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Senate.]

Internal Trade with Mearico.

[JAN. 26, 1825.

doing all we have done for foreign commerce, and for the security of our maritime frontier; nor can we refuse what is necessary for the commerce and security of the West. Mr. MACON replied, that the case of the light-house, in the West Indies, could hardly be called a precedent, that it was not done by authority of Congress. As to the expense of protecting commerce in the West India seas, from pirates, &c. Mr. M. said, it was as much for the benefit of the people of the Western States, as of any other part of the Union, as the products of the West were necessarily transported through those waters, and the people who furnished the cargo, were as much interested in the safety of the commerce, as the owner of the vessel, &c. Mr. KELLY, of Alabama, said, he trespassed with great reluctance on the attention of the Senate. The great object of the bill is to cherish and foster a com: merce already in existence, between the American and Mexican republics. That commerce, to be mutually be: neficial, must be regulated and protected, and placed upon a footing of safety and reciprocity by the respective governments. This commerce must be carried on by land, through several Indian tribes. To be safe, a road must be had, a right of way, or a trace, if you please, secured. To answer the object, this trace must pass the boundary of the United States, and extend for several hundred miles through the wilderness country, in the Mexican republic, to the settlements with whom the traffic must be carried on. Now, sir, to stop the “trace” at the boundary of the United States, would leave this intervening Mexican wilderness to obstruct the proposed intercourse. Why should this be left I cannot agree, said Mr. K. with the gentleman from Maine, (Mr. Holmes,) that we have done enough in going to our own boundary, and that we may leave the balance to the Mexican government. It may be well to remember that the Mexican government is in the germ of its existence, struggling with difficulties that we have long since surmounted; and, without intending any disrespect to the population of Mexico, we may, say, in the most friendly manner, that they are less intelligent in commercial matters than we are; and, although, to us, the advantages of this commerce are clear and obvious, they may not be so to them; and, however reasonable the calculation may be that they will meet us at the boundary line, and mark the trace through their own territorv, I cannot help feeling some doubt, myself, that they may fail to do so as promptly as the commerce in question requires it should be done. It occurs to me, then, as the most rational mode of legislating on this subject, to approach the Mexican government in a language best of all calculated to obtain promptly the object in view. It may be true, as stated by the gentleman from North Carolina, (Mr. Macos,) that, in days of yore, many persons made fortunes by traffic with the neighboring Indians, when they had to trudge along “a trace;” and, although this be true, as a fact, I am still willing to travel on a road, when I can find one; and this, it seems to me, may be done by the men of the present day, without incurring the charge of irreverence to their ancestors. , And, although this traffic may have been thus profitable, without the aid of government, I am confident it would have been on a better footing if it had been under the protection of the government. I have no idea that Indian depredation is to cease on the establishment of this trace, but I believe that less blood will be shed, and less property plundered, under proposed regulations by the government, than it can be if left to unaided individual enterprise. Mr. TALBOT thought, that, if the section were struck out, the effect of the bill would be destroyed. He argued to shew that it would be far better, before commencing the road, to enter into negotiation, and arrange everything with the Mexican government; because, if

the United States were to adopt a route, and do their part without an understanding with the other government, the route might not be located to please the Mexican Government, and the money expended would be wasted. Why not retain the section that authorized the negotiation with the Mexican Government for every thing that was required 2 Mr. SMITH thought that the advantages of this commerce might be held out to the Mexican Government, and when they found that they could get their goods on more reasonable terms, they would be induced to join with the United States in making this road. He should vote for the bill, but from a different view of it from that taken by his friend from Kentucky, (Mr. Johnson.) Mr. S. thought that sufficient occasions for expending the public money always presented themselves, without seeking them; he repelled the assertion, that the interest of the Eastern States had always been preferred to that of the West—and asserted that the Eastern members voted for all the measures beneficial to the people of the West. He cited many great objects of expense: the Cumberland Road; the military works at Mackinaw, and on the Lakes, &c. to shew that the interests of the West were not neglected. He did not like the argument that went to prove that one part of the Union was hostile to the other. The only question with him was, whether commerce could be carried on there to advantage, and, as he was satisfied it could be, he should vote for the bill. Mr. BROWN was very glad to hear such sentiments fall from the honorable gentleman, and hoped that a reciprocal good feeling would always exist. He thought there cuold be no objections to the bill, and approved the proposition to treat with the Mexican Government. He differed from his friend from North Carolina, (Mr. Macon.) This was something more than Indian trade, and it did not at all follow that, because, in former times, large fortunes were made by the Indian trader, who had traces, that no road should be marked out now. Mr. LLOYD, of Massachusetts, had been very much misunderstood if he had been supposed to make the motion with feelings hostile to the bill—he was in favor of it—the mere trifle of money proposed, was nothing—he was opposed to the principle of laying out money in the territories of a foreign power. If it were for the mutual advantage of both parties, the Mexican Government would of course be as ready as we were; but, if it were not, then they would not suffer us to enjoy it. As to the expenditures made for the protection of commerce on the ocean, Mr. L. said it was for the benefit of all—it was not a local interest. The only way that the revenue was procured, was by commerce, and it was the duty of the government to afford it every protection in its power. He should be pleased to see the road opened; it would pass through a most fertile country, and opened a communication between, as the gentleman expressed it, two of the most splendid republics in the universe.— Would not the Mexican Government, having a population of seven millions of souls, and gold and silver mines at command, furnish $3000 for her share * Yes, if the project pleased them, they could give five hundred times as much ; and, if they did not like it, that was another consideration. If the gentleman would alter the phraseology of the bill as Mr. L. had suggested, he would vote for it. Mr. BENTON was well aware of the weight of the objection urged by the honorable gentleman from Massachusetts, and he was satisfied also that the gentleman was not influenced by pecuniary motives. It was naturally a question of policy, and a subject to which his attention had been previously turned by the precedent he had yesterday cited in justification of the section proposed to be struck out. Although this proposition went by the name of a road, yet, Mr. B. said, it was not so in

fact; all that was proposed to be done, was to cast up

JAN. 26, 1825.]

mounds of earth and sand, and pyramids of stones, to mark out the way. . Without a figure, they might be called light-houses; for they were, in point of fact, guides to the passenger. The present measure differed from the act of 1807, authorizing a road to be opened through Florida in two points: that road went through the settlements belonging to the King of Spain, and was a road, properly speaking; this was merely a track, and passed only through the unoccupied parts of the Mexican territory. It was argued that, if this trade were beneficial to the people of Mexico, they would meet us halfway; but it was very easy to imagine a trade that was more beneficial to one party than another. We, said Mr. B. are the carriers, and it is we who have need of the road to travel upon; but it is idle to expect that these people will make roads; they are blinded by ignorance. As an instance, he mentioned that the Province of New Mexico has been established for more than 150 years; the commerce between Mexico and Santa Fe is carried on by means of mules; the journey there and back occupies five months; and, during the whole period mentioned, has passed but by one route; yet it is a fact, that, on this whole route, there is not such a thing as a bridge, except such as are composed of poles put side by side, such as only our dogs would cross, and such holes were suffered to exist in them, that our men. and even our dogs, would be in danger of breaking their legs. if, then, for so many years, they have not thought it worth while to make a better road for this valuable branch of commerce, how are we to expect them to co

Internal Trade with Mexico.—Rules for Presidential Election. [S.& H. of R.

operate here? We are not to expect any thing more from them than the privilege to mark out the way: The question was then taken on striking out the econd section, and negatived—ages 15, noes. 23; and the bill was ordered to a third reading, by the following vote : YEAS.–Messrs. Barton, Benton, Bouligny, Brown, D’Wolf, Eaton, Edwards, Elliott, Holmes, of Miss. Jackson, Johnson, of Ken. Johnston, of Lou. Kelly, Knight, Lanman, Lloyd, of Mass. Lowrie, McIlvaine, McLean, Noble, Palmer, Parrott, Ruggles, Seymour, Smith, Talbot, Taylor, Thomas, Van Buren, Van Dyke.—30. NAYS.–Messrs. Branch, Chandler, Clayton, Cobb, Gaillard, Hayne, Holmes, of Maine, King, of Ala. King, of N. Y. Macon, Tazewell, Williams.-12.

House, OF REPRESENTATIVES-saME DAY. RULES FOR PRESIDENTIAL ELECTION.

Mr. WRIGHT, form the Select Committee appointed to prepare rules to be observed in case the election of President and Vice President shall devolve on this House, made the following report: The committee appointed “to prepare and report such rules as, in their opinion, may be proper to be observed by this House, in the choice of the President of the United States, whose term of service is to commence on the fourth day of March next, if, on counting the votes given in the several states, in the manner prescribed in the Constitution of the United States, it shall appear that no person has received a majority of the votes of all the Electors of President and Vice President, appointed in the several states,” REPORT: That the following Rules be observed by the House in the choice of a President of the United States, whose term is to commence on the fourth day of March, 1825, if the choice shall constitutionally devolve upon the House: 1st. In the event of its appearing, on opening all the certificates and counting the votes given by the Electors of the several states for President, that no person has a majority of the votes of the whole number of Electors appointed, and the result shall have been declared, the

same shall be entered on the Journals of this House.

2d. The roll of the Hourse shall then be called, and, on its appearing that a member or members from twothirds of the states are present, the House shall immediately proceed, by ballot, to choose a President from the persons having the highest numbers, not exceeding three, on the list of those voted for as President; and in case neither of those persons shall receive the votes of a majority of all the states on the first ballot, the House shall continue to ballot for a President, without interruption by other business, until a President be chosen. 3d. The doors of the Hall shall be closed during the balloting, except against Members of the Senate, and the Officers of the House ; and the Galleries shall be cleared on the request of the Delegation of any one state. 4th. From the commencement of the balloting until an election is made, no proposition to adjourn shall be received, unless on the motion of one state, seconded by another state ; and the question shall be decided by states. The same rule shall be observed in regard to any motion to change the usual hour for the meeting of the House. 5th. In balloting, the following mode shall be observed, to wit: The Representatives of each state shall be arranged and seated together, beginning with the seats at the right hand of the Speaker's Chair, with the Members of the state of Maine, thence proceeding with the Members from the states in the order the states are usually named for receiving petitions, around the Hall of the House, until all are seated; A ballot-box shall be provided for each state; The Representatives of each state shall, in the first instance, ballot among themselves, in order to ascertain the vote of their state, and they may, if necessary, appoint tellers of their ballots; After the vote of each state is ascertained, duplicates thereof shall be made out, and, in case any one of the persons from whom the choice is to be made, shall receive a majority of the votes given, on any one balloting, by the Representatives of a state, the name of that person shall be written on each of the duplicates; and, in case the votes so given shall be divided, so that neither of said persons shall have a majority of the whole number of votes given by such state on any one balloting, then the word divided” shall be written on each duplicate; After the delegation from each state shall have ascertained the vote of their state, the Clerk shall name the states in the order they are usually named for receiving petitions; and, as the name of each state is called, the Sergeant-at-Arms shall present to the .#. of each, two ballot-boxes, in each of which shall be deposited, by some Representative of the state, one of the duplicates made as aforesaid, of the vote of said state, in the presence, and subject to the examination, of all the members from said state then present; and, where there is more than one Representative from a state, the duplicates shall not both be deposited by the same person; When the votes of the states are thus all taken in, the Sergeant-at-Arms shall carry one of the said ballot boxes to one table, and the other to a separate and distinct table; One person from each state, represented in the balloting, shall be appointed by its Representatives to tell off said ballots, but in case the irepresentatives fail to appoint a teller, the Speaker shall appoint; That said tellers shall divide themselves into two sets, as nearly equal in number as can be, and one of the said sets of tellers shall proceed to count the votes in one of said boxes, and the other set the votes in the other;

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Rules for Presidential Election—United States' Penal Code. [JAN. 26, 1825.

When the votes are counted by the different sets of tellers, the result shall be reported to the House, and if the reports agree, the same shall be accepted as the true votes of the states; but if the reports disagree, the states shall proceed, in the same manner as before, to a new ballot. 6th. All questions arising after the balloting commences, requiring the decisions of the House, which shall be decided by the House voting per capita, to be incidental to the power of choosing a President, shall be decided by States, without debate; and, in case of an equal division of the votes of states, the question shall be lost. 7th. When either of the persons from whom the choice is to be made, shall have received a majority of all the states, the Speaker shall declare the same, and that that person is elected President of the United States. 8th. The result shall be immediately communicated to the Senate by Message; and a committee of three persons shall be appointed to inform the President of the United States, and the President elect, of said election. The report was read and ordered to lie on the table.

UNITED STATES’ PENAL CODE.

The House then proceeded to the unfinished business of yesterday, which was the bill making, further provi. sion for the punishment of crimes against the United States. Mr. LIVINGSTON, of Lou. moved to amend the bill as follows: [The amendment of Mr. LIVINGSTON proposes to strike out the 18th, 19th, and 20th sections of the present bill, and to insert in lieu thereof several other sections, the object of which were, to define the crime of forgery, and provide for its punishment by confinement at hard labor not less than seven, nor more than fifteen years, and to provide for the punishment of the various modifications of this offence, and guarding against the evasion of punishment by technical exceptions. The general purpose of the bill was to substitute imprisonment at hard labor, in lieu of death, as the punishment for forgery.] In support of the above amendments, Mr. LIVINGSTON observed, on the general subject, that it had been held by some that forgery was an offence, in England, by the common law. He doubted this, however: since, as early as the reign of Richard II. a statute was passed on the subject, and, before that time, the practice of writing was comparatively rare, and written instruments but few. And, from the reign of Richard II. to that of Henry VI. the statute provision was confined to the forgery of public records. From the days of Elizabeth to the present time, they have been constantly multiplying, till they now amounted to sixty at least. The reason of this multiplicity was, that the statute law, instead of giving a definition of the crime, was occupied in describing the objects forged—and, as these multiplied with the progress of society, the statutes multiplied with them. The United States, he regretted to say, had imitated this bad example, and gone into a similar course of vicious legislation. This course was begun by the statue of 1789, which related to indents, and which punished the forgery of them with death. Then came the statute against the forgery of bank notes: and, although this crime was so much more frequent than the forgery of Government securities, and, on that account, so much more dangerous to society, it was punished by imprisonment only. The bill on the table belongs to the same species of legislation. It gives no general definition of the crime, but a long enumeration (inade, he acknowledged with great deliberation and care) of the instruments for the forgery of which it provides punishment. But, if, in this enumeration, however careful, a single instrument has been omitted, then a new statute will be needed to punish the forgery

of that instrument; and, if another shall be discovered to have been omitted, then there must be another statute. He objected to this whole course, and thought it far preferable that the crime should be defined and punished by one general law. The amendments had been printed and had laid on the tables of the members for many days. They had been examined and approved by several of his friends, and ought not now, therefore, to be viewed as a mere novelty of his. Mr. L. then went into a particular review and explanation of the amendments he had proposed—insisted that the definition by which they limited the crimes, comprehended all that ought to be punished—was calculated to save many statutes—prevented equivocation—provided for the forgery of patents, sea letters, certificates, and attestations, transfers of stock, transfers of deposites, &c. &c. Having gone very fully into this explanation, (but in a manner which no report can render fully intelligible without a constant reference to the various clauses of the amendments proposed,) he appealed to the House whether a law of this description was not eminently desirable. He then explained that part of the amendments which prescribes the punishment of the offence, and lastly, that part of them which relates to the mode of prosecution ; and, under this division of the subject, he took occasion to remark on the wide diffusion of this crime in society—the great temptation which existed to commit it, and its alarming increase in modern times. He insisted on the necessity of rendering its punishment certain: the offender must be made to know that he had no possible escape. An extensive practice had convinced him, that there existed among offenders, more hope of escape in relation to this crime than almost any other. They trust to chicanery and hope to the last, that there will be some flaw in the indictment, or some legal quibble, by means of which they may get free. One great object of the amendment was to remove this hope and utterly annihilate it. It avoided all defects in the legal description of the instrument forged, by simply |annexing a copy of the instrument to the indictmeat, and it required the accused and his counsel to state every technical objection to the form of proceeding, the day before the trial, precluding, at the same time, the pleading of such objections in arrest of execution, after conviction by a jury. Having gone through his observations, explanatory of the several features of the amendments he had proposed, Mr. L. remarked, in conclusion, that, from what had passed yesterday, he was led to doubt whether the House was now prepared to give the amendments that mature consideration to which, in his opinion, they were entitled. He should not feel the same fear at any other time— for he had been led to observe, that once in about four

menon in the atmosphere of this House, which indisposed gentlemen to every subject which required close and patient investigation. It usually continued from the beginning of January to the latter end of February, and he felt unwilling during that interval, to press the farther, consideration of the subject he had brought under the form of an amendment to the present bill. He had thought it was proper to bring the subject forward, and give it the explanation he had done, being convinced, from the experience of not a short life, that truth would always prevail sooner or later. The people of the United States would see the proposition, and would hear something of the reasoning by which it was supported. They would not, he hoped, be altogether without effect. And should the confidence of his constituents be continued to him for two seasons longer, he hoped to bring forward, (and he wished to be considered as pledging himself to that effect,) a general system of penal law for the United States. Mr. WEBSTER rejoined in the assurance just given

by the gentleman from Louisiana, that he intended to

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bring forward a general system of criminal law; he said he considered no man as more fit, from his long attention to the subject, to undertake such a task; and he hoped that gentlemen would remember that his words had created an expectation on this subject, which it would be his duty to realize. He should, in the mean while, abstain from entering into any discussion on the amendment now before the House, inasmuch as it must be apparent that it proposed a new principle and a new practice in an important branch of criminal law; and would require a much more extended consideration than could now be given to it. He would observe, however, that the definition of the crime of forgery, as given by the gentleman, appeared to him to be very exact; yet, he thought he could see great difficulty in adopting the plan proposed, arising from the limited power of the General Government. The question was then taken on Mr. LIVINGSTON'S amendments, and decided in the negative by a large majority. Mr. LIVERMORE, of New Hampshire, then offered, as an amendment, a new section to the bill, the effect of which was to require that the name and conduct of the convict suffering imprisonment under the act, should, from time to time, be reported to the President of the United States, who should have power to shorten the term of confinement as the good conduct of the prisoner might appear to him to merit. Mr. LIVERMORE supported this amendment by a few remarks, in which he expressed his unwillingness to exclude the last ray of hope even from a prison. He thought that it was proper to preserve to the convict some little expectation that, if he was submissive, and behaved himself properly under his punishment, the President would remit something of its extent. He did not know that, at present, that officer, though he has power to pardon, has any authority to lessen the punishment of a criminal not pardoned. If any motive could induce a prisoner to deport himself with propriety, he thought that such a hope as this amendment held out was calculated to do it. He should not, however, delay the bill, and, unless there was an acquiescence on the part of the House, he should withdraw the amendment, rather than occasion any debate. Mr. WEBSTER entirely approved of the principle of the amendment, but apprehended, as the United States have no penitentiaries of their own, some difficulty might arise from the introduction of new rules in a penitentiary, borrowed from one of the states. Mr. LIVERMORE replied, in a few words, and the question being taken on the amendment proposed by him, it was decided in the negative. The bill, as amended, was then ordered to be engrossed and read a third time on Friday next. Mr. FORWARD, of Penn., then moved, that the House go into committtee of the whole, on the bill laying a duty on sales at auction, The motion was negatived— ayes 54, noes 80.

POWERS OF THE SUPREME COURT.

On motion of Mr. LETCHER, of Kentucky, the House then went into committee of the whole, on the state of the Union, and took up the resolutions moved by Mr. L. at the last session, as follows:

“Resolved, That provison ought to be made be law, requiring, in any cause decided by the Supreme Court of the United States, in which shall be drawn in question the validity of any part of the constitution of a state, or of an act passed by the legislature of a state, that Justices shall concur in pronouncing such part of the constitution, or act, to be invalid; and that, without the concurrence of that number of said Justices, the part of the constitution, or act of the Legislature, (as the case may be,) so drawn in question, shall not be deemed or holden invalid.

“Resolved, That the Justices aforesaid, in pronouncing their judgment, in any such cause, as aforesaid, ought to be required by law to give their opinions, with their respective reasons therefor, separately and distinctly, if the judgment of the Court be against the validity of the part of the constitution, or act, drawn in question, as aforesaid. '

“Resolved, That the Committee on the Judiciary be instructed to report a bill, in conformity to the preceding resolutions.”

Mr. T. P. MOORE, of Kentucky, rose in support of the resolutions. He said that he was sensible that, in approaching the object of the resolutions of his colleague, the first impression he should be likely to encounter would be a belief that he was not penetrated with sufficient respect for the constitution under which we live; that he desired to impair its powers, to narrow its dominion, to disturb the just equilibrium which has been wisely established between it and the states of which our system is composed. If this impression were Just, said he, it would greatly discourage, if it did not completely defeat me. But, Mr. Chairman, my object, as well as that of my worthy colleague, (Mr. Letchen,) is a very different one—it is to preserve and perpetuate the constitution. It is to support and fortify the great principle, the right of self-government, on which the constitution itself is founded. It is to uphold the sovereignty of the states, which is the key-stone of the Union. It is to preserve us from the repetition of wrongs which nearly snapt the ties of unity and affection that hold the confederacy together—which, as long as they are preserved, are stronger than links of iron. Our object is prospective, and our means preventive. I will not, therefore, revert in detail to all the circumstances connected with the decision of the Supreme Court upon the Occupying Claimant Laws of Kentucky, calculated to affect the rights, the welfare, and the sovereignty of the state. I need not say how that decision wounded her pride, how it threatened her independence, how it disorganized her policy, how it paralyzed her vigor, or how it has distracted her peace. Nor will I bring to view the sufferings of those hardy adventurers who, af. ter purchasing their land warrants, and paying for them to the parent state, Virginia—who, after planting comfort and humanity in the haunts of savages, have since been, or are likely to be, expelled from their peaceful homes, by a process of law more cruel than the Indians themselves. The first emigrants to Kentucky, Mr. Chairman, were the patriots whose energy and whose valor contributed to secure the liberty of America, and who had then to go toward the setting sun in search of a place to rest in. The forests of the west fell before their toil; the foe of the white man retired from their valor, and a state was added, by their enterprise and industry, to our rising republic. These men and their children, whose character can be read in the history of the late war, are, by the practical operation of this decision, now to be despoiled of the chief fruits of their long, their strenuous, and, as they hoped, their successful toils. By the practical operation of this decision, men who adventured to Kentucky when it was a wilderness, who dared the tomahawk and scalping knife; fought the Indians off the soil; cleared farms; built houses, and planted orchards—are to be deprived of them without receiving a cent for the increased value which their labor has given to the soil. This, too, by men who participated in none of their dangers or their sufferings; who came among them armed with a senior patent, or, perhaps, a junior entry made with a little more legal skill and adroitness, and, backed by the decision of the Supreme Court upon our Occupying Claimant Laws. Is it, then, surprising, that, under a decision so destructive of their prosperity, and, as they honestly believe, so manifestly

unjust, that the people of Kentucky should resort to the constitutional privilege of remonstrance and complaint’

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But this is past, and if it was inflicted without mercy, it has been borne without resentment—the people of Kentucky still look with confidence and devotion to the Union, and recur to the occasion of their own distress only to make it redound to the welfare of the nation. Our object is a national, not a local one ; the true policy of the nation, we conceive, is embodied in the resolutions of my colleague—they aim both at preventing the repetition of such decisions of the Supreme Court as we think have inflicted injuries and injustice upon us, if that can be done, and at allaying the excitement they are calculated to produce, in case they ever should be repeated. It is, in a few words, designed to inspire the Court with a little more caution in the adjudication upon cases affecting the validity of state laws, and to clothe its decisions with more weight and authority. Nothing, it appears to me, can be more prudent, more patriotic, more peaceful. Caution and dignity are the handmaids of justice ; and the adoption of the resolutions will convey no disrepect to that august and salutary department of the Government. . It will not enfeeble or depreciate its decrees, to have it known that they carry almost the unanimous wisdom of the Court along with them. The nation will be satisfied, and its satisfaction will tend to exalt the character of the Court. Adopt the modification which is proposed, and, if an opinion of the Court should appear hereafter to distort the mild countenance of the constitution with a frown of tyranny, whether it be applied to the rights of Kentucky, Ohio, of Maryland, Pennsylvania, or Virginia, it would be regarded with more surprise, and be treated with more respect than at present. The concord of the states and the harmony of the Union would be complete, and the acts of the judiciary would be acquiesced in ; its encroachments would not be complained of, and why should not the Court be thus modified ? We shall be told that it will enable a minority of the Court to govern in cases affecting the validity of state laws. As well might it be complained of, that a minority of the Senate govern because the constitution requires the concurrence of two-thirds to ratify a treaty, and that valuable treaties way be defeated by a minority. Again, if you desire to amend your constitution, no matter how obvious the defect, it requires the concurrence of two-thirds of Congress, and three-fourths of the states, yet the Supreme Court are the expounders, and virtually the makers, of our constitution. Thus, the constitution itself seems to sanction the modification proposed. Besides, it should be borne in mind, that the case cannot reach the Supreme Court of the United States, until it has passed the popular branch of the Legislature, the Senate, received the approbation of the Governor, and the sanction of the Supreme Court of the state. Here you throw into the scale of the minority of the Supreme Court, the voice of a whole state, sanctioned by the legislative, executive, and Judicial departments of the state government. Which, I ask, should prevail, according to the genius and spirit of our institutions, and what becomes of the argument that a minority may rule On the other hand, the Supreme Court, consisting of four, certainly not superhuman beings, certainly not lifted above all the frailties incident to humanity, three concurring, vacate a law thus solemnly enacted, however strong the convictions of the judges dissenting, or equivocal the acquiescence of the Judges who assent, may be.

ously, in which principles, as novel as they are extraordinary and dangerous, are settled; but it may not be improper to remark, that each of those cases produced excitement and occasioned complaint, and that many of the points on which those turn, were subtle and attenuated; and that, considering the immense consequence and vital interests involved in them, it would have been fortunate, not only for the parties, but for the Union, if the court had been so organized as to induce more hesitation and forbearance, than, under its present constitution, it is capable of observing. As it is constituted at present, as I have before remarked, three out of four produces a decree, however strong the conviction of the judge who dissents, and hesitating concurrence of those who approve it, may be. On occasions so embarrassing, a tribunal so wise, so considerate, and so powerful, would like, I have no doubt, to be endowed with a stronger faculty of forbearance. In the decision of the Supreme Court upon the Occupant Laws of Kentucky, it does appear to me that greater reflection might have changed the decision. I hope I shall not be suspected of presumption when I say, with unaffected humility, that the reasoning of the Court, in bringing the compact between Virginia and Kentucky, within that clause of the constitution which secures the obligation of contracts, does not seem to me to be sound or defensible; nor can I conceive how it was possible for Kentucky to enter into a compact with Virginia, and afterwards be accepted as an equal sovereign member of the Union, by which she divested herself of rights which Virginia and other states have claimed and exercised, and which are essential attributes of state sovereignty; among them the right of legislating over her own soil. Kentucky could not enter into a compact by which she would become a member of the Union, stripped of an essential attribute of sovereignty, the right of legislating over her own soil. It is not necessary for me to defend the right of Congress to prescribe the mode of decision in the Supreme Court. There is certainly no denial of this authority, either express or implied, in the constitution; that instrument is silent as to the number of judges to be appointed, and yet Congress can fix or enlarge that number; and, considering the creative powet delegated to the legislature, in respect to that branch of the Government, there can be no room to doubt on this subject.—The modification now proposed is, moreover, so strikingly analogous to the whole cast of our system, it would seem to be required as much by theoretical reason as practical expediency. In the legislative branch of the Government the people are represented both in thair national tand federal capacities. The citizens and the sovereignties of the states concur in the composition of the Senate, they also concur in constituting the President. The Judiciary, alone, is exempt from this wise and wholesome combination of influences. The mere preponderance of opinion that is required to test the efficacy of a private bond, or vacate an individual will, destroys the validity of a whole system of state policy, and goes near to dissolve the integrity of the Union. In the decision which originates the Kentucky remonstrance, they overturn a system of laws which has grown up with our state, which are essential to our peace and prosperity, which are founded in Justice, and which has not only received the assent of our Legislature, but of our Superior Court, constituted as it was, of three en

There, indeed, a minority do govern; three out of seven lightened and able jurists. But, said Mr. M. we wage

judges prostrate a whole system of state policy

no war upon the Judiciary—we utter no intemperate

I should trespass upon the patience of the committee philippics, or ill-natured invectives, against that valua

in attempting to discuss at length the propriety of the decisions in the case of the Dartmouth College, of Olmstead and Peters, of Pennsy v nia, of the Bank of the United States against the states of Maryland and Ohio, of Cohens vs. State of Virginia, the decision upon the Occupant Laws of Kentucky, which last operates so griev

ble department of the Government—we are the advocates of such a change as we believe to be in harmony with the spirit of our free institutions, as we believe to be imperiously demanded by a regard for their stability, and as we are sure will receive the approbation of the people, and ought to meet that of the judges. We

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