FEB. 10, 1825.]

On the Judiciary.

of state-sovereignty, I discover more propriety and more security in augmenting the number of the Judges, and committing to them the discharge of circuit duties, by means of which they mingle with those whom they serve, and learn the manners, habits, and feelings of the people, and acquire, to an enlarged extent, the peculiar policy of the several states, their laws and local institutions, than in any other arrangement. I have lately perceived, more sensibly than ever, the force of this consideration. The state from which I have the honor of appearing as a representative, has become a subject of animadversion with some enlightened individuals, with whom I have conversed, who are yet almost totally ignorant of facts in relation to ourselves. Of the details of the history of our country they appear to know nothing; and yet, influenced by vague rumor, they have entertained unjust, unpardonable impressions, which nothing but a sound knowledge of the nature and transactions of our local policy, a policy which has for several years agitated our people, can destroy.

No sentiment in morals or in politics is more universally correct than that we were never more usefully employed, than when employed in the imperious duties which concern ourselves, leaving to others their own concerns. In this discussion we are unavoidably impressed with the extent of the judicial power of the United States. A line inserted in our Constitution, perhaps at the instance of a single individual, which, at the time of its formation, was introduced without attaching to it any importance, has given to the Federal Judiciary the power of controlling the sovereignty of the states, just in the same manner as individuals, co-partnerships, town-corporations, or any similar legal associations, are controlled. The line which I refer to, contains indeed an abstract truth which should be confided to the states. It states that contracts shall not be impaired. Who would have conjectured that so simple a position should have created so alarming an authority? Whilst we have settled most of the great fundamental principles of our free and happy governments, whether state or federal, the words to which I allude have been the wand of the magician in the hands of the General Government. It has put every element into motion No two persons can agree as to its meaning. Former judicial decisions have been disregarded, doctrines consecrated by the march of time, and by the sober suggestions of reason, have, by this new principle found in the Constitution, been wholly overturned. It has agitated the states, and brought into collision all the Departments of Government. At the novel doctrine, the people have been alarmed, society convulsed, and inquiry receives no satisfaction when she asks what means this line in the Constitution of the United States. Not content with the peace, the happiness, the liberty which we enjoy, we are by nature so belligerant that we are always searching after some new occasion for contention. We have found the source of construction construed in these cabalistic, these unfortunate words of the Constitution--that no state shall impair the obligation of conThis has laid a broad foundation for judicial construction, that, according to the views of the judiciary, it is in the power of the tribunals of the country, to arraign, prostrate, and annul, not only a single law, but whole systems of laws, not laws of yesterday, but laws sanctioned by experience, consecrated by all the departments of state legislation, and acquiesced in by all good citizens. Witness its unhappy decision which abrogated the occupying claimant laws of Kentucky; laws which had existed in full force and virtue for a term of twenty-five years. I am informed, sir, that questions are impending before the Supreme Court, which involves the constitutionality of almost every law of our state which has been passed during the last four or five years. The act which has abolished imprisonment for debt has not been excluded, an act, which, while time exists, will stand VOL. I.-34

tracts.

[Senate.

an imperishable monument of the fame of those who passed it.

If the Federal Constitution had contained the abstract proposition, that the states shall do no wrong, and it were the opinion of the Judges that such a declaration has vested them with power to abrogate laws and pronounce them unconstitutional, because the law was not wise or expedient, we cannot conceive of a much greater calamity arising from such a state of things than that which has already sprung up, and is likely to spread its destructive waters on every side, from the words to which we allude. Both kind of expressions leave, or rather present to the mind a field of speculation and of construction, alarming to every heart that beats with the love of liberty. The exercise of undefined power always terminates in tyranny. In both cases the Judges would be left to their own conceptions as to what would be wrong under one set of words, and what would impair the obligation of contracts, as composing the other. The ocean of uncertainty is here presented, and we are launched upon it without compass, rudder, or pole-star. I fear, from the examples we have had of the fluctuating opinions of Judges and jurists on the words in question, that to fix definite limits to their precise import, will be as difficult and dangerous as if right and wrong were to be determined, not by a man's own conscience, but by a bench of administrators of public law.

It is no question with me, in this discussion, whether the people in the exercise of their legitimate power have erred or not. I contend they have a r ght to err, without any responsibility excepting to the suggestions of conscience, and the throne of Heaven. But no agent or Department of our Government is independent. All public officers are the offspring of the people, and accountable to them. Search the historical records of Greece, of Rome, and of England, three great powers, which at certain periods of their history, have enjoyed a high degree of liberty, and you will find no safety, no curb to despotic aims, no restraint to tyranny, but on the principle that the authority of all officers of Government is subject to the will of the people. Their responsibility ought ever to be visible, tangible, controllable. I care not what the patriotism, what the virtue, what the talents of particular individuals may be found, no body of men ever has existed, or ever will exist, who have not forged or are forging chains, who have not dug or are not digging out dungeons, for the fair form of Liberty, that are not responsible to the will of the people. In a Government such as ours, we must not contemplate the people as a "swinish" multitude. They are entitled to confidence; they are to be regarded as a nation virtuous, high-minded, desirous of doing right, lovers of freedom, jealous of their privileges; a people who, in defence of their rights, are prepared to jeopardize their lives, their fortunes, and their sacred honor: such should be our estimates. It is preposterous, it is unavailing, to pretend that the people cannot be trusted; sir, they can be trusted, while no other body can. I do not contend that they are perfect, either as indivi duals, or as a body aggregate; but, I do affirm that they have a higher claim to respect than any Public Officer, or any Public Department. This is the theory of our Constitution, and with it our practice ought to coincide.

Impressed with these sentiments, I proceed to say a few words on our judicial tenure. At this time, a general progress of improvement in science and literature is manifest. No science has received more light, none has been brought more fully to the ordeal of sober investigation, than the science of Government. Liberal principles are increasingly known and welcomed by the whole of the civilized world. Nothing but swords and spears, which, I am confident, are destined to become plough-shares and pruning-hooks, obstruct their universal diffusion and triumph. In these United States, the just sentiments of liberty are known more universally,

FEB. 10, 1825.]

On the Judiciary.

[Senate.

urged the necessity of carefully considering the subject, in all its bearings, before coming to a decision; for, on this decision would depend the character of the judicial system of the United States for years to come, perhaps forever. He was duly sensible of the claims these states had upon Congress, and the necessity of some provision being made for them, but suggested whether it would not be more advantageous to defer the subject till the commencement of the next session, as there would be so little probability of its passing through in the present, from the very short time that remained.

tone to public sentimer.t, and diffuses that moral strength be extended to these states, by appointing additional which gives nerve to physical energy. So far as pro-judges; or, that the system should be changed. He perty is in question, there prevails a firm, a deep-rooted confidence, fixed in every bosom, in reference to the opinion of the Courts. My object is to place on a firm basis a like confidence, where any judicial question may involve the sovereignty of the states. This bill will accelerate the accomplishment of this most desirable object. It would be a waste of time to offer remarks relative to the expense of extending the system as now proposed. No branch of Government is more vitally, more essentially important, than the administration of justice. The rights of personal liberty, the rights of private property, are involved. It is the repeller of persecution, the shield to innocence. The revenue of the nation amounts, annually, to upwards of twenty millions of dollars of this revenue we annually appropriate less than one hundred thousand dollars to the administration of justice, inclusive of contingent expenses, while million after million for other objects are expended. The appropriation for diplomatic intercourse with foreign powers constitutes a larger amount. It is presumed that no objection will be made by any, as to the small additional expense, which secures to the West equal judicial representation in the Supreme Court of the Union, which secures to us equal advantages.

Mr. KELLY moved the following amendment, which was agreed to:

"And all suits at law, and in chancery, and all criminal prosecutions, pending in the district courts, at the passage of this act, and not exclusively cognizable in the district courts, by the laws of the United States, shall be transferred for trial to the circuit courts herein established, for the respective districts in which said suits and prosecutions shall be pending; and the clerk of the said district courts shall transmit the original papers, together with a transcript of the orders and proceedings, had in the said causes and prosecutions, respectively, to the clerk of said circuit court."

Mr. TALBOT, of Kentucky, was against the postponement, on the ground, that it had been before the House the whole of the session, and every gentleman wishing to take part in the discussion, had had full time to prepare his arguments. The Senate, he imagined, must be fully aware of the deep interest existing in the Western States on this subject. They had been denied the privilege enjoyed by every state in the Union. This bill had been thoroughly examined by the Judiciary Committee, and amendments had been made, and now a postponement was proposed. He thought they ought not to shrink from an important discussion, because the time was short, and expressed his hopes that the affair would now be settled, or at least make some progress.

Mr. HOLMES, of Maine, offered a few remarks, expressing his opinion that the present system operated to the delay of justice in the Western states, and that some measures for the ir relief ought to be decided on.

Mr. BARBOUR offered his views on the subject at considerable length, and dwelt with much force on its importance, and expressed his conviction that the delay might be productive of some inconveniences, yet they would be nothing to the injury that might be occasioned by acting without great deliberation. A Judge of the Supreme Court could not be unmade, because that court was established by the constitution itself. Mr. B. Mr. KELLY observed, there were a class of cases, expressed the high interest he took in the prosperity of those involving a sum, beneath $2,000, from the deci- the Western states. He allowed the justice of their sion of which there was no appeal. The great object claims on the present occasion, and thought the only dif was to do justice, and then to do it in as satisfactory a ficulty with Congress would be, what would be the mea manner as possible. There were cases of the descrip- sures which could be adopted to respond most advantation he had mentioned, in which the parties thought in-geously to those claims. There was, Mr. B. said, a justice had been done them, and it was a matter of importance to allow them a writ of error or appeal to the circuit court.

He had prepared an amendment to provide for that class of cases, which he then offered, but subsequently withdrew It was as follows.

Sec.. Be it enacted, That any sentence, judgment, or decree, that shall have been rendered in any of the said district courts, at the passage of this act, which could have been revised by appeal, or writ of error, in the circuit courts herein established, if said courts had been in existence at the rendition of said judgment, sentence, or decree, may, in like manner, be revised, in the said circuit courts, provided the same shall be carried up for that purpose, within twelve months from the passage of this act; and it shall be the duty of the clerks of the said district courts, on the application of the party aggrieved, by himself or counsel, to allow an appeal or writ of error, at the option of the applicant, and send up a certified copy of the record, as required by law in similar cases; and, if bond and good security be given for the prosecution of said appeal, or writ of error, (which the clerk of said district court is hereby authorized to take,) the same shall operate as a supersedeas; but if no such bond be given, the execution of the judgment shall not be suspended thereby

Mr. VAN BUREN agreed that something ought to be done, and they must adopt one of two courses; either the present system, as a system, should be retained, and

great difference of opinion on this subject. He had maturely considered it, and had come to the conclusion that it was necessary to have the Supreme Court separated from the Circuit Court. By the present system, the Judges of the Supreme Court were required to per form circuit duties which were impracticable. Theory and practice had proved that none but men of the highest reputation and long experience should occupy the Supreme Bench; and was it reasonable to suppose that an old man could perform the duties of a Judge in the supreme Court, and then sustain the fatigues of travelling through the country as a Circuit Judge?

Mr. B. then detailed, at some length, the advantages which would arise from giving up the District Court system, and converting these Judges into Judges of the Circuit Courts. The Supreme Court, by being inde pendent, would have full time to deliberate on the im portant causes which necessarily came before them, without subjecting them to that which he thought was impossible. He did not think the expense was worthy of consideration. Let there be a good judicial system formed, in coincidence with the exiency of the occasion, so as to satisfy every part of the Union, that their interests had been foreseen and provided for, and he cared not for the dollars and cents involved in such a course. Mr. BARBOUR then submitted the following resolution.

Resolved, That the bill be recommitted to the Judiciary Committee, with instructions to amend the bill so

Sen. & H. of R.]

On the Judiciary.-The Creek Treaty of 1804.

as to exempt the Judges of the Supreme Court from performing circuit duties, and to increase the number of Circuit Judges.

Mr. JOHNSON, of Ken. again addressed the House in favor of the ten Judges, and earnestly hoped that, as they had justice on their side, no further opposition would be made the progress of the bill.

[FEB. 10, 1825.

tion to the recommitment of the bill, but he had objections to the latter part of the resolution. If the proposition were divided, then the sense of the Senate would be tried by a comparison between the bill proposed and any other that might be substituted. If the latter should be the case, then he should take an opportunity to submit a plan to the Senate, which he thought preferable Mr. HOLMES, of Maine, expressed his fears that, if to that of his colleague-which was, that the committee the Supreme Court were located within the District of to whom the bill should be recommitted, should be inColumbia, they would become more national. At pre- structed to report a bill providing for a number of Cirsent, they mingled with the people, they understand cuit Courts in the Western country, as many as their nethe laws of the state in which they lived, at least, and cessities might require, and to appoint a number of were they to locate in the District, that connection judges for these courts, which judges should not be would be liable to be broken, and they would be wean-judges of the supreme Court. He would make another ed from that affection for the state government they had proposition on the subject: when a vacancy should ochitherto had. He thought they were national enough cur on the bench of the Supreme Court, as it now exists, already, and therefore objected to their being introdu- then the vacancy might be filled by the new made Circed into the District. cuit Judges in the Western country, and the circuit sys tem should be introduced into the Eastern country. This, Mr. T. said, he should sustain, if he had an oppor

Mr. H. expressed his views at some length on this subject, and the interest it might have in inducing them to favor the National Government; and, after some furtunity so to do. ther observations on the tendency of the present bill, concluded by observing, that, of the two schemes proposed, this was the best, with all its imperfections, and would not radically alter the present judicial system.

Mr. JOHNSON, of Kentucky, hoped no further steps would be taken, till the gentleman from Virginia should have delivered his views on the subject, and moved that the Senate adjourn.

The Senate then adjourned.

HOUSE OF REPRESENTATIVES-SAME DAY. Mr. JENNINGS, of Indiana, submitted the following: Resolved, That the Committee of Ways and Means be instructed to inquire into the expediency of releasing by law all claim which the United States have upon Maston S. Clarke, of the state of Indiana, as one of the securities of the late Collector of the Internal Revenue of the late territory of Indiana."

Mr BARBOUR again rose, and entered into an argument to show the superiority of his plan, as it tended to produce equality throughout the Union, and contended that his friendship for the people of the West was sufficiently evident, from his having proposed a system which would tend to improve their condition more than that proposed by themselves. He again argued on the impossibility of men, advanced in years, being able to undertake a journey of two or three thousand miles; and as proof of the inconveniences attending the present system in the West, adverted to the fact that had been stated, that there were 900 cases on one docket in Kentucky, and exhibited a striking view of the evils that must ne-dual referred to in the resolution he had presented, cessarily be produced by this delay, in the administration of justice, where these judges were obliged to travel with such haste, and preside in so many places. The decisions they pronounced were without confidence, and produced a stream of litigation which concentred in Washington, and thus the docket of the Supreme Court was continually accumulating.

In offering this resolve, Mr. J. said, that the indivi

by the operation of law, stripped of all his property,
both real and personal, not leaving to him so much as
the sword he had honored, or his tomahawk and scalp-
ing knife, which had been his constant companions as a
private soldier. He hoped the resolution would be
adopted.
The resolve was agreed to.

was allied to one of the most numerous and useful families in the Western Country. That he had been one of the early pioneers of the Western frontier, participated in most of the conflicts produced by the wars with the Indians, and had acted a conspicuous part in the battle of Tippecanoe, as well as on other similar occasions; and who, by his perseverance and enterprize, had posMr. B. then referred to the fact that, in Virginia, their sessed himself of a comfortable competency for his nu Supreme Court was occupied the whole year round in merous and rising family. This, said Mr. J. was his sitdeciding cases, and inquired how it could be possible uation when he became one of the securities of a late that the Supreme Court, which sat for a few weeks only, Collector of the Internal Revenue of the late Territory could possibly dispose of all their business, consisting of Indiana who has since, by a decision of the District generally of causes of a most important character, and Court, been found a delinquent to a considerable amount urged this as one of the most striking proofs of the ne--the result of which has been, that Col. Clark has been, cessity of exempting the judges from circuit duty, so that the stream of justice might not become clogged. Mr. B. then answered, at considerable length, the se. veral objections of the gentleman from Maine, (Mr. HOLMES.) He did not, he said, propose to locate them in the District-he was indifferent where they resided, so they performed their duty-but, supposing that he had proposed so to locate them, he said he was ignorant of the wonderful power of the air of Washington, and appealed to the gentleman himself, (Mr. H.) as to the effects he experienced from it. He thought there was no danger of their being biased in their decisions. They had passed the fiery ordeal of forty years' expogure to the eyes of the country; they were invested with their power by the Supreme Magistrate; and must receive the sanction of this body-the guardians of the state; they had not only the character they had previously acquired, to maintain, but the solemn injunctions of their high office to support; they were exempt, as far as men could be, from the little passions of the day, and yet these were the men who were to be tainted by the air of Washington; this was an idle fear.

Mr. TAZEWELL, of Virginia, said he had no objec

THE CREEK TREATY OF 1804.

On motion of Mr. M'LANE, of Delaware, the House proceeded to consider the bill "making further appropriation for the military service for the year 1825."

Mr. FORSYTH, of Georgia, moved to recommit the bill to the Committee of Ways and Means, with instructions to strike out the appropriation of $20,000, for the arrearages due under the treaty with the Cherokees, of 1804, and ratified in 1824, and also the appropriation of $1000, for the annuity under the same treaty for the present year. Mr. F. remarked that he had the honor to call the attention of the House, at an early period of the present session, to the subject now before it, by a resolution calling on the President of the United States for information respecting this treaty. The information

FEB. 10, 1825.]

The Creek Treaty of 1804.

[H. of R.

was received on the 27th December, and was referred our Indian agent been searched? And if any accito the Committee of Ways and Means. The treaty, dent has happened to destroy this, why are not his though made in 1804, was not touched for twenty years, private papers referred to? It is manifest, from the face and was not ratified until both the Commissioners who of the papers, that Mr. Jefferson has no distinct recolmade it were dead, and all knowledge of the transac-lection on the subject, and has been deceived by the aption lost at Washington. In 1824, the Cherokees came plications made to him. The letter from that illustrious to the Government and claimed the ratification of the man is written under the supposition that he has comtreaty. The Senate had the subject for some time un-mitted an error, and it is such as might, under that supder consideration, and at length concluded to ratify it, position, be expected from him. He has been unjust to on the ground that its not having been ratified at an ear- himself; and one part of the anxiety which I feel, arises lier period, was wholly owing to accident. He should from a desire that this injustice may not be done to him. now ask leave to call the attention of the House to the If he had duly reflected on the price which this treaty documents received from the Executive Department, engages to give for the land, he would at once have perfrom which he hoped to shew that the ratification of the ceived that there was good reason why the treaty was treaty had not been accidentally omitted, but that it was not ratified but forgetting this, he supposes that the the duty of the President to refuse to ratify it; that the non-ratification was the effect of mere accident and incircumstances of the case had so greatly changed since advertency. The reasons of this supposition he states 1804, that the ratification of this treaty, in 1824, was in to be, first, that he can find no letter addressed to him fact a fraud-the land having been already, by a previ- on the subject, although he has kept an accurate list of ous treaty, transferred to the United States. It appears all the letters received and written by him for many that instructions were given in 1804, to Return J. Meigs years; and the second is, that he perceives, from a list and D. Smith, to enter into a treaty with the Cherokee of papers presented to the Senate, that this treaty was Indians; they went accordingly to the Cherokee coun- never laid before them. try and made a treaty, by which a tract of land four miles Now, sir, the conclusion of Mr. Jefferson, from both in width and twenty-four miles in length, containing these reasons, is certainly erroneous; for, in the first about sixty-three thousand acres, was ceded to the Unit- place, the treaty itself was never sent to him. The whole ed States on condition that the Cherokees were to re-intercourse was with the War Department. Nor was ceive $5,000 in cash and an annuity of $ 1,000, which at any letter likely to be written to him on the subject, infive per cent. was equal to $20,000. So that the land asmuch as it is extremely probable that, at the time of cost the United States near forty cents an acre. Now, the making of the treaty, he was in Washington, and it he would refer to all previous treaties, and indeed to all was not laid before the Senate, because he refused to treaties ever made by this Government with Indian tribes, do so. He could not in fact have done so, in consistency to shew, that by no other treaty was the land ever pur- with his duty. Five thousand dollars had already been chased of them at a rate exceeding seven cents the acre. paid, which alone was as high a price as had ever been He took it for granted, that in 1804, this treaty had been given for the cession of Indian lands; and the course presented to the President; but that officer, perceiving which the President probably took, was to notify the Inthat five or six times the usual price had been given for dians, that, if they were satisfied with this sum, they the land, refused to ratify the treaty. It certainly was might retain it, but, if not, the United States would give his duty so to do. He thought that the testimony of the up the land, and they must return the money. Cherokees themselves went far to shew that this was the fact. In their application of the 19th of January, 1824, to have the treaty ratified, they say that the reasons why it was not, were "not fairly known to them."-Not fair ly known! It appears then that some reasons were given. But, if there could be any doubt of this, it is effectually removed by the concluding passage of their application, in which they hope that "their Great Father will reconsider the subject." This amounts to a declaration, that he had considered the treaty, and had refused to ratify it, and they now asked him to reconsider it. He had another reason for believing that the treaty could not have been ratified in 1804. This tract, well known in Georgia by the name of Wafford Settlement, had been settled by citizens, who claimed under grants from the state, made on the basis of a treaty between the state and the Cherokees, before the adoption of the Federal Constitution. Mr. F. here quoted the 3d article of a 'reaty made at Augusta, in 1783; and from which he argued that this settlement lay within the bounds of Georgia, at the date of the constitution. These grants had been judicially investigated and sustained by the courts of the state. The question, therefore, for the President to decide, was, whether, for the sake of correcting an error in a subsequent treaty, he should give $25,000 for land, which, in fact, belonged to Georgia in 1783; whether he should pay an enormous and unprecedented price to the Cherokees, for what did not, in fact, belong to them. No evidence had been received from the Executive Department, to show in what manner this transaction took place. We are told that the Government has appealed for information to the recollections of Mr Jefferson. Sir, is this a source from whence documentary evidence is to be drawn? Are we to go to the recollection of a former venerable chief magistrate, illustrious as he may be? Why has not the correspondence with

Colonel Meigs, who then presided over the Cherokees, and was the agent of the United States, for that nation, was a man of the purest character; the annuity for that tribe must have passed through his hands, and it would have been his duty to call upon the Government every year for the annuity stipulated in this treaty, if he or that nation had understood it to be binding on the U. States. He never has done so, nor has the subject been touched while this virtuous citizen lived. To my mind, said Mr. FORSYTH, this is, of itself, sufficient evidence; for I am morally certain that that man would have called on the President to perform the engagement, if he had understood the President to be bound. But this subject presents itself before us in another, and a graver form. The President of the United States has conceived him. self at liberty to refer to an illustrious individual, now retired from office, to know whether he did, or did not, submit this treaty to the Senate, and whether it was, or was not, ratified.

Sir, I ask this House whether such a power resides in the President of the United States? Whether he can place, on the vague recollection of a former President, the propriety of ratifying a treaty which is to bind the nation? On whom does the responsibility of treaties now rest? On him who is now President, or on the person who was President in 1804? The Cherokees now come and ask him to reconsider the determination of his predecessor, with respect to this treaty; any arrangement which would justify the President of the United States in doing so, would justify him in laying before the Senate any treaty that had been rejected by lis predecessor. This, however, is somewhat foreign to the subject immediately before us Let us now look at the contract made by a treaty with the Cherokees in 1817, and completed in 1819. By this a large territory is ceded to the U. S. much larger than that for which this appropriation