vain. Some men have been great at one knowledge of the forms of bufinefs will
fhew, that they might have placed that re-
time, and defpicable at another; fome
..men have performed a fingle great action, port at length on your journals. But
and never rofe to the like again; but to would this have been right ?-Would it
have tended to conciliate ?Would it have
him great actions feemed common. Some
men had appeared great at the head of ar- been a proper return for the unanimity
mies, or when furrounded by the trap- with which your committee was chofen ?
pings of power; and little when ftripped-Surely it would not: And is it not the
-Surely it would not: And is it not the
of these, and alone; fome men have with- duty of every good citizen to heal as far as
ftood the ftorms of adverfity, and been poffible, the wounds of fociety ?-To calm
melted by the funfhine of profperity; fome thofe irritations which difturb its repofe ?
men have poffeffed fplendid public talents, To remove all things which may alarm,
and difgraced these by fordid private vi- torment, or exasperate ?
ces; but it is difficult to determine when
and where Washington fhone the brighteft.
It can only be faid that he was uniformly
great."

Mr. Morris. I rife, Mr. President, as chairman of the committee whofe report you have just had the goodness to read, for the purpose of explaining their reasons. If this were a common or an ordinary occafion, if no heats had been excited, if there were no unpleasant, no tormenting recollections, a measure fo plain, so easy, fo fimple, would require neither argument nor perfuafion. It would be adopted for its own interior evidence, and from the general fenfe of propriety. Unhappily, Sir, this is not the cafe. Serious differences of opinion haye exifted, and ftill exift on the fubject with which it is connected. From these have arisen difputes, divifions, bickerings. There is not, I fear, in the minds of men, that calm impartiality which is needful to fair inveftigation. There remains much of prejudice, irritability.

and ftructure of its members, render it in. capable of fuftaining a greater weight of power.

The other houfe, indeed, immediate reprefentatives of the people, may do much. Borne on the heady torrent of popular opinion, they may, and they will ufurp all power. This will be the first step towards military defpotifm. But the fenate can have no fuch madnefs. If we can perferve what the conftitution has entrusted to our care, it is as much as can reasonably be expected. Nor can we preserve it but by our integrity, and by that relpect which justice infpires; for" Our cloud of dignity is held from falling by the weakest wind." The fecond propofition of your committee is indeed a corollary from the firft. They confider this question as cog-

We have heard, from those who are more in the confidence of our cabinet than we are, for we have no fuch pretenfions, that there is reafon to believe that this country is on the eve of war. I hope not. I hope we shall not be vifited by fo great a calamity. But if this be our doom, let us pre-nizable by the judiciary alone. It is gone pare to meet it like men, with boldnefs, with unanimity. Let us banish, let us deftroy every circumftance that can excite or keep alive a fpirit of party. Let the proudest foe be informed that he will find us firm. Let us march hand in hand, like a band of brothers, in the plain road of duty, and whether it lead to victory or death we know it is the path to glory.

Mr. Prefident, your committee have no
intention, no wish to revive a difcuffion
of points already fettled. While the act of
laft feffion was in agitation we oppofed it
Readily, pertinacioully. But that act has
become a law, and to the authority of the
law we bow fubmiffive. While in fuf-
penfe, we thought it our duty, as fenators,
to oppose. But fince it has been adopted,
according to the forms of the conftitution,

we know that as citizens we are bound to
obey. With thefe deep impreffions, then,
of what is due to the fupreme law of our
land, I fhall proceed to the report of your
committee, and endeavour to explain its
several parts.

Gentlemen will perceive, that the quef. tion which the memorialifts have fubmitted to our investigaton is, whether the law of last feffion has deprived them of their of. fice of judge-Your committee confider this question as not being cognizable by the fenate. It is not for the fenate, nor Before I proceed to an explanation, the reprefentatives, nor both combined to therefore, I find myself reduced to the pain-interpret their own acts. We are a part ful neceffity of praying gentlemen to perform a great duty to this Senate, to themfelves. I muft entreat them to hear with patience, coolly to confider, and then decide according to the dictates of reason and juftice.

Your committee have purfued the courfe which appeared to be proper, not only in itfelf but according to the exiftent circumftances.-Gentlemen will eafily fee that they might have made an elaborate report, containing a long detail of reafons to eftablish a favourite conclufion. And a flight

of the legislature. A part of the executive
power is alfo delegated to us. If the judi-
ciary be added it will conftitute a tyranny.
It is, indeed, the very definition of tyranny
which has been given by those best ac-
quainted with the fubject. This fenate can
have no wish to arrogate power. It is too
juft, too wife. If a fenfe of propriety did
not prevent, prudence alone would forbid
the attempt. This body is too feeble for
the exercife of fo much authority. Its
form, its conftitution, the mode and manner
of its creation and exiftence, the ftrength

from us forever; and is, from the nature of things, before the judiciary, in common with all other laws. To agitate it again can produce no benefit, can tend to no useful object, can accomplish no defirable end. Our opinion, whether to affirm or to deny, can be of no avail. The other houfe, indeed, have given an opinion favourable to the claim. This may appear a ftrange affertion to gentlemen who have amufed themselves with reading in newfpapers what are said to be the fpeeches of the members; But it is not from fuch fources that we are to derive the opinions of a legislative body, nor do they reft on fuch frail authority. By recurring to the journals of the houfe, I find, that on the they took up a refolution reported by the committee of the whole, purporting that the memorialists, "late judges of the circuit courts," have leave to withdraw their petition: And on this it was moved to ftrike out the words

day of

"late judges," &c. which motion was carried by a small majority. Now then, I fay, that if not directly, yet by clear implication, by ftrong and neceffary interence, the house have declared, that the fe gentlemen. are ftill judges. That they were judges is a tact unquestionable and of public notoriety. To fay, then, that they are not late judges is to fay that they ftill hold their office, that they are now judges.

Such, then, is the opinion of the house. And they, in the plenitude of their power, may venture to exprefs that opinion. But we may not. It does not become us to prejudge. It is neither wife to commit our authority, nor just to influence the tribunals of our country.

Your committee, Sir, have ventured to exprefs their belief, that the question fhould be fpeedily fettled. It learnt in early youth, from the volumes of profeffional fcience, that it is expedient for the commonwealth, that a speedy end fhould be put to litigation. And if it be important that litigation should

ceale between man and man, how much
more important that a litigated point of
public right, which interefts and agitates
the whole community, fhould be laid at
reft? And if this be important in the gener
al courfe of things, is it not, under prefent
circumdances, indifpenfable? And how is
it to be effected ?-By an exertion of
legiflative might ?-By force ?-Remem-
ber-Force will excite refiftance. Such
is the nature of the human heart. Free
citizens revolt with difdain at the exercife
of force. But judgment commands their
prompt, their willing obedience. When
the law is known, when it is declared by
the proper tribunals, all will bow to its
authority. You may then expect a full,
and quiet, and general fubmiffion. But
while it is litigated and uncertain what the
law is, differences will exift, and difcord
will prevail.

:

And to do this they muft prove two things:
Firft, that the office exifts and fecondly,
that of right it belongs to them. Failing
of either, their claim is gone.

Now, fir, it may be well to confider the
decifions which may be made and their
probable effect.

that they were loft to a fenfe of duty, can it be believed, that a few feeble judges will dare oppofe themfelves to the power of the legislature!

Having thus flated, in as few words as I could, the confequences of adopting the propofed refolution, I will now take the liberty to inquire the probabic refult of rejecting it.

I take it for granted, that thefe gentlemen, who have afked a judicial decifion, will not difclaim, and that whatever jubgment may I pray gentlemen, moft fincerely, to be given in the firft inftance, the cause will confider the neceflary confequence. Will It be brought up to the fupreme court. I it not be faid, that we are afraid to meet the judgment, in the laft refort fhould be this feeble band upon the ground of free (as it probably would be) against the claim, inquiry ?-That we are afraid to contend all complaint will be quieted, and all oppo- with the weapons of reafon and argument? fition will ceafe. Some then, indeed might-Will you not be ftrongly queflioned? triumph. For my own part, I fhould find in it great confolation-the confolation of knowing that, however wrong may have been my own opinions, the fupreme legiflature of my country have done right. The pride of opinion might, indeed, be wounded; but God forbid, that from motives of pride, or from any other motive, I fhould hear, without deep concern, that the legiflature of my country have violated that facred charter from which they derive

their authority.

Is it wife to embark in great national enterprizes, on the wild ocean of war, with a divided people? Can you hope for faccefs while difcontent fits brooding in the heart of your country? Thefe judges, indeed, are not numerous; but they do not find alone. They have relatives, friends, But fuppofe an opinion different, conadherents from blood, affection, principle.trarient, or the very reverfe (for that allo Why will you wound a clafs of citizens numerous and refpe&table? Can you, while they are aggrieved, injured, infulted, expect their cordial aid, fupport and affittance? But to this it may be faid, that thele jags are but a feeble band; we can cruth them and their oppofition. We have the pow

er.

Yes, we have gigantic power; but fhall we therefore ufe it with the leioclous cruelty of a giant ? We can cruth them. Yes, with the vaft weight of Jegiflative force we can crush thein.

is it honourable, is it magnanimous, does it become the brave? Will it give the peopie a confidence in their rulers? Will it give them a confidence in themfelves, who have chofen fuch rulers? If by a exercise of our power we could even prevent an investigation of our conduct, what would be the impreffion on the public. mind? Sufpicion and difcoutent, deep and dan

As thus-Are you confident that the judges

are wrong that their claim is unfounded? -Hear them-refute them.-Are you convinced, or do you only fear they are right?-reject their request, and with the tyrant affign as a reafon your fovereign will. Such must be the conclufion. From this dilemma it is not poffible for you to escape. If you are right you will court inquiry, and fhun it if you are wrong.

it.

But what is fill worfe, you cannot fhun Thefe Memorialists can he beard, whether you will or no.-Spite of your reluctance they can bring on an invetiga

is poflible)-Will the judges rudely declare
that you have violated the conftitution,tion. You may hide your felt beneath the
unmindful of your duty, and regardlefs of heaps of your privileges and powers; but
your cath? No--With that decency
that decency you will be traced to your lurking place,
which becomes the judicial character, that and the frong arm of juice will drag you
decency which upholds national dignity
forth to the day. Yes, thofe feeble judges
and impreffes obedience on the public will, can bring on the inquiry, in the very face
of your power-will or not will-confent
that decency, the handmaid of the graces,
or not confent-fubmit or not fubmit-
which more adorns a magiftrate than
roval robes, with that decency which to the inveftigation which they afk can take
peculiarly befits their flate and condition, place. Is it not better to meet them
they will declare what the legidature freely? to come boldly forward like men?
meant. They will never prefume to be-
lieve, much lefs to declare, that
you meant
to violate the conflitution. There will be
no dangerous and hateful clashing of public
authorities. They will never question the
excrcife of that high difcretion with which
you are invested. They will not deny
your full fupremacy. They will not ex-
amine into your motives, nor align im.
proper views.

Sir, I will detain you but a few minutes Jonger.

It appears to me effential to the dignity of the Senate, that you adopt this refolution. It is more noble to meet than to avoid legal invefligation; and it is not a novel prac

tice.

There was a time when the American legislature fubmitted their acts to judicial decifion. At that time WASHINGTON They will refpe&t you fo prefided-Will it be faid the administralong as they preferve a due refpect for long as they preferve a due refpect for tion was then too humble? He, indeed, themfelves. They will declare, that is was modeft and unaffuming; but he had affigning duties to one officer, and taking an inborn dignity of foul which taught them from another, you have to confult him, intuitively, to avoid vile fhame and only your own convictions of what the in-offenfive pride. He, alas! is gonetereft or convenience of the people mayYes, he is gone--and, Oh Heaven! require. They will modeftly conclude, viperous flander pursues him to the filent that you did not mean to abolish the offices tomb, and preys upon his afhes.Parwhich the conftitution had forbidden you don me,The name of Washington has to abolish and therefore, finding that it excitedrecollections which fill my breat was not your intention to abolith, they will with anguifh-Well, let him be declare that the offices ftill exift. forgotten. But let us not forget what is due to ourselves, to our country, to pofterity: that pofterity to whofe judgment we commit our fame, the jewel moft dear to honcurable minds.

The attorney-general, or, as he is denominated in French idiom, the public accufer, will inftitute before the proper tribunal, an inquiry by what authority thele men claim to hold and exercife the office of judge. It will then be incumbent upon Such, fir, would be the language of them, either to difclaim the office, and your fupreme judiciary, from the high then there is an end of the queftion: or fenfe they entertain of their duty.-Aad, else (claiming it) to establish their right.it it were decent to fuggeft in this fenate,

1

[As a foil, to set off the brilliancy of Mr. Morris's eloquence, we subjoin the Speech of Mr. Cocke, on the same question. They were both taken by one of the editors of the Gazette of the United States, than whom no reporter is more correct. Edit. Bal.]

Mr. Cocke. I rife, Mr. Prefident, to follow the gentleman from New-York and not to bring forward any argument of my own upon this fubject that is now before you. I fhall endeavour to follow him flep by ftep, and anfwer all the obfervations that he has made. I fhall not attempt to imitate his eloquence, and could not do it if I fhould try. He has talked about that great man, general Washington, and faid a great many fine things about him which I cannot repeat. I hope I refpect that man as much as the gentleman from NewYork, but I shall endeavour to lay afide the, feelings that I might otherwife have and keep to the point before the houfe, and leave him in his grave without disturbing of him. It has nothing to do with the queftion under confideration now.

The gentleman has wandered over a great many fubjects, and he tells us in one breath if we do not adopt this refolution we fhall be fkulking in fome places, lurking holds I believe he faid; and in another breath that we shall be dragged before the almighty judges of the nation.

he would do away all oppofition and party
and unite us like a band of brothers, as he
fo eloquently defcribed it, and all this he
would do by one great and manly exertion,
to pay thefe omnipotent judges and thus
prevent them from dragging us forth to
thame and punishment.

Sir, my mind has no accordancy with
fuch opinions. We have a good right to
fay whether we want the fervices of thefe
judges or not, and if we do not, we dont
need to pay them. I remember, Sir, laft
year the gentleman told us a likeness of a
boat, and faid, though we would not throw
the man out of the boat, we would take
away the boat from under him, and fo he
would be drowned. Now, Sir, fuppofe I
hire a feaman to work a boat for me and I
tell him that I will give him fo much
tell him that I will give him fo much
during good behaviour, and after a while
the boat becomes rotten and ufele fs to me
-he knows that I hired him to work that
boat and for nothing elfe,-can he come
forward and fay, you fhall pay me for
working that boat where there is none to
work? So thefe judges, we found that
we had nothing more for them to do,-the
law was ufelefs to us, and we repealed it;
and now fhall thefe judges come and de-
mand their pay?

We are alfo alarmed with a picuration that the other boufe are going to affume all the power, unless we let the judges come in and keep them back. Sir, I am not afraid

Se, this honourable fenate is an integral part of the executive, of which the pre-et the other house affuming the power. - dent is the head. How then can an interior and fubordinate part direct the conduct of the fuperior part? It is clear therefore that we have no right as a part of the executive, to order or requeft the prefident to do this. Have we the right then as a part of the legislature? Can the legislature affume upon itself the right of directing the executive? What is it that is intended by this refolution? It is, Mr. Prefident, that the legislature fhall interfere with the executive, and direct the prefident to interfere with the judiciary, for the purpose of getting pay for thefe omnipotent judges.

Sir, thefe judges muft depend on the legiflative will for their continuance in office, because the legiflature can make. laws and repeal them when they pleafe, and when a law is repealed and there is nothing for the judges to do and no office for them to hold they cannot exercife power or receive pay, and this is according to the conftitution. How then can thus fenate, by adopting the refolution aid in procuring pay for thefe judges, when they have nothing to do?-Judges they are called-they are not judges-l'fpofe they have been judges.

The gentleman tells us we are going to be engaged in a war-bloody I fuppofe Yes, no doubt very bloody. And before we get into this dreadful fituation

Does the gentleman recollect that they
are the immediate reprefentatives of the
people, and that the people will judge
whether they conduct well or not. The
people dont want thefe judges as guardians
to protect them from the other house nor
from this houfe, nor any body elfe, unless,
as the gentleman faid last year, from their
worst enemies themselves. I believe that
the people do not ftand in need of guar-
dians--they can take care of themielves
and we need not hire thefe judges to take
care of them.

Sir, we have heard a great deal about cominon law, and about informations. I wish to know where we are to flop it we begin to authorife our courts to procced by information. Are there not other kinds of information known to this common law, befides information in the nature of a quo warranto? If we adopt one from the common law may not the courts affume moie. Has the gentleman never heard of perfons being feized and put to death upon information? I wifh to know where we are to ftop; and whether we are to follow this common law till it leads us to thofe ermined and royal robes which the gentleman has fo finely defcribed to us. Sir, I believe that we have power without common law or informations to decide upon this petition as well as upon other petitions that are brought before us. The very petitioning of us-what does that import? Does it not import that we have the power and the right of deciding upon the petition? If the judges did not think that we had the power and the right what did they petition us for? I conclude then that we have the power and the right to grant or deny their requeft, and I am therefore free to lay that it is inexpedient to pay them for rendering no fervices.

Be it our weekly task,

To note the passing tidings of the times.

Dudson, March 8, 1803.

On Thursday, the 3d inft. the laft feffion of the feventh Congrefs clofed.

Thomas Thompfon, Efq. a federalift, has been removed from the Poft-Office at Salisbury, N. H. and Mofes Eaftman, One fentiment of the gentleman I high-Efq. a democrat, appointed in his place. ly accord with; and that is what the gentleman fays that force tends to opposition. I believe this is true. The force exercifed or attempted to be exercifed by Richard Baffet has highly excited my oppofition to this ref'ution. They have attempted to compafs by force or fraud, I think it is force and fraud both together, the payment of their falaries, and the exercife of powers which have been taken from them and given to others.

Mr. Prefident, I fhall now make only a fmall remark on the refolution itself, and fit down.

The committee fay in their report that the fenate cannot decide upon the petition, but the judges muft decide it. For this purpofe we must go to the common law.

At Philadelphia, on the 15th inst. after a tedious and painful sickness very much lamented by his friends and acquaintance, Mr. LEWIS M. THURSTON, of the house of Proud & Thurston, merchants at Baltimore, and son of Mr. John Thurston, mer

chant, of New York, aged 25 years. His funeral was respectably attended on the afternoon of the 17th inst. from the house of Mr. John Reynell Coats, and deposited in the Friends' Burial Ground of that city

1

And to do this they must prove two things: First, that the office exifts and fecondly, that of right it belongs to them. Failing of either, their claim is gone.

Now, fir, it may be well to confider the decifions which may be made and their probable effect.