor will history, since the separation of the judicial from the other powers of the government, furnish a single instance of an assumption by the legislature; if such tendency could possibly exist, this holding of offices, as gentlemen insist, would furnish the best possible pretext for an encroachment; a violent assumption of all judicial power at once would be thought too daring; the attack must be insidious; your courts are badly constituted; the tenure of their offices stands opposed to a reform; you must wait until death or misbehaviour remove them. This gradual extinction of your courts calls for the substitution of other tribunals in their place. Congress, during the progress of their extinguishment, assumes to itself the exercise of such judicial powers as the courts become incapable of exercising, until a convenient and constitutional opportunity presents of constituting a judicial system, which shall better answer the purposes intended by it. The plea of necessity is powerful; the ambitious and assuming rarely neglect to improve it. An opportunity is also afforded disappointed legislators of securing for themselves and friends a safe retreat; here, by the power of the executive is to be found an ample reward for the loss of popularity.—Mr. Chairman, gentlemen say their construction of the constitution alone will give firmness to the judges in checking the unconstitutional acts of the legislature; can they entertain an opinion of their judges so unfavorable? Will the judges under an apprehension of removal from office by the legislature, under the pretext of a law for the better and more perfect organization of courts, give up all their independence of opinion? Will they forget their oaths? Will they forget every thing which constitutes the excellency of a judge, for the paltry consideration of a salary, which gentlemen say is no more than adequate to their services? Your judges are or ought to be the first in talents and information; they must have experienced, as the gentleman from Delaware observed, the viginti annorum lucubrationes ; they cannot therefore become the mere dependants on public favor; if the government has no further employment for them, their talents will secure for them a private employment equally lucrative; this retreat will neither injure their property or hazard their reputation. I should have thought if the dependence of the judges were to give the alarm, the power of impeachment vested in this house, must have occasioned it. It is in vain we talk of independence of judges, whilst this rod of chastisement hangs over them. Let us suppose a law in which this struggle between the legislature and courts is most likely to be put to the test; in some great national emergency, the legislature pass a law which in their opinion is highly promotive of the public good; the safety of the country, in the opinion of the legislature, depends on its execution; your judges paralyze the operations of government by deciding that law unconstitutional. Here is a collision of opinion destructive in its nature, and for which a remedy must be devised; the legislature have decided it compatible with the constitution; your judges the reverse; here is an impeachable fact; an impeachment is ordered.—Gentlemen will say the safety of the judges is in the purity of their intentions; I answer, I have seen with what facility gentlemen can impeach motives; I have seen it here; I have seen it in solemn trials at the bar; it is this uncharitable spirit which has deluged the world with blood, which, from the Christian era and before, has swept from the earth a great portion of its inhabitants. We cannot easily discern how the same truths presented to different minds, should appear different, especially after we have shown to such minds the connection of truth as it exists in our own. We look for other causes, we ascribe it to that corruption of heart which we know upon so many occasions perverts the understanding. But granting a conviction is not produced, and they escape with impunity, where will they find thereafter, that delicacy of cha-

rather which is so essential, so absolutely necessary to men of their pre-eminence; they are at best either left without a character, or forced & driven from political life with infamy and disgrace. Mr. Chairman, there are other constitutional modes in which obnoxious judges are exposed to be affected by the legislature; it is said, you cannot abolish the office of a judge; yet you are at liberty to vary the duties of the office; it is also said, you must leave enough of the duties to preserve the office. Gentlemen have not clearly pointed out the distinction between an office and the duties belonging to it. That the duties of the office of a judge may be varied or taken away to a certain extent, has been denied by no one. The gentleman from Delaware has attempted to fix the right of the legislature in passing on this subject upon the bona fide intention with which they act; you may legislate about the jurisdiction of courts, both civil and criminal; you may alter the jurisdiction of a court, or transfer the jurisdiction to another court, or give it to a court newly constituted; but this must be done with an upright intention, not to destroy the office. Where there is no other limitation to our power but the purity of intention with which we act, the necessary inference is, that there is no constitutional barrier in the way, provided a majority are of opinion the measure is expedient. The legislature has too frequently varied the jurisdiction and duties of their courts to admit any dispute on that point; they must show us the true line of distinction between the office of a judge and the duties belonging to it, that while we do our duty in relation to one, we need not overstep the bounds of the constitution in relation to the other. The truth is, and I am ready to admit it, the officer, the office, and the duties of the office, are separate distinct things; an office may be thus defined, "A place created by the legislature, for the purpose of having some person placed therein, to discharge such duties as may be assigned to it; the place created is the office; the person placed in it is the officer; and the duties of the office, the services to be performed, be they more or less." Suppose your public debt all discharged, would the loan-offices established in the several states for the purpose of aiding the discharge of that debt, necessarily be abolished? I take it not, the duties of an office are the reasons which induce the legislature to create the office, not the office itself. Congress are the sole judges of the quantum of duties necessary to justify them in creating an office, and when the office is created, it remains, let the amount of service assigned to it be ever so small, until abolished by the power creating it. Should any of your courts render themselves obnoxious to Congress, by deciding their laws unconstitutional, what is to be done? Take from them all their jurisdiction civil and criminal, and transfer it to other courts, who will decide more in unison with your own opinion; by this measure you remove every obstacle which the judges by declaring your laws unconstitutional, might throw in your way; will it be said if the office and salary remain, Congress will never take from the courts their jurisdiction? If it should become an object of magnitude, they certainly would; wherever Congress have the power to act and the doing of that act would in the opinion of Congress be promotive of the public interest, that power is immediately converted into duty, and the obligation resting on them to do the thing is indispensable. How, I ask then, is this construction of the constitution which gentlemen contend for, to end? In some embarrassment of the legislature, but no possible advantage to the public; it terminates in a mere personal advantage of the judges, they hold their offices to preserve their salaries; will this be thought a wise and national provision? The office was created because there were duties to assign to it, and the salary was given for the discharge of those services. Congress have seen cause in a constitutional mode to dispense with those services; I ask then ought not the office to be abolished, & the salary given up, the maximis, all compensations given to public agents of every description are upon the principle of rendition of services and not as sinecures; in this view of the subject will Congress conceive it their duty to appropriate money for the payment of their salaries? Will gentlemen, the friends of those judges, ask it? Will the judges themselves receive it? I cannot say what the feeling of others may be; but for myself, at the stretching forth my hand for such purpose, the suffusions of shame would redden in my face; I should blush from a consciousness of guilt.
Mr. Chairman, I shall say a few words in answer to some observations advanced by the gentleman from Delaware; he said we could not do that indirectly which we could not do directly; meanings, I suppose, since we could not remove the judges from their offices without abolishing them, we could not abolish their offices and thereby do it. This proposition is so far from being true, that the converse of it is nearer true, we cannot make a single appointment to office; but we can create offices by which it becomes
indispensably necessary for others to do it. We cannot directly take from the inhabitants of this city a shilling's worth of property, but indirectly, by the removal of the seat of government, we can take from them one half they possess; we can create and abolish offices, because we have duties assigned to us in relation to them, and we are responsible to the community for the faithful discharge of those duties.—But in relation to appointments we have no duties, we have no responsibility. The gentleman last mentioned, in answer to an observation which had been advanced by some gentlemen opposed to him, that the power to pass a law necessarily implied a power to repeal it, shewed us two instances in which that right did not exist; first where the right to repeal the law was expressly taken away, as in the case of diminishing a judge's salary; this right was never contended for. The second instance was, where the law was in the nature of a contract; no one ever supposed a contract could be repealed. The gentleman was candid enough to inform us at the time, that he did not pretend it applied to the case under consideration. Lastly, he urged very strenuously the British statute, which provides that the King, upon the application of both houses of parliament, should have power to remove the judges; and also the constitutions of two of the states, nearly to the same effect.—From the insertion of this provision in the British statute, and in the constitutions of the two states, respectively, he insisted it was a fair inference, that no such power previously existed; it is true no such power did previously exist, the inserting this proviso in the act of parliament, and the state constitutions before mentioned, enabled the parliament and legislatures of the two states respectively, to operate on the persons of their judges, to remove them from office; an operation wholly unwarrantable without such provision.—Mr. Chairman, I shall take the liberty to say a few words upon the episode of this debate, the eulogy of the late administration.—Gentlemen say the affairs of the government, by them entrusted with its management, have been conducted with the greatest wisdom and purest intentions.—I am not disposed to arraign motives; I am inclined to give full credit on that score.—It has been laid in justification, that the expensive measures into which we have been led by the government, arose not from any causes reprehensible in the government, but from causes imputable to others; from circumstances and events not indeed excusable in those who produced them; but on the side of your government uncontrovertible, irresistible.
All our troubles, external and internal, from the commencement of the government to the present time, are said to be of this description. They ask and appeal for the decision, whence your Indian war? On the part of your government, say they, was displayed wisdom, prudence, moderation & conciliation towards those hostile tribes; there was an allowance for the ignorance, the prejudices and weaknesses of a savage people; a disposition to enlighten, persuade and inspire those barbarian nations with a sincere confidence and belief in the friendship of the United States; but on the opposite side was displayed a spirit implacable, revengeful, bloodthirsty; a disposition to embrace their hands in the blood of your children; a spirit which nothing but the most lively apprehension for their own safety could extinguish.—It is enquired also, from whence arose your western insurrections, did they proceed, say gentlemen, from your government's depreciating this principle, that the understanding as well as the will of the people should bow to the laws? Were not the singular and formidable appearances arising out of a new government sufficiently explained? A second government bring with it a debt of eighty millions of dollars, a heavy impost, and a demand for further contributions in a way of all others the most distasteful to the people? Is there not a manifest distinction to be taken between a heavy insupportable burthen of taxes, when demanded by a foreign government, & when levied by your own? Is an explanation to the people of the justice & propriety of your laws to be expected from your government, or is it sufficient that they cause them to feel submission to them? Your people stand in need of government, and the rulers do right in seeking occasions to exercise it, so long as they discover an indisposition to submit. The constituted authorities of a country should never cease governing until there is manifested on the part of the people, a disposition to acquiesce in laws in which they can discover no traces either of utility or justice; your government stands justified; but on the part of the infurgents was evidenced a spirit hostile to all governmental authority; a spirit opposed to every species of subordination; a Jacobinical spirit, a disposition which originates from an aversion to all authority, government and subordination; a savage diabolical spirit, which latches on its own sinister views and purposes, but pines at the prosperity of others. Gentlemen speak also of the misunderstanding with the French republic, and of the evils and troubles dependent thereon. On the part of your government, say they, was entertained a high sense of gratitude for the great and essential services rendered by
that nation during a long, distressing, bloody, revolutionary war, in which we had lately been engaged; their present circumstances excited compassion; a great, a generous nation struggling for the blessing and sunshine of liberty, opposed by internal dissensions, and resisted by every earthly power; at a time when despair began to brood on the countenance, and they were sinking under the monstrous pressure of external and internal force; assistance and favors were asked of your government by their minister, which he declared was not intended to exceed, on our part, the strict portion of a neutral situation; they were refused, it is true, but in a manner so pleasant and agreeable it ought not to have given offence; their pressing and urgent solicitations were continued until the American government were compelled to refuse the civility of an answer; offended at this necessity and justifiable conduct of your government, their minister withdrew, and what followed? They disclosed by a treaty presently made with a belligerent nation, you had violated your neutrality by authorizing the capture and condemnation of French property on board American vessels, and by permitting American vessels bound to French ports with provisions, to be delivered upon paying a reasonable mercantile profit; they therefore under a sentence to be found in your treaty with them, placing them upon the footing of the most favored nation, authorized the capture of British property found on board American vessels. It is said they are an aspiring ambitious nation, their rulers thirst for domination, there is no medium between resistance and unconditional submission. I have no disposition on the present occasion of entering into a minute investigation of the merits of this controversy, an attempt of that sort would prove ineffectual, all the minutiae of circumstances necessary to form a correct opinion, cannot at this late period of time be brought up; these circumstances and events have all passed in review before the people of the United States; their judgment has been made up, they have rendered judgment, and the judgment is against those gentlemen to whom we stand opposed; they should acquiesce, they should not argue after judgment. Mr. Chairman, in relation to the expediency of this measure, gentlemen should consider we have the most expensive government on earth; it may be denominated imperium in imperio , doubly harassed with legislative, executive, and judicial officers, a government so complicated and expensive, ought to be administered with economy; we should reflect, the bane of all governments has been the extravagancy of their expenses; government is instituted for the protection of property, but when the expense of protection nearly equals the amount protected, it defeats its own end. By the document on your table relating to these courts, it appears that in a period of ten years there has been depending therein, upwards of eight thousand suits, which will fall short of one thousand a year; the yearly salaries of the judges exceed thirty thousand dollars. This expense averaged upon the suits exceeds thirty dollars in each suit, simply for the two salaries of the judges alone, if other expenses of suits are proportioned, the bill of cost must be enormous—compare this expense with the expense of state courts; in the state in which I live the county courts are the courts of entry for civil actions or suits, the compensation of the judges is paid by the suitors, their whole compensation when averaged on the suits, does not exceed a dollar and a third of a dollar to each. The disproportion of expense then by this calculation is more than twenty to one. I am of opinion the number of suits in the circuit courts of the United States will be less for ten years to come, than they have been for ten years past; several causes have existed which served to increase the number of causes for the period which is past. The troubles in Europe, and the embarrassed situation of our commerce for the most of that period, has greatly increased your maritime suits, both civil and criminal; the probability and almost certainty of the relinquishment of all your internal taxes is another cause which will tend to a further decrease; that spirit of speculation which was created and put in operation by funding the public debt, and other measures of the government since it commenced its operation, has been a fruitful source of litigation in these courts; none of the before mentioned causes, it is hoped, will hereafter exist, particularly for a considerable period of time; my reasons however for the expediency of this measure, are not grounded on a calculation of expense. I have no idea that the circuit courts of the United States ought entirely to be done away. My opinion is, the present judges of these courts are supernumerary; you may prefer the circuits of the United States as they now are, viz. six; you may associate one of the judges of the supreme court with the three district judges residing in each of these circuits; let these judges constitute the circuit court in their respective circuits—in trials at law uniformity of decision is said to be the great desideratum; in effecting this end we are to look to the influence your supreme court
will have over the other tribunals; this court, as was beautifully expressed by the gentleman from Delaware, is the conscience which is to actuate all the subordinate courts; but how is this conscience to operate under the present system; there is no personal connection between these courts; the few solitary suits which may be brought up by appeal to the supreme court, will have but little influence, and even these, present themselves in so new and doubtful shape, that very little is to be understood about the justice or legality of the judgment in the court below; upon the plan which I propose, one of the judges of the supreme court will be present in your circuit courts, by means of which, an opportunity will be afforded him of insinuating into every part of a trial, that superior legal knowledge, which he may possess; your district judges will also profit from this connection, it will be a source from which they will derive much legal knowledge and improvement, and it will shew itself in the trial which may be had in their respective districts—no means can be derived to give the judges of your supreme court so correct and so universal influence over judges of subordinate tribunals. I am also persuaded that all the business which belongs to the courts of the United States can conveniently be done by associating the supreme judges and the district judges, in the manner proposed—it to the present judges of your circuit courts are supernumerary and their salaries are as it relates to the public, thrown away. The gentleman from Delaware has indeed suggested, the judge of the supreme court who may have presided in a trial below, when the same is removed into the supreme court, may set himself to intrigue, and condescend to low arts, and management, to gain over the other judges to the support of his opinion; this is too improbable to merit a serious refutation; it is the pride of a judge, particularly in a nation so excited, to hold himself at all times open to conviction, and nothing gives him greater pleasure than to have it in his power to correct an error, which he may discover in a former opinion. For these reasons, Mr. Chairman, I am against striking out the first section of the bill.
HOUSE OF REPRESENTATIVES OF U. S.
THURSDAY, March 18, 1802.
INTERNAL TAXES.
(Debate continued)
Mr. Randolph. I shall give a different reason from any yet assigned, for voting against the motion to strike out carriages. Sensible of the fatigue of the House, I shall be as brief as possible in the expression of my sentiments, as well from a respect to their feelings, as from a regard to my own.
My reason for repealing this tax is not because I think there ought not to be a carriage tax; nor because I do not consider that description of tax as fair and proper; but because I view it as a part of a system of taxation which is unequal and oppressive.
I am glad to hear that the importer receives double the sum collected. I will not deny, though I might, this extraordinary statement. I will only make one use of it, in which I am fairly warranted, and that is, that this imposition, which we have been so often told is paid by the merchants and falls with peculiar weight upon them, so far from being a tax levied on them, and so far from oppressing them, is indeed collected by them, advanced by them, but for which they receive an ample return from the labour of the community. As therefore we are told that the merchants do not receive less than a hundred per cent. on all sums advanced in anticipation of the revenue, it is to be hoped that we shall hear no more clamour about taxing one class of citizens to the exclusion of all the rest. The fact is that the external duties are not an exclusive tax on that class of citizens; for there is no class, but that of the great mass of the people, that can afford to pay the enormous sums levied on imports.
We are told the additional imports upon salt, coffee, brown sugar, &c. were predicated upon war measures. The answer is, let us retain these taxes to pay war loans, for which the war men of this country have made no provision.
If this tax on carriages be taken off, I have no idea that carriages will remain entirely exempt from taxation. The Rates will tax them, which at present they are in many cases unable to do without rendering the tax a prohibition of the sale of the article taxed.
A gentleman has told the House on a former occasion, what is the interest of himself and his friends on the subject of taxation. He said, we have no interest to insist on the continuance of taxes, and asked are we to be reimbursed what we pay? Are we not, on the contrary, to be ejected from all participation in the loaves and fishes? If gentlemen have no interest in these taxes, why persist in their system? I will answer for the gentlemen, what interest they have to continue the system, such as it was when they went out of power. A system of patronage
has with them been a favourite measure; and they have the same interest to continue this part, as the other parts of their system; because, if that party, as it is termed, should again come into power, as soon as an occasion offers, the same system will be brought again into operation.
We are told that the external taxes fall exclusively upon the consuming states. I am glad to hear it. It follows then that the manufacturing states pay the least portion of them. All know it requires no superior intelligence to comprehend it, that every dollar laid on foreign productions operates as a tax on the consumer, and as a bounty upon our own productions. It must then be acknowledged that there is but little difference between the standing of the southern and the other states. And when it is said that they pay a larger proportion of the internal duties than the other parts of the Union, I ask if that is not proper; inasmuch as they pay more than their proportion of the external duties?
When this government was first thought of, what was the contemplation of the nation as to taxes? Was it not conceived that Congress would be confined to an ad valorem duty upon imported articles? Instead of that, the government was vested with ample powers. In addition to the exclusive power over duties on imports, the whole field of excise, direct taxation, &c. was opened to them. But was it not understood that these latter sources were only to be used on extraordinary emergencies?
I will ask if the cultivators of tobacco, cotton, and other valuable productions, do not consume imported articles in a greater proportion, than is consumed in states without staples. You then tax those, who are not only able, but willing to pay. And let me say there is no species of taxation so oppressive, whatever its amount, as that which compels the individual taxed to retrench his personal freedom, that calls upon him to pay a specific sum, and compels him to pay, no matter what his ability is. Thus the contribution of the consumer of imported articles depends upon his ability and disposition to pay, and if he pays more than his proportion, he can censure no one but himself. Observe the difference between the situation of this man, who pays his tax voluntarily, and that of him, who is called upon to pay for his till, or for a stamped instrument of paper, predicated on an existing debt, but from which not a farthing may accrue to either party.
Besides, there is one great distinction between the effects of reducing the external taxes, and abolishing the internal revenues. If you reduce the duties on salt, tea, sugar, &c. you do not abolish a single office. But by taking off the internal duties, you abolish a host of officers. Look, too, at the facility with which the duties on imports are collected. Eleven millions are collected in fifty four towns by a few collectors, furveyors and naval officers. Compare with this view, the large number of officers required to collect the small sum derived from the internal revenues: And yet, the tax upon imports is unequal, because Virginia only imports six million, while South-Carolina imports fourteen millions. I had not supposed, that a gentleman whom I have known from infancy, and for whom I have invariably entertained the greatest respect, would knowingly have attempted to mislead the House. No doubt, the gentleman thought his statement correct. But I will ask what respect ought to be paid to the facts of a gentleman, or to arguments deduced from those facts, who makes the total amount of imports and exports introduced into, or taken out of the respective states, the same with the amount of articles consumed or raised in those states? Do we not know, for instance, that Charleston is the great market, not only for South-Carolina, but also for other adjoining states; that it is the importing and exporting town of an extensive district of the union; and is not the case precisely the same in other parts of the union? I am the more authorized to make this appeal, from the gentleman having told us that our tonnage is about to be reduced; that our merchants are about selling their vessels to foreigners, and that therefore we are about to lose a valuable branch of our revenue. But let us attend to the relative amount of domestic tonnage and foreign tonnage. Let us recollect too that our own tonnage is precisely in the inverse ratio of our revenue; and that in the proportion as we have substituted American in the room of European shipping, has our revenue derived from tonnage diminished.
The gentleman says he wishes to retain these taxes, because the western states pay so small a proportion of the duties on imported articles. But the fact is that the states of Kentucky and Tennessee pay their full proportion. It is true that they do not themselves import, but they consume goods imported into Charleston, Norfolk, Baltimore, &c. which goods find their way to those states.
The gentleman condemns me for now voting for a repeal of the tax on fair, inasmuch as on a former occasion I was against the imposition of it. But I will ask that gentleman,

This day is Published BY RAPINE, CONRAD & Co. Corner of New-Jersey Avenue and South Street, a little south of the Capitol. A DISSERTATION on the freedom of Navigation and Maritime Commerce...
For Sale at Rhodes's Tavern. On the 15th day of April will be sold at Public Auction, by Loving and Forreth, at 12 o'clock the following valuable property...
The Arabian Horse The Dey of Algiers. ARRIVED on the 10th inst, in high health and spirits from Boston, to which place he was imported...
For Sale, Or To Let, on Ground Rent for ever, FIFTY LOTS. Situate between the President's House and Capitol—The titles to which are indisputable. ISAAC POLOCK.
For Sale. THAT elegant House and Lot in Liberty Street, near the Springs in Bath, Berkeley County, Virginia, newly finished by, and for, the residence of the late Thomas Palmer...
NOTICE. In the case of THOMAS WATERMAN, BANKRUPT. WHEREAS a commission of Bankruptcy is awarded against Thomas Waterman...
FOR SALE. I WOULD sell on reasonable terms, three or four hundred acres of Land, in the centre of my estate at Marlinton, on the Virginia side of the river Potomac...
LAND FOR SALE. FOR sale about 4500 acres of land belonging to the estate of Judge Mercer, deceased, and situated in the county of Loudoun...
NOTICE. COMMITTED to the Jail of Washington County, in the District of Columbia, as a Runaway, a Negro Woman named CHARLOTTE...
Looking Glasses. J. COOK. Wishes to inform his friends and the public that he has a large and elegant assortment of Looking Glasses and Prints...
FOR SALE. A NEAT Frame House and Lot, on New-Jersey Avenue, square 690, sixteen by twenty-four...
South-Carolina College. IN pursuance of a resolution of the Board of Trustees of the South-Carolina College, Notice is hereby given, that a premium of THREE HUNDRED DOLLARS is offered...
GENNESSEE. All the Subscriber's Mills, Flouses and improved Farms, in the Counties of Ontario and Steuben, in the state of New York.
IN COUNCIL. Annapolis, January 20, 1802. ORDERED, That the resolution of the last session of the assembly respecting the debtors of the state, be published in the Maryland Gazette...
BY THE HOUSE OF DELEGATES. December 31, 1831. Resolved, That the Governor be and he is hereby authorized, by and with the advice and consent of the council, to direct suits to be commenced against such of the debtors to the state as may think proper...
FOR SALE. A NEGRO WOMAN about 21 years old, who is a good Cook, and a complete house servant in every other respect...
FOR SALE. A VARIETY OF CHOICE Garden Seeds, Just received and for sale, by JOHN GULDING, Broker, Georgetown.
NOTICE. Committed to the jail of Washington County, District of Columbia, the following Slaves, viz. NEGRO Sarah Ann Owens—Committed the 20th February...
THOMAS CARPENTER, TAYLOR. SOLICITS a continuation of that generous encouragement which he has experienced from the Ladies and Gentlemen of this City...
CHARLES VARDEN, Merchant Taylor, from Philadelphia. GRATEFULLY acknowledges the favors conferred on him by the gentlemen of this City...
BOLTING CLOTHS. A GENERAL ASSORTMENT OF BOLTING CLOTHS Of the best qualities and latest importations, are kept for sale by OLIVER EVANS...
Lands for Sale. WE will sell that valuable Farm, lying in Prince George county, containing 400 acres more or less, and one other tract containing 150 acres...
FOR SALE, An excellent Blacksmith, together with his wife and three likely children, to wit, two boys, 10 and 8 years of age, and a girl four. The woman has been employed at various washing and ironing.
For Sale or Rent, Two three story brick houses in Alexandria completely finished, on King and Columbia streets...
Farming Lands for Sale. THE Subscriber would sell about 1000 acres of the tract of Land whereon Dr. John D. Orr at present resides, in the county of Prince William...
For sale, or to be rent d. A House and lot on the Capitol Hill—the lot is 20 feet 2 inches on Delaware Avenue, and about 150 feet deep extending back to a 30 foot alley.
FOR SALE. A TRACT of land containing 2,500 acres lying immediately on the river Potomac, in the county of Northumberland, Virginia...