nient organization of the Courts of the United States," ought to be repealed.

Mr. WHITE, of Delaware.-I shall be believed, sir, when I assure you, that nothing short of the highest sense of duty, and the great responsibility of the seat I have the honor to hold, could enable me to overcome the extreme embarrassment I feel in rising to present my sentiments to the Senate on this the most important question ever before them. I presume not to think, after the superior eloquence and talents that have been here displayed, it will be in my power to cast on the subject a single additional ray of light. Already, sir, has it been exhausted, and were I to consult my own feelings only, I should not now have to trespass upon your patience, whilst in the execution of a sacred duty, I pass hastily over part of the same ground that has before been trod by some of my honorable friends, making such additional remarks as might have escaped them. In the course of my observations, I shall confine myself to the same division of the question pursued by the honorable mover, and which it naturally presents.

1. As to the expediency. 2. As to the constitutionality of the measure proposed in the resolution.

That some system of courts is necessary in our country for the execution of laws and the administration of justice, gentlemen most hostile to the present establishment will readily admit. It is acknowledged, too, on the other side of the House, that the expenses of the present judiciary are unworthy of your consideration; that it is one of the least evils attending it; but, say gentlemen, it is upon too large a scale, it is useless, it is dan

gerous.

Sir, upon the original plan of the courts, it was found impossible that the six presiding judges traversing this extensive country, and holding their sessions in every State, could either do justice to the business, or at their advanced periods of life, withstand the fatigue of such severe and constant exercise; some alteration, some amendment of the system was found indispensable; the interest of the country demanded it of those in office, and it is for the execution of this duty that their political memories are now so illiberally reviled. It is well known, sir, that the United States are increasing in population, commerce, and wealth, beyond any former example; that new subjects of litigation are every day finding their way into your courts, and short-sighted indeed would have been the founders of the establishment now under consideration had they confined their views to the present time. Previous to the passing of this law, no man who could avoid it would commit his business to your courts, their arrangement amounted almost to a denial of justice; suitors preferred taking their chance in the State courts to the delay and expense attendant upon the proceedings in those of the United States. The constant change of presiding judges at every succeeding court, totally unacquainted with what had been done by their predecessors, and introducing new rules of practice, together with the unavoidable shortness of the terms, hung up the

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business to the great inconvenience and injury of many suitors, and must in a short time have rendered that system not only useless, but even a nuisance to the country; people could not be expected to apply for justice to a bench where time was not given to administer it.

These, sir, among many others, are some of the reasons why business had not been originated in your courts antecedent to the present law. These are the reasons, sir, why their dockets are now so low; and permit me say, that the extracts contained in this document, even supposing them correct, which happens to be far from the fact, prove nothing; they were taken at a time when the present courts had scarcely commenced their operations, immediately after the first circuit, when no gentleman will undertake to say, there had been any thing like an opportunity at a fair experiment of them. And now, sir, before the people of the country have even become acquainted with the system, and before any man, unless by the power of inspiration, can judge of its utility, it is in a moment to be dashed to pieces. Why, I ask. sir, this precipitance? Do gentlemen fear that if the measure is delayed until another session the experiment might render the system popular? And these hateful judges-for there is the rub, sir-these hateful judges will not be so safely got rid of. I hope gentlemen, at least for the present, will quiet their fears; they need not, I can assure them, apprehend any immediate danger from this mighty army of judicial veterans, so terrible in sound; they are now, I believe, sir, in Winter quarters, and even if continued in service another year. could not totally ruin and enslave the country; or, as has been indeed very feelingly expressed by the honorable gentleman from Georgia, on my right, (Mr. JACKSON,) lay our virtuous citizens in irons. The honorable gentleman from the same State, on my left, (Mr. BALDWIN,) has been pleased to tell us, that the same justice was not to be expected from the courts of the United States, as from those of the individual States, because the judges of the former cannot have a sufficient knowledge of the usages and customs of the country, and their jurors not being of the vicinage, can know nothing of the parties or their suits. I admired much, sir, the ingenuity and candor of that gentleman, but this was certainly among the least solid parts of his argument; unhappily the very reasons he adduced, proved directly the opposite of what he wished. Judges, sir, should be governed only by the law of the land; they carry it with them; they are its expositors, and are sworn to decide according to it; and have nothing to do with the usages and customs of the neighborhoods where they may happen to sit. And I have always understood that the greatest possible security for the impartiality of jurors is their being entire strangers to the contending parties, and totally ignorant of their causes, until empannelled to decide them; they then view nothing but the naked facts arising out of competent testimony, and are influenced only by law and justice. And such, sir, is the frailty of our nature, that the best man in society may be acting under

As to the outery that has been raised about sixteen hundred, or sixteen thousand, or sixteen millions of judges, if gentlemen please-calculating on the abuse of power by the constituted authorities in the use of it, the honorable gentleman from Connecticut has so fully and unanswerably replied to it, that I shall make no observations on the subject.

The gentleman from Georgia, on my right, has told us that the Constitution cannot be altered in any other way than by two-thirds of Congress agreeing to it, and then very emphatically asked, will two-thirds now agree? I hope not, sir; but because a sufficient number of us cannot agree upon altering it Constitutionally, will gentlemen force their way through it by violence, in order to get at these judges? The same honorable gentleman has been pleased to compare this system and these judges to a cotton machine; when done, | if it should not work to suit the maker, he tears it all to pieces and makes a new one. Are we at liberty to infer from this, sir, that the present judges connot be made to work to suit the present rulers, and that this system is to be demolished to displace them, in order to make a new one, and seat upon your benches of justice creatures more pliable? I hope not, sir; I am sure such cannot be the views of any honorable gentleman.

It has been day after day echoed and re-echoed from one side of the Chamber to the other, that this law was one of the last expiring acts of the former Administration; that the Legislature had no right to pass it, because they knew it would be repealed. What, sir, are we told that a majority of the last Congress had no right to pass a Constitutional law? This is novel doctrine, indeed; and were they to omit doing good because they had reason to believe their successors would do evil? I acknowledge, sir, that the establishment of this Judiciary system was one of the last acts of the former Administration, and it was the very best act; the destruction of it is likely to be one of the first acts of the present Administration, and I pray God that it may be the worst; but from such a beginning the end is indeed incalculable.

Sir, these judges may, by the strong arm of legislative power, be driven from their seats; not their own unimpeachable integrity, their virtue, and their learning, or even the sacred barriers of the Constitution itself may be sufficient to avert their fate; but remember, though advanced in years, many of them will live to see what the gentleman from Maryland has called the efflux of passion and reflux of reason-they will live to see the people of this country review with horror the present attempt; and, if till then they should happily preserve their peace and liberties, wonder how it has happened.

I will now, sir, in conclusion, notice, in a style that it deserves, the language of the gentleman from Virginia, in the discussion of this question, applied to the State of Delaware-language unworthy of this floor. He tortured an expression of my honorable friend from New York to furnish himself with an opportunity of travelling far out of the subject, in order to insult the honor of the

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State I belong to. After speaking of the suability of States, he observed that he should feel the same interest for any State, large or small, whether it were the little State of Delaware herself, or the still more insignificant Republic of St. Marino." The speech is not yet in print, but if I am wrong the gentleman will correct me. [Mr. MASON explained: he did not mean by what he said anything derogatory to the State of Delaware; on the contrary, he entertained a high respect for that State.] Mr. WHITE.-I hope, Mr. President, I may be further indulged; I did not at the moment distinctly hear what the gentleman said, but now must insist on knowing explicitly from him, not only what he meant, but whether he believes the word "insignificant," as used by him, could in any way apply to the State of Delaware? [Mr. MASON was about to explain further, when the VICE PRESIDENT rose from his seat and observed, that he was not in the Senate when the gentleman from Virginia spoke, but if he had used any such words as were charged to him, they were improper, and ought not to have been permitted. That no reflections on any State or gentleman should be suffered in the Senate, and he hoped the gentleman from Delaware would take no further notice of it.] Mr. WHITE.-As the gentleman is now pleased to deny his intention, in obedience to the Chair, I shall spare myself the trouble and his feelings the pain of a retort that very readily presents itself.

Mr. CHIPMAN, of Vermont.-Mr. President, after the length of time which has already been consumed, and the abilities which have been displayed in this debate, I can have but little hope of exhibiting anything new for the consideration of the Senate. Yet, momentous as I consider the decision to be made on the present question, involving consequences powerfully affecting the most important principles of the Constitution, I cannot persuade myself to give a merely silent vote on the occasion. In the observations which I intend to make, I shall endeavor, briefly, to examine some of the principal arguments only, which have been offered in favor of the resolution on your table.

The arguments in support of the resolution have been reduced under two general heads:

1. The expediency of repealing the law contemplated in the resolution, and

2. The Constitutional power of Congress to repeal that law.

To evince the expediency of the measure, it has been said that the system of 1793 was adequate to all the purposes of the National Judiciary; and that the judges appointed under that system were competent to all the Judicial duties required. Upon this, sir, I shall briefly observe, that from the number of terms of the supreme and circuit courts, and the immense distance to be travelled, the labor was unreasonably great. From the labors and fatigues of riding the circuit, there could not be allowed time sufficient for those studies, and for that calm and deliberate attention which is so necessary to a proper discharge of the duties of a judge.

At times, it has happened that a supreme judge could not attend a circuit court; from this circumstance, the court in the district to which I have the honor to belong, has more than once failed to be holden. At other times, the arrival of the judges has been so late that the proper business of the term could not be completed. These failures occasioned very great delay, expense, and vexation to the suitors; and we know that the same or greater failures and delays have unhappily been experienced in other parts of the United States-failures and delays which I cannot attribute to any criminal negligence of the judges, but to the burdensome duties imposed by that system, and the infirmities and accidents to which men must ever be exposed, in the performance of labors so arduous and extensive.

To prove that judges of the Supreme Court must have been competent to all the duties of that and the circuit courts, the honorable gentleman who brought forward the resolution drew a comparison from the courts and judges in England. He has told us that in England there are but twelve judges and three principal courts; that these courts embrace, in their original or appellate jurisdiction almost the whole circle of human concerns; that the two courts of King's Bench and Common Pleas, consisting each of four judges, entertain all the common law suits of forty shillings and upwards, arising among nine millions of the most commercial people in the world; and that they have, moreover, the revision of the proceedings of the subordinate courts in the Kingdom, down to the courts of pie-poudre; and that from long experience these courts have been found fully competent to all the business of the Kingdom. This statement, sir, is by no means correct. In England, the House of Lords is the supreme court of appeals in the last resort, in causes both in law and in equity. Instead of three, there are four superior courts. The court of Chancery, in which are decided all suits and matters in equity, including a very numerous and important class of causes. The courts of King's Bench, Common Pleas, and Exchequer, all of which have original jurisdiction in civil causes; and the King's Bench, besides being the highest court of criminal jurisdiction, has also the correction and revision of the proceedings of all the subordinate courts, by writ of error or otherwise. The subordinate courts, which were barely mentioned, are very numerous. There are in England, exclusive of Wales, more than forty counties, all of which have their separate courts and judges. Some of the counties are regular franchises. Lancaster, Chester, and Durham, have their separate courts, both of law and equity, which claim cognizance of causes and parties within their respective jurisdictions, even against the courts at Westminster. There are also an immense number of cities and towns corporate throughout the Kingdom; the courts and judges, of which, though more or less limited in their jurisdiction, entertain a vast variety of civil suits. There are, besides these, the high court of admiralty, which has an exclusive jurisdiction in maritime causes; the courts of the two universities,

JANUARY, 1802.

the prerogative court of the Archbishop of Canterbury, the archiepiscopal court of York, the diocesan and other ecclesiastical courts, having also an extensive jurisdiction, of a civil nature, in causes testamentary, and those relating to the distribution of the goods of intestates.

Wales is a principality, and its courts have exclusive original jurisdiction within the territory. The great sessions is the highest court of the principality from which a writ of error lies in the Court of King's Bench. The subordinate courts and judges are equally numerous, in proportion to the territory and inhabitants, with that of England. I omit the courts of conscience and other inferior courts, and magistrates almost without number. From this view, though imperfect, it is evident that the comparison attempted by the honorable gentleman, is by no means favorable to his conclusion. The population of that country exceeds in number that of the United States by one third, perhaps more; but its whole extent, inclusive of Wales, though not comprehended in the Nisi Prius circuits, does not equal one of the circuits of the United States, under the system of 1793; and yet that country employs, it is believed, more courts and judges, not only than the Government of the United States, but than all the individual States taken in addition. I do not however conceive that any advantage is to be derived from the comparison, to the one side or the other. The situation of property and civil policy, numerous and complicated rights, introduced by ancient usages, and supported by laws and habits, and by interests public and private, may render a greater number of courts and judges, a more extensive judicial system, necessary in one country than in another: I think it ought to be laid wholly out of the question.

It has been said, sir, that a knowledge of the local laws, of the customs and manners of the several States, is necessary to the judges of the Supreme Courts, and cannot be dispensed with on appeals in causes arising in different parts of the Union, and that the judges can acquire this knowledge in no way but by attending the circuit courts in the several States. But let me observe, sir, that the laws of the several States, which vary from the common law, are to be found in their statute books, in the decisions of their courts and their rules, of practice; for no custom can as such become a law. until it shall have been adopted by usages and established by judicial decisions. All these may be made to appear on an appeal, either on the face of the records in the pleadings, or in the special verdict, or by proper exemplification, and will afford the court in such case a more correct knowledge than the recollection of a judge, of what he has caught in the hurry and fatigue of the circuit.

A further objection has been urged against the continuance of the present judicial system, from the additional number of judges which it has introduced, which it is said may prove dangerous to the liberties of the country. An honorable gentleman from Georgia (Mr. JACKSON) cited the opinion of an author who has written on the British constitution, that the greatest political evil which could befall the country, was the existence of large