Page images

and favor the navigation of the North Americans, at a period when political difficulties arose on all sides, and when favors thus granted might lead to serious inconveniences. The Colonies, not having been then recognized, could not be consideréd by her as engaged in any other than a civil War; and the three prizes in question could only be, in consequence, regarded as belonging to the British nation. The entrance of the Americans with these prizes, on which no competent tribunal had passed sentence, into a port of Norway very much frequented by vessels, could not remain a secret: and the British minister near the Court of Copenhagen, relying upon the faith of treaties, claimed their rostoration, as being the property of his Government. The affair having been thus placed on the ground of strict and rigorous justice, there was no alternative for Denmark. To refuse the demand of the British envoy, would have been to faii in the fulfilment of a positive obligation, and would have furnished a pretext for Great Britain to drag Denmark into the formidable struggle in which she was then engaged with her Colonies.” In this state of things, how could Denmark have acted otherwise? She was bound by treaty, entered into prior to the struggle between the Colo: nies and Great Britain. She had a right to fulfil it—may, she was bound to fulfil it: To prove this proposition, I read from Vattel's Law of Nations, at page 333: g “ is have said that a neutral state ought to give * no assistance to either of the parties, when under no obligations to give it. This restriction is neces“sary. We have already seen that when a sovereign furnishes the moderate succor due in virtue of a former defensive alliance, he does not become ‘ an associate in the war. He may therefore fulfil his engagement, and yet observe a strict neutrality; Of this, Europe affords frequent, instances.” Then, sir, I submit whether Denmark, in the surrender of these vessels, did anything inconsistent with her neutrality ? If, then, the positions which I have taken are tenable, (and I believe the facts sustain them,) it is totally immaterial to inquire into the value of the prizes. to o * * * The amount which, by the provisions of this bill, would go to the heirs of Paul Jones is estimated at $24,421 78; but can any one doubt that the whole $242,000 will not ultimately have to be paid? Why, sir, I am informed by the honorable member from Máine, [Mr. HAMMöNs, that he has, under the rule, laid petitions on the Clerk's desk for one or two branches of the heirs provided for by this bill, whose proportionate part will, amount to, some twenty-five or thirty thousand dollars; and that he is assured by his correspondent that he will soon forward more. What, sir, will be the principle settled by the passage of this bill? It will be “ that • the Government of the United States is responsible for the value of these prizes.” . Can we justify ourselves upon any principles of law or morality in withholding any portion of the prize money which may belong to French citizens? Why not pay the heirs of M. Chaumont, who so gen: erously volunteered to purchase, the armament for this squadron, and who has lost the whole? we may be told that the bill, confines the payment to American citizens. There is no justice in this. If the Government is bound to pay, it is bound to pay all, and not a part. And what is there to prevent them from enforcing payment:

The bill provides for “the payment to the legal rep* resentatives of John Paul Jones, and the officers, ‘seamen, and marines of the squadron under his ‘command, being citizens of the United States.” Being citizens when At the time of the capture of the prizes No. Being citizens now No. Being citizens at the time they may apply. They may be naturalized, for aught that I can see, and claim. It is not confined to natural-born citizens. So that there is nothing to prevent all parties interested from securing their several proportions. I find no fault with this. It ought to be so upon principle. If the Government have had the property, it should pay for it.

But last of all, we are told by the friends of this bill that it should pass, in order to rescue the memory of Commodore Jones from the tacit reproach under which it rests. Rescue the memory of Commodore John Paul Jones from reproach The memory of him of whom Washington, and Franklin, and Jefferson, and Adams, and Monroe, and all the great men of that age, spoke in the highest terms of commendation | Rescue the memory of him, in commemoration of whose brilliant achievements the Congress of the United States caused a gold medal to be struck and presented to Commodore Jones, under the most flattering circumstances ! Rescue the memory of him upon whom was conferred the command of the ship-of-war Ranger, which first proudly bore the American flag in triumph, and which received, on the demand of Commodore Jones, the first national salute from a foreign Government Rescue the memory of him, who captured the Serapis, under circumstances which have attracted the admiration of the world ! What American does not recollect the history of that capture? The Bon Homme Richard had been several times on fire; her eighteen-pound battery had blown up; her five hundred prisoners had been treacherously let loose; she had received several shot under water from the Alliance; the leak was gaining upon the pumps; several of the officers, in whose judgment and courage the Commodore had the greatest confidence, advised him to strike; the Bon Homme was in a sinking condition; but the Chevalier Jones would not give up the ship. I seem now to see him, standing erect amidst the carnage and ruin, and ordering, in the language of Old Rough and Ready, “a little more grape, my brave fellows l’’. Expectation is wrought up to the highest pitch; the firing of the enemy decreases; that of the Bon Homme increases. The enemy’s maintmast begins to tremble and shake; she strikes; the British flag strikes. “Scarcely had victory ‘crowned her intrepid commander, when the Bon * Homme sank on the very field of her glory.” Rescue the memory of such a man from reproach Sir, I protest, in the name of my country; I protest, in the name of the departed spirit of the Chevalier Paul Jones; I protest, in the name of his posterity, to the remotest generation, against any rescue of the memory of Commodore John Paul Jones from reproach—and, least of all, such a rescue as this bill proposes.





On motion of Mr. J. R. INGERso II, the rules were sus-
pended for the purpose of taking up the bill supplemental to
the act entitled “An act concerning the Supreme Court of
the United States,” approved June 17, 1844, and the amend-
ment moved by Mr. Bow LIN to the same.
Mr. [.. having explaimed the necessity, and urged the pas-
sage of the bill-- -
Mr. BOWLVN said it was a source of extreme
regret to him that the House had so far manifest-
ed a disposition to minister to the wishes of the
Judges of the Supreme Court in a matter of such
vital interest to the country, as to refuse to com-
mit this bill, where its merits could be fully and
fairly investigated and discussed. It only betrayed
the melancholy fact, that the judges of the court
here were stronger than the people at home, with
their direct representatives. In a contest with in-
terested parties before this House, who could be
here upon the ground urging and pressing their
own suit, for special benefits to themselves, at the
expense of the people, the constituent body had
but a poor chance for justice. The people's inter-
est was too frequently neglected when a proposition
was up to confer special benefits upon some favorite
or favorites. He said this more in sorrow than in
anger, because he was almost bound to infer from
the vote, that the House had determined to pass
the bill blind, without examination, without inves-
tigation. When such things occurred upon bills of
little importance, we submitted to the wrong, from
the insignificance of the cause; but when we beheld
bills of the most vital importance, bills indirectly
changing the whole judicial system of the country,
bills enhancing the cost of justice to the people
to a most alarming extent, attempted to be forced
through upon the first day of their appearance in the
.#ouse, and the House partially sanctioning such a
proceeding, by refusing to submit them to a scruti-
* investigation of the usual committee, it was
rite those who yet retained a respect for
nd interests of the people. If he knew
g of the measure, it was apt to excite his sus-
of its merits, when he saw that it involved
individual interests, and that it was attempted to
be forced through the House in utter disregard of
the usual forms of legislation. The very attempt
excited in him a desire to examine it in all its
bearings, and see, whilst it conferred special bene-
fits, how it operated upon the interest of the people,
for whose sole benefit courts were instituted, and
maintained out of the proceeds of their labor. It
was abhorrent to his feelings to attempt to argue a
case that seemed to be prejudged the moment it
inade its appearance in that Hall; yet, from its vast
importance, he could not be silent, injustice to him-
self or his constituency. And should it pass, with

*~ 3 -3.

onoh to gi

£riated at the Congrešiottai Globe Office,

all the popularity that the refusal to commit indi-
cated, yet would he raise his voice against it, and
record his vote, if that vote stood alone.
And he could tell gentlemen that this idea of
separating the judges from the people, and giv-
ing them a permanent residence, was not a new
one. He recognized in it an old acquaintance,
decorated in a new dress, to render it more pala-
table to our tastes. It was only an attempt to ac-
complish by indirect means what the people had
again and again repudiated when sought directly.
If gentlemen believed that the effect of this bill
would be, at the end of two years, to restore them
to the old system, he believed they greatly deceived
themselves. Such, he believed, was neither the
object or the design of the bill, but the contrary
exactly—to make a permanent resident court here,
and wholly relieve the judges from circuit duties.
The struggle to attain this point had commenced
almost with the origin of this Government; and,
though occasionally quieted, after a severe rebuke
from the people, had never been lost sight of by
those interested in the immediate results, or in the
political character of the question. Experience
had taught them, that in the character of a direct
proposition, fairly and plainly stating its objects
and purposes, it never could be carried before the
representatives of a free people; or, if carried, it
would have to abide a most disgraceful retreat. It
was, in its true nature, but a scheme to consoli-
date all the judicial powers of the Government
in a secret conclave of judges, where their mighty
powers could not be seen, and would only be felt
in the potency of their decrees. This was the po-
litical character of the measure, and, as such, it had
always received the ardent support of the advo-
cates of a strong government over the heads of

the people. The court was one of most extraordi-

mary powers, of an almost unlimited jurisdiction
alike over the rights of the people and the States
of this Confederacy; it was rendered partially irre-
sponsible by the tenure of the offices of the judges,
and they had only to add centralism, secrecy, and
permanency, to establish one despotic department
in the Government. He was not to be deceived
by appearances, nor gulled by partial measures;
all tending to a radical change in the whole system,
whilst gentlemen were amusing them with prom-
ises of mere present relief. He had read the his-
tory of former struggles upon this question; he
knew what was really wanted and desired by the
advocates of this scheme; and he looked with
great suspicion upon every attempt, by partial and
temporary measures, to approximate the original


This struggle to separate the judges from the people commenced under the Administration of the elder Adams, and had upon it the odium of the midnight judges. After a mighty struggle of the two great parties of that day to overthrow the beautiful system given to us by our ancestors, and which had descended to us unimpaired so far, the Administration party succeeded, and reorganized the whole judicial system upon the basis of the present scheme of consolidation. They carried their favorite measure: the judicial oligarchy was established upon paper over the heads of the people. What was the reception in the country of the new system of a permanent court? Almost one unanimous condemnation from Maine to Geor

gia. The people met it with one almost united outburst of indignation. of the system with the people, that though it stood a law upon the statute book for about a year, no man had the hardihood to dare to attempt to put it into operation. It stood a dead letter upon the

Such was the odiousness

The judges were, therefore, already relieved from attending upon one court in the year, and now that was followed by the proposition to relieve them from the other term for the space of two years. Do this, and your circuit court system was at an end. The Supreme Court would become a permament fixture in the metropolis, and the clamors of the people would be answered, not by restoring back the court to its legitimate duties, but by adding on a new swarm of judges to be circuit judges; without Supreme Court jurisdiction. That would be the kind of relief extended to the people, by making them pay dearly for it. And were gen" tlemen so blind as not to see, that by the indirect and gradual perfection of this system, they were brought directly to the repudiated act of 1801, with all its odious provisions? Was that House prepared to do that deed, and again provoke the indignation of the people It was in vain for gentlemen to pretend that they supported this measure, with all the lights of ex

statute book, until the season came round for its perience they had before them, as a mere tempotion, or perhaps four-sold on that score. With the man from Mississippi, near him, had just informed

repeal, when it was abolished, and the old system again reëstablished upon its ruins. In that great struggle against a central, permanent, and consolidated court, Mr. Jefferson, at the head of the Republican party of that day, stood foremost in the fight. Times had changed, but this question had undergone no change. It was the same question to-day that it was then—involving the same principles and jeopardizing the same rights. It was a question then of concentrating the rays of judicial power, so as to make it a more potent instrument of mischief to the people and the States, over whom it had the exercise of a constitutional jurisdiction. And it was precisely the same question to-day. There was no change in the question, no change in its effects upon our free institutions, though there might be a change in men professing the same political opinions of our ancestors, who overthrew the whole Federal scheme. After this signal rebuke from the people, the question was permitted to remain partially quiet for near a quarter of a century, when it was attempted to be revived and resuscitated under the Administration of the younger Adams. In 1825 and 1826, the battle was fought over again, for this permanent judiciary; and, strange to say, the Federal forces in this contest were headed by a gentleman from Virginia, (Mr. Barbour,) who claimed, he believed, affinities with the Republican ranks. It arose, at that time, upon a proposition to create new judges for the western circuits; and a substitute was offered, to establish this permament residence system for the Supreme Court. After a fierce struggle for two sessions, the whole scheme was overthrown by the decision of Congress, and another respite to the people obtained. In both these struggles, the battle was waged upon fair and open grounds, between the advocates and

opponents of a permanent court at the metropolis.

In these two celebrated efforts, it became apparent, that this, inroad upon the rights and interests of the people could never be accomplished directly; and if ever successful, must be by indirect means.

In 1844, an act was obtained relieving the judges from attendance upon more than one circuit court in a year. This was granted, because it did not apparently invade the system of circuit courts; and perhaps it occurred to but few members, that this was but the beginning of the old conflict over again.

rary measure. They might deceive themselves, but they could not deceive the people. The people would comprehend this new encroachment upon their rights and interests. He could tell them that the people were not prepared for an entire separation of the judges from those whose substance warmed them into life, and nourished and supported them. The people entertained a homely and somewhat unfashionable idea for modern times: that courts were instituted for their own benefit, and not merely for the elevation, ease, and comfort of the judges; that when they freely gave their substance to the support of the judges, they had a right to their services in such form as comported best with their interest and convenience; that it was more in accordance with the spirit of our Constitution, that the richly-salaried judge should

travel to the people to dispense justice cheap, than

that the whole body of the people should have to travel to him, to receive it at am enormous expense. It was neither wise nor politic, nor did it comport. with the spirit of our republican institutions, to create a kind of judicial oligarchy, elevated so high, and centralized so permanently, that they could neither reach them nor behold them, and only feel them in their despotic decrees. Whilst these good old-fashioned opinions obtained with the people and their representatives, the system which brought the judges to the people to dispense justice was safe, and he believed would still be safe, against any direct proposition to separate them forever from the States and the people, and centralize them in the metropolis, By this indirect means the people might be lulled into a false security, and deceived, until you had fastened this exploded and condemned system upon them; but when the last act of the drama was performed, the scheme fully developed, the whole plan matured, then they would awake to a sense of their duty, and give it such another reception as they gave it in 1801–-by one universal burst of condemnati Oñ. He treated this measure precisely as if it proposed directly a perpetual separation of the judges from the States and the people, and an abandonment of the circuit courts forever. It was in vain for gentlemen to assume to him that it was anything else than a measure (whether designed or not) that was to work a perpetual separation of the judges from their circuits. Pass this bill as reported from the Judiciary Committee, and he hazarded but little in the assertion, that in ten years the people would scarcely know that the system of circuit courts had ever existed. Its temporary character is merely given to it for the sake of o for the purposes of hoodwinking this ouse and the country, and securing the passage of the bill. Who seeks this change The people had not demanded it. There were no petitions from them asking for a dearer and less efficient administration of justice for the convenience of the judges. The press—the representative of popular sentiment—had not clamored for the change. Who, then, wanted it? The judges, and the judges alone, to escape from the labors of their circuit duties. And did gentlemen suppose they could make this House believe that the judges were so regardless of their ease as to want this change merely temporarily, and strictly for the causes assigned Did gentlemen suppose we gained nothing from the lights of past experience? A few years ago, a releasement from the labors of one term, upon the very identical pretext which was this day set Rap for the releasement from the other term, had been secured by this system of favoritism and partial legislation. They were released to bring up the docket. That was the pretence. Had it been done? or had any good resulted from the grant of that exemption ? Let facts speak. When they were first released from the performance of circuit duties, under the pretence of an encumbered docket, it was ninety-odd cases in arrear. They were released to bring up this arrearage. And what was the result: After three years and a half practice under the first exemption, they had gottes their docket more than two hundred cases in arrear. These were practical results from a partial adoption of the system: what was to be the result from a full and complete adoption of it? To double the arrearages again in the next five years; and, instead of being as now, two hundred behind, the docket would be four or five hundred behind. That this would be the natural and inevitable result of the passage of the bill of the committee, he believed he would be fully able to demonstrate when he came to that branch of the subject. In view of the former exemption and the practical results under it, and the continual pressure of this new exemption, who could doubt of the design to render this separation perpetual And he conjured members to look at it solely in that light, as the only true one in which to view it, and not suffer themselves to be deceived by false appearances. Pass the committee bill, and they would take their last view of the circuit system. A natural consequence in the adoption of this system would be to reduce the amount upon which an appeal or writ of error might be prosecuted from the district court to the Supreme Court. This must be done, as a natural and inevitable consequence of the new system. That simple fact, and the lessening of the confidence in the court at nisi prius, by removing one of its main pillars from it, would of itself greatly augment the number of appeals. Suppose it was reduced to five hundred dollars in mere money suits, and confined only to sums above that amount and to questions of constitutional construction, the increased number of appeals would just be in proportion to the reduc

circuit system, we could very justly confine and limit appeals to the more important cases, as the two judges combined constituted an able tribunal; but when we removed the principal judge, and made the suitor rely upon the subordinate, we could not do less than secure him a remedy àgainst error by an almost unlimited right of appeal. This must be a part of the system upon which the destruction of the circuit courts was based, otherwise the grossest injustice would be worked. And so gentlemen flattered themselves that that would not greatly increase the number of appeals 2 . He entertained no doubt it would double, treble, and perhaps quadruple the appeals from that single Cölü Sé. But, again: would not the lessened confidence in the court be apt to augment the number of appeals also Would suitors be as likely to acquiesce in the decisions of an inferior tribunal as they would in a superior one * Without any disparagement to the district judges, they could not shut their eyes to the fact, that they were so constituted and so paid as not always to command the best order of talents at the bar. Upon the contrary, the circuit judge, from salary and from range of appointment, could command the first judicial talents of the country. And when he was withdrawn, a large portion of public confidence in the decisions of the court would be withdrawn with him. No one could doubt this who would not voluntarily shut his eyes to all the force of reason and all the lights of experience. Every district court held for the circuit would be sending up its hosts of appeals, and multiplying them just in proportion as they deemed the ability of the bench was lessened by the separation. The enormous increase of appeals from these causes no man could estimate, and of course it must be a matter of speculation; but no one could doubt they would be wonderfully augmented. But in this matter they were not left wholly to conjecture. The honorable chairman of the committee had, in his speech just delivered, furnished them statements relative to the docket, from which they might infer the probable operation of the system. The honorable chairman had told them that Mississippi presented the largest calendar on the docket; and next to her Louisiana; and the two together furnishing nearly one-third of the whole docket; whilst the populous State of New York was comparatively small. He thanked the gentleman for the information, for it sustained his (Mr. B.’s) position exactly. Mississippi furnished the largest docket of appeals, and yet she was a small State in population. Why was this so : He could tell the gentleman: it was because the circuit judge rarely ever attended upon that branch of the circuit, and the whole matter was left solely in the hands of the district judge. Mr. GAYLE, of Alabama, here interposed, and excused the failure, on account of the indisposition

[blocks in formation]

of appeals on the present docket of any State in the Union, and was the least attended State in the Union by the circuit judge. An honorable gentle:

« ՆախորդըՇարունակել »