Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 2 (of 16)

by United States. Congress

Tuesday, March 2.

Mr. Dana.—After this vindication of meritorious men who have been removed from office, I will now attend more particularly to some observations of the gentleman from Virginia. He has spoken of the judicial act of the 13th of February, 1801, as if the passage of it had been attended with improper circumstances, and thence has attempted to deduce the inference that it ought to be repealed. He read part of the journal of the last session, and charged certain members of the House with having been engaged in opposing the public will at the time when the act was approved. The journal shows, that on the 13th of February, eighteen hundred and one, the representatives, voting by States, proceeded to the twenty-ninth ballot for President, and the result was the same as had taken place before; the votes of eight States given for Thomas Jefferson; the votes of six States for Aaron Burr; and the votes of two States divided. Much has been said on this topic, which has at length been brought forward as a public charge by the gentleman from Virginia. It is now time that it should be examined.

According to the principles of our Government, the public will, when explicitly ascertained by an authentic act, is the law of the land, and must be obeyed. Of this there can be no doubt; it is beyond all question. But this public will is not merely the will of part of the community, a section of the people; it is the will of the great body of American citizens. The highest and most solemn expression of the public will in this country is the Constitution of the United States. This was agreed to by the General Convention; was transmitted to the Legislatures of the several States by the unanimous resolution of Congress under the Confederation; was recommended by all those Legislatures, when they passed laws for submitting it to conventions for their ratification, and was finally ratified by the conventions of all the States in the Union. It was thus established by the general consent. In this we should acknowledge the high authority of the public will.

There is, however, a misfortune which attends the argumentation of some gentlemen. They substitute a part for the whole; and would confound the will of a certain portion of the people, however vaguely expressed, with the will of the whole public body as explicitly manifested by an authentic act.

What manifestation was there of the public will relative to the late election of a President of the United States? The only authentic evidence of the public will on this subject proved, that Thomas Jefferson, of Virginia, and Aaron Burr, of New York, were equally the objects of approbation. The majority of the electors had given them an equal number of votes. What then was the difference of right between them? Was it, that one of the candidates was a Virginian? Was it that the members of Congress were assembled on the banks of the Potomac, with Virginia in view on the other side? Must it be acknowledged as the prerogative of that State to impose a Chief Magistrate on the Union? Or was there a difference of right, because Virginia, with its extent and population, could make more clamor than any other State? The noise of so great a State may sometimes seem loud enough for the voice of the people of the United States. And are they, therefore, in this House to be confounded with each other? If so, the observations about the public will, of which we have lately heard so much from a certain quarter, must be understood to mean the will of Virginia; and we may thus judge of the argumentation when gentlemen from that State are speaking of the respect due to the public will.

Two persons were presented, in constitutional form, to the House of Representatives, as being equally candidates for the office of President: one from Virginia and the other from New York. When they were so presented, the choice between the two candidates was devolved on the Representatives, by the Constitution of the United States. After maturely considering the question, it was for them, as ultimate electors, to vote as they judged to be most for the public welfare. They voted by States, as required by the constitution. And are gentlemen to be here accused for exercising the constitutional right of election according to the conviction of their own judgments? When called upon, under the constitution, to elect one of the two candidates, were they not bound, by the nature of their duty, to give their votes according as the one or the other was by them judged to be more or less preferable? Upon what principle can gentlemen be accused of hostility to the interest of the people, because they did not think proper to elect the candidate from Virginia? Are our affairs already reduced to such a situation that it is to be charged as a public offence, if any member of this House has failed to vote for a Virginian to be the President of the United States?

It was the constitutional right of members of this House, in deciding between the two candidates, to give their ballots for the one whom they believed to be superior in practical capacity for administering the Government—one whom they believed to be not hostile to the commercial interests of the country, and not disposed to subject the Union to the domination of a particular State, whatever might be its lordly pretensions in consequence of extent of territory or antiquity of dominion.

As the gentleman from Virginia has thought proper to speak of events which took place about the time of passing the act in question, allow me, sir, to mention one circumstance, of which he has said nothing. The act, as finally enrolled, was signed by the Speaker of the House of Representatives after the balloting for a President had commenced; and the Clerk carried it to the other House for the signature of their President. The candidate from Virginia was then in the chair of the Senate. The Clerk of this House, on first presenting himself, as was customary, at the door of the Senate Chamber, was not admitted. The situation came to the knowledge of a Senator, and was communicated to the Senate. After the sense of that body was found to be for his admission, the door was opened, and the Clerk was admitted to deliver his message, and present the enrolled bill for signature. It was then signed by the President of the Senate.

What should be thought of this, as taken in connection with the fate of the act and pendency of the Presidential election? Was it a circumstance which must ever be remembered with mortification, and which therefore will never be forgiven?

To give a further color to the suggestion that the passage of the act was attended with improper circumstances, the attempt has been made to impress an idea that it was adopted without mature deliberation, and hurried through its different stages in a reprehensible manner. If we are not willing to be misled by pretext, let us examine what was the fact.

A recurrence to the journals of the House will prove that the subject of the Judicial Establishment was recommended by the President of the United States to the attention of Congress at two successive sessions. In his communication at the opening of the first session of the sixth Congress, he recommended the subject in the following terms:

"To give due effect to the civil administration of Government, and to ensure a just execution of the laws, a revision and amendment of the Judiciary system is indispensably necessary. In this extensive country it cannot but happen that numerous questions respecting the interpretation of the laws and the rights and duties of officers and citizens must arise. On the one hand, the laws should be executed; on the other, individuals should be guarded from oppression. Neither of these objects is sufficiently assured under the present organization of the Judicial Department. I therefore earnestly recommend the subject to your serious consideration."

In the House of Representatives, this part of the President's Speech was referred to a select committee. They reported a bill which contained a variety of provisions for amending the system. The bill was referred to a Committee of the Whole, in which it was discussed several days, and was afterwards recommitted to the same gentlemen who had reported it. As it was printed for the use of the members, and the subject was extensively interesting to the community, it was judged proper to defer a final decision until another session, and in the mean time gentlemen might have an opportunity to acquire information that would assist them to form a more satisfactory judgment.

At the second session of the sixth Congress, the subject was again recommended by the President. These are his words:

"It is, in every point of view, of such primary importance to carry the laws into prompt and faithful execution, and to render that part of the administration of justice which the constitution and laws devolve on the Federal courts, as convenient to the people as may consist with their present circumstances, that I cannot omit once more to recommend to your serious consideration the Judiciary system of the United States. No subject is more interesting than this to the public happiness; and to none can those improvements which may have been suggested by experience be more beneficially applied."

On this recommendation a select committee was appointed. That committee reported a bill to provide for the more convenient organization of the courts of the United States. The bill underwent a long discussion and a variety of amendments. It was finally passed in the House of Representatives by a majority of 51 to 43; and in the Senate by a majority of 16 to 11. After knowing these facts, will gentlemen have the hardihood to call this a hasty measure?

Compare the whole proceedings with what took place respecting a former act. Gentlemen have spoken of the general power of Congress to repeal acts passed by their predecessors. Are they prepared to repeal the act to which I now refer? It is the act relative to the temporary and permanent seat of Government, passed in July, 1790. That act was carried in the Senate by a majority of 14 to 12. In the House of Representatives, a Committee of the Whole agreed to it as it came from the Senate. Twelve different amendments were proposed in the House; the yeas and nays were taken on each of them, and every amendment was rejected—all in one day. A motion was then made for the third reading of the bill on the Monday following; the motion was negatived. It was moved that the third reading should be on the next day; this was negatived. The yeas and nays were taken twelve times during the sitting. A motion was made to adjourn; this was negatived. The general rule of the House being against reading a bill twice on the same day without special order, a motion for then reading the bill the third time was made on the part of its advocates, and carried. On taking the yeas and nays, for the thirteenth time in one day, the bill passed by a majority of 32 to 29. Mark the smallness of the majority in both Houses; the utter rejection of every amendment in the House of Representatives; the hurried manner in which it was forced on to the final question. Recollect other considerations relative to the passage of that act, and then judge whether it was not attended with circumstances signally improper. If matters of this kind constitute a sufficient cause for gentlemen to repeal any act passed by their predecessors, why should we remain here in pursuance of this act? Will any gentleman say it is for our personal convenience that the seat of Government is now at this place? Is it at present for the public convenience? Is it less expensive for individuals, or for the public, than it would be in some of your commercial cities? Have you here the opportunities for valuable information which might be had elsewhere? What, then, should detain us, if it be not a regard to stability and consistency in public proceedings, combined with a regard to the expectations of respectable persons seriously interested in the question? But if you may repeal the act organizing the Judicial system, what principle is there that ought to confine the Government to the place in which we are now assembled? Repeal this act, as is proposed by the bill on your table, and you shake the principle of public stability and consistency. Repeal this act, and there can be no principle of constitutional obligation, none of political honor, or legal right, to detain you here.