Mr. Cocke, of Tennessee, followed Mr. Olcott. He said he was sorry gentlemen attempted to make quack doctors of them, by saying we may give a wound, but cannot heal it. He wished the Senate to inquire whether the law now proposed to be repealed was constitutional or not. If it was not, we should act like honest men, acknowledge that we have violated the constitution, and restore it to its purity by repealing the law. Let us recur to the journals of 1799, and see what was the understanding of these champions of our liberties, and whether they have not since changed. The journals would prove that the judges were to mix with the Legislature, were to be locked up in a closet, and to declare who was to be our Executive Magistrate.
[Mr. Cocke here went into an examination of the arguments on the constitutional point.]
We have been told that the nation is to look up to these immaculate judges to protect their liberties; to protect the people against themselves. This was novel, and what result did it lead to? He shuddered to think of it. Were there none of these judges ready to plunge their swords in the American heart? He did not think it proper to be alarmed by the terrors held out. He wished to know no man; to take things as they are. But if gentlemen will attack, they must expect a reply.
Mr. Cocke then dilated upon the several points of the discussion, and concluded with the expression of the hope that the Legislature would repeal the law, and that they would not give way to the ideas of gentlemen, that the Government was made for a chosen few, for the judges, to whom we are to look up for every thing.
Mr. Morris.—Mr. President, I had fostered the hope that some gentleman, who thinks with me, would have taken upon himself the task of replying to the observations made yesterday and this morning, in favor of the motion on your table. But since no gentleman has gone so fully into the subject, as it seems to require, I am compelled to request your attention.
After these preliminary remarks, I hope I shall be indulged while I consider the subject in reference to the two points which have been taken, the expediency and the constitutionality of the repeal.
In considering the expediency, I hope I shall be pardoned for asking your attention to some parts of the constitution, which have not yet been dwelt upon, and which tend to elucidate this part of our inquiry. I agree fully with the gentleman, that every section, every sentence, and every word of the constitution, ought to be deliberately weighed and examined; nay, I am content to go along with him, and give its due value and importance to every stop and comma. In the beginning, we find a declaration of the motives which induced the American people to bind themselves by this compact. And in the fore-ground of that declaration, we find these objects specified, "to form a more perfect union, to establish justice, and to ensure domestic tranquillity." But how are these objects effected? The people intended to establish justice. What provision have they made to fulfil that intention? After pointing out the courts which should be established, the second section of the third article informs us:
"The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects.
"In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."
Thus then we find that the judicial power shall extend to a great variety of cases, but that the Supreme Court shall have only appellate jurisdiction in all admiralty and maritime causes, in all controversies between the United States and private citizens, between citizens of different States, between citizens of the same State claiming lands under different States, and between a citizen of the United States and foreign states, citizens, or subjects. The honorable gentleman from Kentucky, who made the motion on your table, has told us that the constitution, in its judiciary provisions, contemplated only those cases which could not be tried in the State courts. But he will, I hope, pardon me when I contend that the constitution did not merely contemplate, but did, by express words, reserve to the national tribunals a right to decide, and did secure to the citizens of America, a right to demand their decision, in many cases evidently cognizable in the State courts. And what are these cases? They are those in respect to which it is by the constitution presumed that the State courts would not always make a cool and calm investigation, a fair and just decision. To form, therefore, a more perfect union, and to ensure domestic tranquillity, the constitution has said there shall be courts of the Union to try causes, by the wrongful decision of which the Union might be endangered or domestic tranquillity be disturbed. And what courts? Look again at the cases designated. The Supreme Court has no original jurisdiction. The constitution has said that the judicial powers shall be vested in the supreme and inferior courts. It has declared that the judicial power so vested shall extend to the cases mentioned, and that the Supreme Court shall not have original jurisdiction in those cases. Evidently, therefore, it has declared that they shall (in the first instance) be tried by inferior courts, with appeal to the Supreme Court. This, therefore, amounts to a declaration, that the inferior courts shall exist. Since, without them, the citizen is deprived of those rights for which he stipulated, or rather those rights verbally granted, would be actually withheld; and that great security of our Union, that necessary guard of our tranquillity, be completely paralyzed, if not destroyed. In declaring, then, that these tribunals shall exist, it equally declares that the Congress shall ordain and establish them. I say they shall; this is the evident intention, if not the express words, of the constitution. The convention in framing, the American people in adopting, that compact, did not, could not presume, that the Congress would omit to do what they were thus bound to do. They could not presume, that the Legislature would hesitate one moment, in establishing the organs necessary to carry into effect those wholesome, those important provisions.