the State legislatures. But the spirit of the constitution seems to require two-thirds of the nation, acting by its proper organs, to propose amendments; and that, in so interesting a subject as a constitutional alteration, a less number should have no authority.

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friend from New Hampshire, Mr. Plumer, has done such ample justice to this part of the subject, as to place it out of the reach of my assistance and beyond the need of any.

I am convinced, Mr. President, that the amendment now under consideration could not, in the Senate, obtain a constitutional majority of two-thirds, or even a simple majority, were it not for the influence of instructions. Some gentlemen have ingeniously said, that until they gave this amendment the present particular examination, they had not contemplated the extent of its probable effects, and although they entertained doubts, yet they were induced by the instructions given them, to make the proposition to the legislatures, and let them decide for themselves.

Whatever may or can be said in favor of instructions generally, cannot be applicable to this case. For the purpose of obtaining amendments to the constitution, Congress can only propose, and the State legislatures ratify. The duties are appropriate and distinct, and the uninfluenced, independent act of both, requisite. The legislatures cannot ratify, till a proposal is made. This subject can be elucidated and enforced by familiar examples. The House of Representatives alone can originate a bill for raising revenue, but it cannot become a law without a concurrence of the Senate. Would not the advice and instruction of the Senate to the House, intimating our desire that they would originate and send to us for concurrence a revenue bill, be thought improper, indelicate, and even unconstitutional? The President and Senate can appoint certain officers, but they have distinct and appropriate agencies in the appointment. The President can nominate, but cannot appoint without the advice and consent of the Senate.

The letter of the constitution will certainly justify this idea of its spirit. When two-thirds of the Senate are requisite to consent and advise to a treaty, the words are "two-thirds of the senators present." To convict on impeachment, "two-thirds of the members present." Yeas and nays are to be entered on the journal, "at the desire of one-fifth of those present." In the two first cases, it is requisite to act immediately, whether two-thirds of the whole are present or not; then we see the expressions are clear, "two-thirds" refers to the numbers present. Why so? Because, without these expressions, the reference would have been understood to be the whole number of members. In the last case, why add the word "present to the one-fifth? Because, without that word, one-fifth of the whole would have been its meaning. In all other cases, when two-thirds are required, the spirit of the constitution certainly is, and the words seem to carry the meaning, "two-thirds" of the whole numbers. It is said, "that a majority of each House shall constitute a quorum to do business." House, in this case, must mean all the members. Twothirds of both Houses must, on the same principles, mean two-thirds of all the members of both. There is, I acknowledge, some obscurity, in the constitutional use of the word House, when either of the two branches of Congress is described by it; but if the intention and sense, as well as words are attended to, I am forcibly led to believe, that two-thirds of all the members of both Houses are required to sanction propositions for amendments, and that this con- But the Senate cannot nominate, nor could struction is most consistent with the wisdom their advice to the President, to make a nomiand political skill of the convention. The con- nation, be either binding or proper. The charstruction for which I contend, is analogous to acter of the several independent branches of the caution manifest in other parts of the con- our government, forming constitutional checks stitution. It was well known to the conven- upon each other, cannot be exemplified more tion, that amendments, if recommended or pro- fully, than in the mode of producing amendposed by Congress, would have an imposing in- ments. And an interference of one independfluence with the State legislatures; and that, in ent body upon the appropriate and distinct no possible instance, could more evil arise from duties of another, can, in no instance, have a indigested measures, than in the case of amend- more prejudicial effect. Can it be thought, ments, owing to the impossibility of clearly then, either proper, or constitutional, for the foreseeing their operation and effects on the State legislatures to assume the power of ingeneral constitutional system. It was made re-structing to propose to them a measure, when quisite, therefore, to wait for the uninfluenced the power of proposing is not only not given movement of two-thirds of the popular and to them, but given exclusively to Congress? federative representatives of the nation. What- As well and with as much propriety might ever may be our opinion on the point now dis- Congress make a law, attempting to bind the cussed, the State legislatures have a constitu- State legislatures to ratify; as the legislatures tional right to judge of it for themselves, and by instructions bind Congress to propose. In to determine whether a proposition for an either case, the check, which, for obviously amendment is presented to them, with the sanc-wise purposes, was introduced into the constition required, and if, in their opinions, the requisite numbers have not agreed to the proposition, they will guard the constitution, by refusing to ratify such amendment. My honorable

tution, is totally destroyed. And we have not as much security against improper amendments, as we should have, if the power were exclu sively vested in the State legislatures, and fo

this obvious reason, that in this mode of opera-
tion the responsibility, for the adoption of an
improper amendment, is divided and destroyed.
Is the sentiment correct, sir, that we shall be
justifiable in sending forth this proposition to
be considered by the State legislatures, if we
believe it ought not to be ratified? What
would be thought of the Senate, if they should
pass a bill, and send it to the House of Repre-
sentatives for concurrence, the provisions of
which they disliked entirely, and wished
to be established? And can any sound distinc-
tion be made between such a measure and the
one now before us? In either case, the single
act of the other body would be final; and in
either case, the people at large would be safer
to have but one body in existence, to legislate,
or make amendments; for all our agency in
both cases would only tend to deceive and mis-
lead, and, in addition, to diminish, if not de-
stroy, as has just been observed, the responsi-
bility of the other body.

It has been said, sir, that the House of Representatives have twice given a sanction to this measure, and that their conduct, in this particular, adds weight to it; I wish to treat that honorable body with the highest respect; but I must deviate from the truth, were I to acknowledge that their conduct upon this amendment, has a tendency to convince me that they have a full understanding of the subject. Twice have they sent us a resolution, similar in its leading feature to that on your table, and made no provision that the person to be Vice-President should be qualified for the highly responsible office, either in age or citizenship. And for aught that they had guarded against, we might have had a man in the chief magistracy, from Morocco, a foreigner, who had not been in the country a month.

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tically the conduct, which is mentioned in the quotation which I have had the honor to make from the Secretary of State: to which I ask leave to recur. "The majority, by trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism."

What avails it, then, that this country has triumphed over the invasion and violence of tone oppressor, if they must now be victims to the violence of thousands? Political death is denounced now; what denunciation will follow It would be a useless affectation in us, to pretend to close our eyes upon either the cause or consequences of this measure.

The spirit of party has risen so high, at the present day, that it dares to attempt, what in milder times would be beyond the reach of calculation. To this overwhelming torrent, every consideration must give way.

The gentleman is perfectly correct, in supposing that now is the only time to pass this resolution; there is a tide in the affairs of party most emphatically, and unless its height is taken, its acme improved, the shallows soon appear, and the present demon of party gives place to a successor. A hope is undoubtedly now indulged, that one great and dominant passion, will, like Aaron's rod, swallow up every other, and that the favorable moment can now be seized to crush the small States, and to obtain their own agency in the transaction. And when we recur to the history of former confederacies, and find the small States arrayed in conflict against each other, to fight, to suffer, and to die for the transient gratification of the great States; have we not some reason to fear the success of this measure?

In the Senate is the security of the small States; their feeble voice in the House of Representatives is lost in the potent magic of numbers and wealth. Never until now has the force of the small States, which was provided by the constitution, and lodged in this federative body, as a weapon of self-defence, been able to bear upon this question. And will the small States, instead of defending their own interest, their existence, sacrifice them to a gust of momentary passion-to the shortlived gratification of party prejudice?

Mr. President, it was suggested, in a former part of the debate, by a gentleman from South Carolina, Mr. Butler, that the great States, or ruling party of the day, had brought forward this amendment, for the purpose of preventing the choice of a federal Vice-President at the next election. And we are now put beyond the power of doubt, that this is, at least, one motive, by the observations of several of the majority, but especially by those of the gentleman from Virginia. He informs us, and I appreciate his frankness, This resolution, if circumstances shall unethat if the friends of this measure do not seize quivocally demand it, can pass at the next or the present opportunity to pass it, the oppor- any future session of Congress. But once passtunity will never recur. He tells us plainly, ed, and its passage will operate like the grave; that a minor faction ought to be discouraged, the sacrificed rights of the small States will be that all hopes or prospect of rising into conse-gone for ever. Is it possible, sir, that any small quence, much more of rising into office, should State can submit to be a satellite in the State be crushed, and that this amendment is to pro- system, and revolve in a secondary orbit around duce a part of these beneficial effects; which a great State-act in humble devotion to her amendment he compares to the bill which was will till her purposes are gratified, and then introduced into the British Parliament, to ex-content herself to be thrown aside like a castclude a popish successor to the Crown, commonly called the exclusion bill. Have the minority, then, no right left but the right to be trampled upon by the majority? This is iden

off garment, an object of her own unceasing regret, and fit only for the hand of scorn to point its slow and moving finger at? Can the members of the Senate, who represent the

small States, quietly cross their hands and re- | the wizard spell, and force mankind to listen to quest the great States to bind them fast and to draw the ligature?

THE JUDICIARY SYSTEM.

dence in a tribunal of judges for the business of a court, consisting of many, as of few; from three to five, the good sense and experience of all nations has declared to be about the proper number, and we thought it conducive to the general good to establish tribunals in such manner as to carry justice to the door of every man.

In this modification of the system, the jurisdiction of the circuit court has been extended as it respects the sum in demand, of which they are to take cognizance, and as it respects the disputes which arise, concerning the title of lands; and exclusive jurisdiction is given of all crimes committed within fifty miles of their place of session. The intention was to ensure a prompt execution of justice, and experiment alone can test the wisdom of the plan.

Although this subject had been recommended before, and committees had contemplated a revision and alteration of the system, I do not remember that a bill had ever been presented to either House of Congress until 1799. In that session a bill was reported, similar in its features to the act which passed last session. It might have been acted upon in the House of Representatives; of this, however, I am not confident; but I recollect it was printed, and I take it to be a sound rule, adopted by all the members of both Houses had it before wise and deliberate bodies, not to repeal an them, and at the last session, with some alter-existing law until experiments shall have disations and amendments, it was enacted into a law. I believe all parties wished for a revision and amendment of the system, in respect to circuit courts; the difference of opinion was principally this: some supposed an increase of the judges of the supreme court to such a number as would render the duties of the circuit practicable for them, and provide for the pletion of business, would be the best amendment; the others thought the law, as it passed, was preferable.

covered errors, or unless there is a vice so apparent on the face of the law, as that justice shall require an immediate destruction of it. Has there been time to gain information by experiment? No man will pretend this as a justification of the repeal; for the little time the law has been in force, so far as I have obcom-tained any knowledge upon the subject, it has gained credit.

I acknowledge, that in deliberating upon this subject, we always assumed the principle, that the establishment of courts was important to protect the rights of the people; we did not fear an army of judges, as has been hinted by the gentleman last up, Mr. Jackson. In this opinion we might be mistaken, but we were honest in our professions. Although some believed that more of the business of the United States might be confided to the State courts; yet it is not within my recollection, that the question was considered in any measure a party question. I am confident, that at the session of 1799, and for a long time before that, the friends of this law, which eventually passed last winter, could not, nor did not, contemplate any change of administration. A revision of the system was long a subject of deliberation; we believed an increase of circuit judges, to the number requisite to perform the duties, would be an inconvenient increase of the supreme court, and though it was desirable for the judges of the supreme court to see the people and be seen of them, yet the preference was given to the system now proposed to be repealed. We suppose it would be an evil to increase the number of judges of the supreme court to thirteen, fifteen, or seventeen. A court which is to act together, should not be numerous; on this subject all men have agreed; here may be danger of an "army of judges," as the gentleman says; for although in Great Britain the twelve judges are sometimes called to give an opinion, yet no man will feel equal confi

Another maxim in legislation, I think, is correct, not to give up a law in existence, which is conversant about extensive and important concerns of the community, and about which there is a necessity of enacting some law, without seeing clearly what can be substituted for it, and that the substitute has manifest advantages. This resolution leads to no result, but a repeal. I have stated the errors of the former system of Circuit Courts, and if expense is an objection to the present system, as I have heard urged out of doors, the same, or nearly as much, must be incurred, if we increase the number of Judges of the Supreme Court, as to effect a reform in the Circuit Court. Why repeal this law, then, and leave us without any, or without any adequate to its purpose?

Is this system so very vicious, that it deserves nothing but abhorrence and destruction? It costs us a little more than thirty thousand dollars, and by it the number of circuit judges is increased to sixteen; and by it likewise is contemplated reducing the number of supreme judges to five, when it can constitutionally be done. Is the expense an object, when by that expense we extend the jurisdiction of a court over this vastly extensive, growing country, and carry law and protection to every man? This country is in a singular condition; a great tract of unsettled lands is peopling with rapidity, and numerous emigrations increase our population far beyond its natural increase; is it not of importance that courts should be loca ted among them, early, to correct the restless spirit which is frequent in new and scattered settlements? And are not the emigrations

composed of such as require the prompt as- | conjecture can be derived from this "exact" sistance of the law, to preserve among them statement. The President is usually more corregularity? Punishment to us, and to all good rect, and how this peremptory language in the men, should be a strange work; but to prevent message comports with the document, every crimes, is the work of a God. I speak to gen- man can see for himself. I am not disposed to tlemen, who have many of them graced the attribute intentional error to any man, much judge's bench, and adorned the professional less to the Executive; but in point of use the robe they have worn, and are therefore not statement amounts to nothing; we may just as obliged to be particular that I may be under- well imagine without it as with it, how many stood; a word to the wise will be sufficient. suits were pending at the institution of the new A judiciary, in a national point of view, is ab- courts. solutely necessary, and an extension of it to every national purpose is equally necessary. To depend upon State Courts, not under obligations nor amenable to you, besides having as much business allotted to them by the respective States, as they can accomplish, and depending upon them, and not on us, for existence-will require only to be mentioned, to be exploded. Locating your judges in the various parts of the country, by them promulgating the national laws, which is well known has been a subject of great difficulty, and giving them daily opportunity of mixing with people, not well disposed to order and law, may prevent disorders and insurrections, and save millions of expense, which pecuniary saving will be the least of the important events arising from such

a system.

But it will probably be said the courts have not business to employ them; and the documents received from the Executive will be produced in evidence. And it may further be said, the President has in his message recommended a repeal of this law. The words of the message are: "The judiciary system of the United States, and especially that portion of it lately erected, will of course present itself to the contemplation of Congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts, and of those that were depending when additional courts and judges were brought in to their aid." Is this a recommendation to repeal? Suppose, for argument's sake, it is. Let us look at this "exact" statement. In the recapitulation, 19th page of document 8, there appears to have been instituted 8,276 suits, and pending when this court went into operation 1,539. But on further inspection, it will be found, that Maryland is entirely omitted; this omission is unaccountable, since the means of knowledge were so near at hand; 119 causes undecided in Tennessee; 134 in North Carolina, and 331 in Virginia, are omitted; making in the whole an error of five or six hundred canses. In addition to this, the number of suits in New York are not stated correctly by the statement of the attorney when he made the return; and not one is carried out as pending in the recapitulation; and the return of Massachusetts is incorrect on its face; so that nothing more than

But I acknowledge that the number of suits pending is not, in my mind, any criterion upon which a correct judgment may be formed of the utility or necessity of courts; or to say the most of it, it forms but one ground of judging, and that not a very conclusive one. In a country thinly settled, it is frequently as important to establish courts as in a more populous country; and as this government is situated it may be more so; and yet the number of suits will bear no proportion. Why did we establish courts in our territorial government but on this principle?

A number of courts, properly located, will keep the business of any country in such condition as but few suits will be instituted; and courts badly organized will discourage suitors, and there will be but few actions returned. From the number of suits alone, there can no sound judgment be formed.

But there is another objection to the repeal of the judiciary law, which in my mind is conclusive. I mean the letter and spirit of the constitution.

In the formation of every government in which the people have a share in its administration, some established and indisputable principles must be adopted. In our government, the formation of a legislative, executive, and judiciary power is one of the incontrovertible principles; and that each should be independent of the other, so far as human frailty will permit, is equally incontrovertible. Will it be expected that I shall quote Sidney, De Lolme, Montesquieu, and a host of elementary writers, to prove this assertion? There is, probably, no conflict of opinion upon this subject. When we look into our constitution of government, we shall find in every part of it, a close and undeviating attention to this principle. Our particular form is singular in its requirements, that full force and operation be given to this all important principle. Our powers are limited, many acts of sovereignty are prohibited to the national government, and retained by the States, and many restraints are imposed upon State sovereignty. If, either by accident or design, it should exceed its powers, there is the utmost necessity that some timely checks, equal to every exigency, should be interposed. The judiciary is established by the constitution for that valuable purpose.

In the British Government, the legislature is omnipotent to every legislative effect, and is a perpetual convention for almost every consti