this country will never consent to give up their navigation, and every administration will find themselves constrained to provide means to protect their commerce. He did not undertake to state, that it was a | ships, or sailors, or merchants? The people of wanton war, or provoked by the government. He did not even venture to deny, that it was a war of defence, and entered into in order to protect our brethren on the frontiers from the bloody scalping-knife and murderous tomahawk of the savage. What ought the government to have done? Ought they to have estimated the value of the blood, which probably would be shed, and the amount of the devastation likely to be committed, before they determined on resistance? They raised an army, and after great expense and various fortune, they have secured the peace and safety of the frontiers. But why was the army mentioned on this occasion, unless to forewarn us of the fate which awaits them, and to tell us, that their days are numbered? I cannot suppose that the gentleman mentioned this little army, distributed on a line of three thousand miles, for the purpose of giving alarm to three hundred thousand free and brave yeomanry, ever ready to defend the liberties of the country. The honorable gentleman proceeded to inform the committee, that the government, availing itself of the depredations of the Algerines, created a navy. Did the gentleman mean to insinuate, that this war was invited by the United States? Has he any documents or proof to render the suspicion colorable? No, sir, he has none. He well knows, that the Algerine aggressions were extremely embarrassing to the government. When they commenced, we had no marine force to oppose to them. We had no harbors or places of shelter in the Mediterranean. A war with these pirates could be attended with neither honor nor profit. It might cost a great deal of blood, and in the end it might be feared, that a contest so far from home, subject to numberless hazards and difficulties, could not be maintained. What would gentlemen have had the government to do? I know there are those who are ready to answer-abandon the Mediterranean trade. But would this have done? The corsairs threatened to pass the Straits, and were expected in the Atlantic. Nay, sir, it was thought that our very coasts would not have been secure? Will gentlemen go farther and say, that the United States ought to relinquish their commerce? I believe this opinion has high authority to support it. It has been said, that we ought to be only cultivators of the earth, and make the nations of Europe our carriers. This is not an occasion to examine the solidity of this opinion; but I will only ask, admitting the administration were disposed to turn the pursuits of the people of this country | from the ocean to the land, whether there is a power in the government, or whether there would be, if we were as strong as the government of Turkey, or even of France, to accomplish the object? With a sea-coast of seventeen hundred miles, with innumerable harbors and inlets, with a people enterprising beyond example, is it possible to say, you will have no In respect to the Algerines, the late administrations were singularly unfortunate. They were obliged to fight or pay them. The true policy was to hold a purse in one hand and a sword in the other. This was the policy of the government. Every commercial nation in Europe was tributary to these petty barbarians. It was not esteemed disgraceful. It was an affair of calculation, and the administration made the best bargain in their power. They have heretofore been scandalized for paying tribute to a pirate, and now they are criminated for preparing a few frigates to protect our citizens from slavery and chains. Sir, I believe on this and many her occasions, if the finger of heaven had pointed out a course, and the government had pursued it, yet that they would not have escaped the censure and reproaches of their enemies. We were told, that the disturbances in Europe were made a pretext for augmenting the army and navy. I will not, Mr. Chairman, at present go into a detailed view of the events which compelled the government to put on the armor of defence, and to resist by force the French aggressions. All the world know the efforts which were made to accomplish an amicable adjustment of differences with that power. It is enough to state, that ambassadors of peace were twice repelled from the shores of France with ignominy and contempt. It is enough to say, that it was not till after we had drunk the cup of humiliation to the dregs, that the national spirit was roused to a manly resolution to depend only on their God and their own courage for protection. What, sir, did it grieve the gentleman, that we did not crouch under the rod of the Mighty Nation, and like the petty powers of Europe, tamely surrender our independence? Would he have had the people of the United States relinquish without a struggle those liberties which had cost so much blood and treasure? We had not, sir, recourse to arms, till the mouths of our rivers were choked with French corsairs; till our shores, and every harbor, were insulted and violated; till our commercial capital had been seized, and no safety existed for the remainder but the protection of force. At this moment, a noble enthusiasm electrized the country: the national pulse beat high, and we were prepared to submit to every sacrifice, determined only, that our independence should be the last. At that time, an American was a proud name in Europe; but I fear, much I fear, that in the course we are now likely to pursue, the time will soon arrive, when our citizens abroad will be ashamed to acknowledge their country. The measures of '98 grew out of the public feelings. They were loudly demanded by the public voice. It was the people who drove the government to arms, and not as the gentleman expressed it, the government which pushed the people to the X. Y. Z. of their political designs before they understood the A. B. C. of their political principles. we had heard the thundering voice of the people which dismissed us from their service, we erected a judiciary, which we expected would afford us the shelter of an inviolable sanctuary. The gentleman is deceived. We knew better, sir, But what, sir, did the gentleman mean by the characters who were to succeed us, and we his X. Y. Z.? I must look for something very knew that nothing was sacred in the eyes of significant, something more than a quaintness infidels. No, sir, I never had a thought that of expression, or a play upon words, in what any thing belonging to the federal government, falls from a gentleman of his learning and abil- was holy in the eyes of those gentlemen. Í ity. Did he mean that the despatches which could never, therefore, imagine that a sanctuary contained those letters were impostures, design- could be built up which would not be violated. ed to deceive and mislead the people of Amer-I believe these gentlemen regard public opinion ica? Intended to rouse a false spirit not justi- because their power depends upon it, but I befied by events? Though the gentleman had no lieve they respect no existing establishment of respect for some of the characters of that em- the government, and if public opinion could be bassy; though he felt no respect for the chief brought to support them, I have no doubt they justice, or the gentleman appointed from South would annihilate the whole. I shall at present Carolina, two characters as pure, as honorable, only say further on this head, that we thought and exalted, as any the country can boast of, the reorganization of the judicial system an yet, I should have expected that he would have useful measure, and we considered it as a duty felt some tenderness for Mr. Gerry, in whom to employ the remnant of our power to the his party had since given proofs of undiminish-best advantage of the country. ed confidence. Does the gentleman believe that Mr. Gerry would have joined in the deception, and assisted in fabricating a tale which was to blind his countrymen, and to enable the government to destroy their liberties? Sir, I will not avail myself of the equivocations or confessions of Talleyrand himself; I say these gentlemen will not dare publicly to deny what is attested by the hand and seal of Mr. Gerry. The truth of these despatches admitted, what was your government to do? Give us, say the Directory, one million two hundred thousand livres for our own purse, and purchase fifteen millions of dollars of Dutch debt, which was worth nothing, and we will receive your min-ings which it enjoys. isters and negotiate for peace. The honorable gentleman expressed his joy that the constitution had at last become sacred in our eyes; that we formerly held that it meant every thing or nothing. I believe, sir, that the constitution formerly appeared different in our eyes from what it now appears in the eyes of the dominant party. We formerly saw in it the principles of a fair and goodly creation. We looked upon it as a source of peace, of safety, of honor, and of prosperity to the country. But now the view is changed; it is the instrument of wild and dark destruction. It is a weapon which is to prostrate every establishment, to which the nation owes the unexampled bless The present state of the country is an unanIt was only left to the government to choose swerable commentary upon our construction between an unconditional surrender of the hon- of the constitution. It is true that we made it or and independence of the country, or a manly mean much, and I hope, sir, we shall not be resistance. Can you blame, sir, the adminis-taught by the present administration that it can tration for a line of conduct, which has reflected on the nation so much honor, and to which, under God, it owes its present prosperity. These are the events of the general government, which the gentleman has reviewed in succession, and endeavored to render odious or suspicious. For all this, I could have forgiven him, but there is one thing for which I will not, I cannot forgive him. I mean his attempt to disturb the ashes of the dead; to disturb the ashes of the great and good Washington. Sir, I might degrade by attempting to eulogize this illustrious character. The work is infinitely beyond my powers. I will only say that as long as exalted talents and virtues confer honor among men, the name of Washington will be held in veneration. After, Mr. Chairman, the honorable member had exhausted one quiver of arrows against the late executive, he opened another, equally poisoned, against the judiciary. He has told as, sir, that when the power of the government vas rapidly passing from federal hands, after mean even worse than nothing. The gentleman has not confined his animadversions to the individual establishment, but has gone so far as to make the judges the subject of personal invective. They have been charged with having transgressed the bounds of judicial duty, and become the apostles of a political sect. We have heard of their travelling about the country for little other purpose than to preach the federal doctrines to the people. Sir, I think a judge should never be a partisan. No man would be more ready to condemn a judge who carried his political prejudices or antipathies on the bench. But I have still to learn that such a charge can be sustained against the judges of the United States. The constitution is the supreme law of the land, and they have taken pains, in their charges to grand juries, to unfold and explain its principles. Upon similar occasions, they have enumerated the laws which compose our criminal code, and when some of those laws have been denounced by the enemies of the administration as uncon stitutional, the judges may have felt themselves | this abuse of power, I view them as the proper called upon to express their judgments upon But if, sir, they have offended against the constitution or laws of the country, why are they not impeached? The gentleman now holds the sword of justice; the judges are not a privileged order, they have no shelter but their innocence. But in any view are the sins of the former judges to be fastened upon the new judicial system? Would you annihilate a system, because some men under part of it had acted wrong? The constitution has pointed out a mode of punishing and removing the men, and does not leave this miserable pretext for the wanton exercise of powers which is now contemplated. The honorable member has thought himself justified in making a charge of a serious and frightful nature against the judges. They have been represented going about searching out victims of the sedition law. But no fact has been stated; no proof has been adduced, and the gentleman must excuse me for refusing my belief to the charge till it is sustained by stronger and better ground than assertion. If, however, Mr. Chairman, the eyes of the gentleman are delighted with victims, if objects of misery are grateful to his feelings, let me turn his view from the walks of the judges to the track of the present executive. It is in this path we see the real victims of stern, uncharitable, unrelenting power. It is here, sir, we see the soldier who fought the battles of the Revolution; who spilt his blood and wasted his strength to establish the independence of his country, deprived of the reward of his services, and left to pine in penury and wretchedness. It is along this path that you may see helpless children crying for bread, and gray hairs sinking in sorrow to the grave! It is here that no innocence, no merit, no truth, no services, can save the unhappy sectary who does not believe in the creed of those in power. I have been forced upon this subject, and before I leave it, allow me to remark, that without inquiring into the right of the President to make vacancies in office, during the recess of the Senate, but admitting the power to exist, yet that it never was given by the constitution to enable the chief magistrate to punish the insults, to revenge the wrongs, or to indulge the antipathies of the man. If the discretion exists, I have no hesitation in saying that it is abused when exercised from any other motives than the public good. And when I see the will of a President precipitating from office, men of probity, knowledge, and talents, against whom the community has no complaint, I consider it as a wanton and dangerous abuse of power. And when I see men who have been the victims of objects of national sympathy and commiseration. Among the causes of impeachment against the judges, is their attempt to force the sovereignties of the States to bow before them. We have heard them called an ambitious body politic; and the fact I allude to has been considered as full proof of the inordinate ambition of the body. Allow me to say, sir, the gentleman knows too much, not to know that the judges are not a body politic. He supposed, perhaps, there was an odium attached to the appellation, which it might serve his purposes to connect with the judges. But, sir, how do you derive any evidence of the ambition of the judges, from their decision, that the States under our federal compact were compellable to do justice? Can it be shown, or even said, that the judgment of the court was a false construction of the constitution? The policy of later times, on this point, has altered the constitution, and in my opinion, has obliterated its fairest feature. I am taught by my principles, that no power ought to be superior to justice. It is not, that I wish to see the States humbled in dust and ashes; it is not, that I wish to see the pride of any man flattered by their degradation; but it is, that I wish to see the great and the small, the sovereign and the subject, bow at the altar of justice, and submit to those obligations from which the Deity himself is not exempt. What was the effect of this provision in the constitution? It prevented the States being the judges in their own cause, and deprived them of the power of denying justice. Is there a principle of ethics more clear, than that a man ought not to be a judge in his own cause? and is not the principle equally strong, when applied not to one man, but to a collective body? It was the happiness of our situation which enabled us to force the greatest State to submit to the yoke of justice, and it would have been the glory of the country in the remotest times, if the principle in the constitution had been maintained. What had the States to dread? Could they fear injustice, when opposed to a feeble individual? Has a great man reason to fear from a poor one? And could a potent State be alarmed by the unfounded claim of a single person? For my part, I have always thought, that an independent tribunal ought to be provided, to judge on the claims against this government. The power ought not to be in our own hands. We are not impartial, and are therefore liable, without our knowledge, to do wrong. I never could see why the whole community should not be bound by as strong an obligation to do justice to an individual, as one man is bound to do it to another. In England, the subject has a better chance for justice against the sovereign, than in this country a citizen has against a State. The Crown is never its own arbiter, and they who sit in judgment, have no interest in the event of their decision The judges, sir, have been criminated for their children. Let me say, that this same their conduct in relation to the sedition act, common law, now so much despised and viliand have been charged with searching for vic-fied, is the cradle of the rights and liberties tims who were sacrificed under it. The charge which we now enjoy. It is to the common is easily made, but has the gentleman the means law we owe our distinction from the colonists of supporting it? It was the evident design of of France, of Portugal, and of Spain. How the gentleman to attach the odium of the sedi- long is it since we have discovered the maligtion law to the judiciary; on this score the nant qualities which are now ascribed to this judges are surely innocent. They did not pass law? Is there a State in the Union, which has the act; the legislature made the law, and they not adopted it, and in which it is not in force? were obliged, by their oaths, to execute it. The Why is it refused to the federal constitution? judges decided the law to be constitutional, and Upon the same principle, that every power is I am not now going to agitate the question. I denied which tends to invigorate the governdid hope, when the law passed, that its effect ment. Without this law the constitution bewould be useful. It did not touch the freedom comes, what perhaps many gentlemen wish to of speech, and was designed only to restrain see it, a dead letter. the enormous abuses of the press. It went no further than to punish malicious falsehoods, published with the wicked intention of destroying the government. No innocent man ever did, or could have suffered under the law. No punishment could be inflicted, till a jury was satisfied, that a publication was false, and that the party charged, knowing it to be false, had published it with an evil design. The misconduct of the judges, however, on this subject, has been considered by the gentleman the more aggravated, by an attempt to extend the principles of the sedition act, by an adoption of those of the common law. Connected with this subject, such an attempt was never made by the judges. They have held, generally, that the Constitution of the United States was predicated upon an existing common law. Of the soundness of that opinion, I never had a doubt. I should scarcely go too far, were I to say, that, stripped of the common law, there would be neither constitution nor government. The constitution is unintelligible without reference to the common law. And were we to go into our courts of justice, with the mere statutes of the United States, not a step could be taken, not even a contempt could be punished. Those statutes prescribe no forms of pleadings; they contain no principles of evidence; they furnish no rule of property. If the common law does not exist in most cases, there is no law but the will of the judge. For ten years it has been the doctrine of our courts, that the common law was in force, and yet can gentlemen say, that there has been a victim who has suffered under it? Many have experienced its protection, none can complain of its oppression. In order to demonstrate the aspiring ambition of this body politic, the judiciary, the honorable gentleman stated, with much emphasis and feeling, that the judges had been hardy enough to send their mandate into the executive cabinet. Was the gentleman, sir, acquainted with the fact, when he made this statement? It differs essentially from what I know I have heard upon the subject. I shall be allowed to state the fact. Several commissions had been made out by the late administration, for justices of the peace of this territory. The commissions were complete; they were signed and sealed, and left with the clerks of the office of State, to be handed to the persons appointed. The new administration found them on the clerk's table, and thought proper to withhold them. These officers are not dependent on the will of the President. The persons named in the commissions considered that their appointments were complete, and that the detention of their commissions was a wrong, and not justified by the legitimate authority of the executive. They applied to the Supreme Court for a rule upon the Secretary of State, to show cause why a I have never contended, that the whole of mandamus should not issue, commanding him the common law attached to the constitution, to deliver up the commissions. Let me ask, sir, but only such parts as were consonant to the what could the judges do? The rule to show nature and spirit of our government. We have cause was a matter of course upon a new point, nothing to do with the law of the ecclesiastical at the least doubtful. To have denied it would establishment, nor with any principle of mo- have been to shut the doors of justice against narchical tendency. What belongs to us, and the parties. It concludes nothing, neither the what is unsuitable, is a question for the sound jurisdiction nor the regularity of the act. The discretion of the judges. The principle is ana- judges did their duty; they gave an honorable logous to one which is found in the writings of proof of their independence. They listened to all jurists and commentators. When a colony the complaint of an individual against your is planted, it is established subject to such parts President, and have shown themselves disposed of the law of the mother country as are appli- to grant redress against the greatest man in the cable to its situation. When our forefathers government. If a wrong has been committed, colonized the wilderness of America, they and the constitution authorizes their interfebrought with them the common law of Eng-rence, will gentlemen say that the Secretary of land. They claimed it as their birthright, and State or even the President, is not subject to they left it as the most valuable inheritance to law? And if they violate the law, where can we apply for redress but to our courts of justice? But, sir, it is not true that the judges issued their mandate to the executive; they have only called upon the Secretary of State to show them that what he has done is right. It is but an incipient proceeding, which decides nothing. Mr. Giles rose to explain. He said, that the gentleman from Delaware had ascribed to him many things which he did not say, and had afterwards undertaken to refute them. He had only said, that mandatory process had issued: that the course, pursued by the court, indicated a belief by them, that they had jurisdiction, and that in the event of no cause being shown, a mandamus would issue. Mr. Bayard then continued: taxes and the sedition law? Was it to involvo them in one common odium, and to consign them to one common fate? Do I see, in the preliminary remarks of the honorable member, the title-page of the volume of measures which are to be pursued? Are gentlemen sensible of the extent to which it is designed to lead them? They are now called on to reduce the army, to diminish the navy, to abolish the mint, to destroy the independence of the judiciary, and will they be able to stop when they are next ful source of moneyed interest and aristocratic required to blot out the public debt, that hateinfluence? Be assured, sir, we see but a small part of the system which has been formed. Gentlemen know the advantage of progressive proceedings, and my life for it, if they can carry the people with them, their career will not be arrested while a trace remains of what was done by the former administration. like the judges, forgetting the duties of their calling, and employed in disseminating the heresies of federalism. Am I then, sir, to understand that religion is also denounced, and that your churches are to be shut up? Are we to be deprived, sir, both of law and gospel? Where do the principles of the gentleman end? When the system of reform is completed, what I stated the gentleman's words as I took There was another remark of the honorable them down. It is immaterial whether the member which I must be allowed to notice. mistake was in the gentleman's expression, or The pulpit, sir, has not escaped invective. The in my understanding. He has a right to ex-ministers of the gospel have been represented, plain, and I will take his position as he now states it. I deny, sir, that mandatory process has issued. Such process would be imperative, and suppose a jurisdiction to exist; the proceeding, which has taken place, is no more than notice of the application for justice made to the court, and allows the party to show, either that no wrong has been committed, or that the court has no jurisdiction over the sub-will remain? I pray God that this flourishing ject. Even, sir, if the rule were made absolute, and the mandamus issued, it would not be definitive; but it would be competent for the secretary, in a return to the writ, to justify the act which has been done, or to show, that it is not a subject of judicial cognizance. It is not till after an insufficient return, that a peremptory mandamus issues. In this transaction, so far from seeing any thing culpable in the conduct of your judges, I think, sir, that they have given a strong proof of the value of that constitutional provision which makes them independent. They are not terrified by the frowns of executive power, and dare to judge between the rights of a citizen and the pretensions of a President. country, which, under his providence, has attained such a height of prosperity, may yet escape the desolation suffered by another nation by the practice of similar doctrines. I beg pardon of the committee for having consumed so much time upon points little connected with the subject of the debate. Till I heard the honorable member from Virginia, yesterday, I was prepared only to discuss the merits of the bill upon which you are called to vote. His preliminary remarks were designed to have an effect which I deemed it material to endeavor to counteract, and I therefore yielded to the necessity of pursuing the course he had taken, though I was conscious of departing very far from the subject before the committee. To the discussion of that subject I now return with great satisfaction, and shall consider it under the two views it naturally presents: the constitutionality and the expediency of the measure. I find it most convenient to consider, first, the question of expediency, and shall therefore beg permission to invert the natural order of the inquiry. I believe, Mr. Chairman, I have gone through most of the preliminary remarks which the honorable gentleman thought proper to make, before he proceeded to the consideration of those points which properly belong to the subject before the committee. I have not supposed the topics I have been discussing had any connection with the bill on your table; but I felt it as a duty, not to leave unanswered charges To show the inexpediency of the present bill, against the former administrations and our I shall endeavor to prove the expediency of the judges, of the most insidious tendency, which judicial law of the last session. In doing this, I know to be unfounded, and which were cal-it will be necessary to take a view of the leadculated and designed to influence the decision on the measure now proposed. Why, Mr. Chairman, has the present subject been combined with the army, the navy, the internal ing features of the pre-existing system, to inquire into its defects, and to examine how far the evils complained of were remedied by the provisions of the late act. It is not my inten |