Resolved, That a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and Vice President of the United States, and for determining the legality or illegality of the votes given for those officers in the different States: A motion was made to amend the motion by adding, “and that the committee be authorized to report by bill or otherwise." SENATE. a citizen of the United States, &c. The proceedings in the election of a President may be defective in all these particulars, and can it be supposed that there is no way to correct them? The Constitution is not silent on this head; among the powers given to Congress in the 5th section is this, "to pass all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government Mr. BROWN, of Kentucky, was of opinion that of the United States, or in any department or offithis was a subject on which Congress had no right cer thereof." The law now proposed appears to to legislate. When the Constitution undertook to be necessary to carry into effect the power of apmake provisions on a subject, if they were found in-pointing the President; it is therefore clearly Concomplete, or defective, they must be remedied by stitutional. recommending an amendment to the Constitu- Mr. LIVERMORE, of New Hampshire, never felt tion. He wished the gentleman who had made less doubt on any subject than the one now under this motion would pay further attention to the sub-consideration: the Constitution has given many diject, and believed he would find that if anything was to be done it must be done by proposing an amendment to the Constitution. Mr. Ross said, that the Constitution had certainly made no provision on this subject. It only directed that after the votes were received, &c., the President of the Senate should, in the presence of the Senate and of the House of Representatives, open the certificates, and the votes should be counted. Suppose, said he, persons should claim to be Electors, who had never been properly appointed, should their vote be received? Suppose they should vote for a person to be President who had not the age required by the Constitution, or who had not been long enough a citizen of the United States, or for two persons who were both citizens of the same State-such cases might happen and were very likely to happen, and is there no remedy? What a situation would the country be in if such a case was to happen! He thought it their duty to make provision for it, and he believed a law was sufficient. Mr. C. PINCKNEY, of South Carolina, thought it a very dangerous practice to endeavour to amend the Constitution by making laws for the purpose. The Constitution was a sacred deposite, put into their hands; they ought to take great care not to violate or destroy the essential provisions made by that instrument. He remembered very well that in the Federal Convention great care was used to provide for the election of the President of the United States, independently of Congress; to take the business as far as possible out of their hands. The votes are to be given by Electors appointed for that express purpose, the Electors are to be appointed by each State, and the whole direction as to the manner of their appointment is given to the State Legislatures. Nothing was more clear to him than that Congress had no right to meddle with it at all; as the whole was entrusted to the State Legislatures, they must make provision for all questions arising on the occasion. Mr. DEXTER, of Massachusetts, did not feel himself at all in doubt as to the right of the Legislature to make such provisions on this subject as appeared to be necessary. It was directed by the Constitution that a President should be appointed, that he should be of not less than thirty-five years of age, that he should have been at least fourteen years rections as to the appointment of the President, some of which he read. Is it possible (said Mr. L.) that gentlemen can suppose all these may be violated and disregarded, and yet that it is nobody's business to interpose, and make provision to prevent it? He trusted the honorable Senate would agree to the resolution to appoint a committee for that purpose. Mr. BALDWIN, of Georgia, expressed his regret that the mover of this resolution had not thought proper to bring forward a subject so new and important, in the form commonly used in parliamentary assemblies, by a single proposition, viz: "that it is expedient that further provision be made respecting disputed votes for President and Vice President of the United States." It was manifest from the debate that several different questions had been under consideration at the same time, and different gentleman were in fact directing their remarks to different questions. The first question was, the one he had just mentioned, whether there was so great a defect in the present provisions, which exist on this subject, as to render further provisions necessary? The second is, if further provisions are necessary, must they be made by amendment to the Constitution? or, Thirdly, whether they can be made by law? He must say, for himself, that he did not agree that the present provisions on this subject were so defective and absurd as had been represented. His general respect for those who had gone before him in this House, and especially for the venerable assembly of the most experienced statesmen of the country by whom the Constitution had been formed, forbade him to entertain the belief that this subject, which is the strong feature that characterizes this as an Elective Government, could have been till now so entirely out of sight and neglected. Gentlemen appeared to him, from their observations, to forget that the Constitution in directing Electors to be appointed throughout the United States equal to the whole number of the Senators and Representatives in Congress, for the express purpose of entrusting this Constitutional branch of power to them, had provided for the existence of as respectable a body as Congress, and in whom the Constitution on this business has more confidence than in Congress. Experience had proved that a more venerable selection of characters could not be made in this country than usually composed that electoral body. And what are the questions which can arise on the subject entrusted to them to which they are incompetent, or to which Congress is so much more competent? The questions which present themselves seem to be: 1. Those which relate to the elections, returns, and qualifications, of their own members. Shall these be taken away from that body, and submitted to the superior decision and control of Congress, without a particle of authority for it from the Constitution? JANUARY, 1800. them any more to the control of the other departments of the Government. He observed further, on the other points to which gentlemen had spoken, that if such radical and important changes were to be made on this subject, as seemed to be in contemplation under this resolution, he thought they must be made by proposing an amendment to the Constitution to that effect; and that they could not be made by law, without violating the Constitution. He did not agree with the gentleman from Massachusetts, (Mr. DEXTER,) that the clause at the close of the 8th section of the Constitution, which gives to Congress power 2. The legality or constitutionality of the dif-effect the foregoing powers of that section, and all to pass all laws necessary and proper to carry into ferent steps of their own proceedings, as, whether other powers vested by the Constitution in the they vote for two persons both of the same State; Government of the United States, or in any dewhether they receive votes for a person under thirty-five years of age, or one who has not been fourteen years a citizen of the United States &c. It is true they, as well as any other Constitutional branch of this Government acting under that instrument, may be guilty of taking unconstitutional or corrupt steps, but they do it at their peril. Suppose either of the other branches of the Government, the Executive, or the Judiciary, or even Congress, should be guilty of taking steps which are unconstitutional, to whom is it submitted, or who has control over it, except by impeachment? The Constitution seems to have equal confidence in all the branches on their own proper ground, and for either to arrogate superiority, or a claim to greater confidence, shows them in particular to be unworthy of it, as it is in itself directly unconstitutional partment or officer thereof, could be extended to this case; that speaks of the use of the powers vested by the Constitution-this resolution relates to the formation of a competent and essential part of the Government itself: that speaks of the movethis relates to the organization of the Executive ments of the Government after it is organized; branch, and is therefore clearly a Constitutional work, and to be done, if at all, in the manner pointcle of amendment to the Constitution on that subed out by the Constitution, by proposing an artiject. His own opinion, however, was, what he had before stated, that the provisions on this subject had been suggested were as safely left to the dewere already sufficient; that all the questions which cision of the assemblies of Electors, as of any body of men that could be devised; and that the members of the Senate and of the House of Represen3. The authentication of their own acts. This tatives, when met together in one room, should would seem to be as complete in them, as in either receive the act of the Electors as they would the of the other branches of the Government. Their act of any other Constitutional branch of the Govown authentication of their act finishes the bu-ernment, to judge only of its authentication, and siness entrusted to them. It is true this must be then to proceed to count the votes, as directed in judged of by the persons who are concerned in the second article of the Constitution. carrying it into execution; as in all laws and official acts under this Government, they to whom they are directed, and who are to be bound by them, must judge, and judge at their peril, whether they are duly authenticated or whether they are only a forgery. The further consideration of the subject was postponed. FRIDAY, January 24. Ordered, That they be printed for the use of the Senate. Mr. GOODHUE. from the committee to whom was If this be the just view of the subject, (and he recommitted the bill, sent from the House of Repcould see no other which did not involve inextri-resentatives, entitled "An act providing for salcable difficulties,) it leaves no possible question for vage in cases of recapture," reported further amend'the Senators and Representatives, when met to- ments. gether to count the votes agreeably to the Constitution, but to judge of the authentication of the act of the Electors, and then to proceed and count the votes as directed. If this body of the Electors A message from the House of Representatives of all the States had been directed by the Consti-informed the Senate that the House have passed tution to assemble in one place, instead of being a bill, entitled "An act to suspend in part an act, formed into different Electoral colleges, he took it for granted none of the questions on which this resolution has been brought forward, would have occurred; every one would have acknowledged that they were to be settled in that assembly. It having been deemed more safe by the Constitution to form them into different Electoral colleges, to be assembled in the several States, does not at all alter the nature or distinctness of their powers, or subject entitled 'An act to augment the Army of the United States, and for other purposes," also, a "Resolution authorizing and directing the Secretary of State to procure and transmit to the Governor of North Carolina a number of copies of the laws of the United States;" in which bill and resolution they desire the concurrence of the Senate. The bill last mentioned was read, and ordered to the second reading. The resolution last mentioned was read, and ordered to be printed for the use of the Senate. The Senate resumed the consideration of the motion made yesterday, that a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and Vice President of the United States, and for determining the legality or illegality of the votes given for those officers in the different States, and that the committee be authorized to report by bill or otherwise; and the motion as amended was adopted; and, Ordered, That Messrs. Ross, LAURANCE, DEXTER, PINCKNEY, and LIVERMORE, be the com mittee. MONDAY, January 27. The bill, sent from the House of Representatives, entitled "An act to suspend in part an act, entitled An act to augment the Army of the United States, and for other purposes," was read the second time. Ordered, That it be referred to Messrs. TRACY, GUNN, and SCHUREMAN, to consider and report thereon to the Senate. The Senate resumed the consideration of the amendments reported by the committee to the bill, entitled "An act providing for salvage in cases of recapture; and, after debate, Ordered, That the further consideration thereof be postponed. The Senate took into consideration the resolution sent from the House of Representatives, authorizing and directing the Secretary of State to procure and transmit to the Governor of North Carolina copies of the laws of the United States; and Resolved, That they do concur in the resolution. TUESDAY, January 28. The Senate resumed the consideration of the amendments reported by the committee to whom was referred the bill, entitled "An act providing for the enumeration of the inhabitants of the United States;" and, the first amendment reported being amended, on motion to agree to the amendment, as follows: SEC. 1. Strike out lines 8, 9, 10, 11, 12, and to the word "for" in the 13th line, and insert "to take, or cause to be taken the number and names of the free inhabitants, (including those bound to service for a term of years,) and the number of slaves within their respective districts and territories; omitting, in such enumeration, Indians not taxed, and designating the age, sex, and colour, of all free persons; also the profession, trade, or occupation, in which every free male, above the age of twenty-one, is chiefly or principally employed, and the professions, trades, and occupations to which free males, under twenty-one, are bound as apprentices; and, also, distinguishing those who were inhabitants of the United States on the third day of September, one thousand seven hundred and eighty-three, or born under the jurisdiction thereof afterwards, from those who have emigrated since that time, according to the schedule herein contained :" 6th CoN.-2 SENATE. It was determined in the negative-yeas 12, nays 19, as follows: YEAS-Messrs. Baldwin, Brown, Chipman, Dexter, Foster, Hillhouse, Laurance, Paine, Read, Ross, Schureman, and Tracy. NAYS-Messrs. Anderson, Bingham, Bloodworth, Cocke, Franklin, Goodhue, Greene, Gunn, Howard, Langdon, Latimer, Livermore, Lloyd, Marshall, Mason, Nicholas, Pinckney, Watson, and Wells. And it was agreed that the further consideration of the bill be postponed till to-morrow. WEDNESDAY, January 29. The Senate resumed the consideration of the amendments reported by the committee to whom was referred the bill, entitled "An act providing for the enumeration of the inhabitants of the United States;" and having agreed to some of the amendments reported by the committee, together with sundry additional amendments, Ordered, That this bill be recommitted. Mr. LIVERMORE, from the committee to whom was referred the bill, sent from the House of Representatives, entitled "An act for the relief of John Vaughan," reported the bill without amend ment. THURSDAY, January 30. The Senate resumed the consideration of the amendments reported by the committee to whom was referred the bill, entitled "An act providing for salvage in cases of recapture ;" and, having agreed thereto, Ordered, That this bill pass to the third reading as amended. The Senate proceeded to consider the report of the committee on the bill, entitled "An act for the relief of John Vaughan;" and, after debate, adjourned. FRIDAY, January 31. The bill, sent from the House of Representatives, entitled "An act providing for salvage, in cases of recapture," was read the third time. Resolved, That this bill pass with an amendment. The Senate resumed the consideration of the report of the committee on the bill, entitled "An act for the relief of John Vaughan;" and, after debate, On motion, to agree to the third reading of the bill, it passed in the affirmative-yeas 16, nays 15, as follows: YEAS-Messrs. Baldwin, Bingham, Bloodworth, Foster, Franklin, Greene, Langdon, Latimer, Laurance, Lloyd, Nicholas, Pinckney, Read, Ross, Tracy, and Wells. NAYS-Messrs. Anderson, Brown, Chipman, Cocke, Dexter, Goodhue, Gunn, Hillhouse, Howard, Livermore, Marshall, Mason, Paine, Schureman, and Watson, So it was Resolved, That this bill pass to the third reading. DRAWING JURIES BY LOT. Mr. PINCKNEY, agreeably to notice given on the 23d instant, asked leave to bring in a bill to establish an uniform mode of drawing juries by lot, in all the Courts of the United States; and, leave being granted, the bill was read. On motion to agree to the second reading of the bill, it passed in the affirmative-yeas 30, as follows: YEAS-Messrs. Anderson, Baldwin, Bingham, Bloodworth, Brown, Chipman, Cocke, Dexter, Foster, Franklin, Goodhue, Greene, Gunn, Hillhouse, Howard, Langdon, Laurance, Livermore, Lloyd, Marshall, Mason, Nicholas, Paine, Pinckney, Read, Ross, Schureman, Tracy, Watson, and Wells. On introducing the above bill, Mr. PINCKNEY addressed the Chair as follows: Mr. President: Agreeably to the notice I gave, I rise to introduce a measure which appears to me of the highest importance to this country; it is for the purpose of introducing a bill to establish an uniform mode of drawing juries by lot in the Courts of the United States. On this occasion it will be unnecessary for me to go into an examination of the nature and excellence of the trial by jury, further than to remark, that we must all consider a fair and impartial one as next in point of importance to an uncorrupt or unbiassed choice of the Legislature. On the integrity and impartial decisions of our juries, depend not only the lives and properties, but what is infinitely dearer to freemen, their privileges, and characters. Your Legislature and your juries are the foundation upon which your freedom must rest. The Constitution has declared our citizens shall always enjoy the benefit of both; but the particular modifications under which the right of trial by jury shall be extended to them, depend upon the Legislature. It is to endeavor to rectify what I conceive to be a fatal error on this subject, that I now address you-I do so in the most perfect confidence that I shall be heard with that attention the importance of the subject is entitled to; that, on one so interesting to every part of the community, gentlemen will leave themselves open to conviction; that the principles and best mode of establishing impartial justice will be sought for, and that, when discovered, they will be suffered to prevail. JANUARY, 1800. nature of our Government; that it is intended to be ingrafted upon our judiciary, and remain as a bulwark, constructed to resist all the storms of power, of privilege, or of faction, that may hereafter assail it. It will be necessary, before we go into an examination of the bill I intend to produce, to state to you the defects of your jury system as it stands at present, and the danger and inconvenience it produces. The introduction of juries was intended to serve as a barrier against tyranny, and to be the guardian of the private rights and privileges of the people. Well and impartially selected, they are certainly the most complete defence against oppression, and the most certain means of producing impartial justice, that ever the ingenuity of mankind could discover; this and the representative principle are unquestionably the greatest efforts of the human mind; and they are blessings unknown to the ancients, which I trust our country will carry further and more completely into operation, and make them more a public blessing to our own than they have yet been to any nation. It is true we borrowed our jurisprudence from England, but weak and lame indeed is the administration of justice in that country to what I hope it will be in this. While their judges are appointed by the Crown-some of them holding seats in Parliament, all of them constantly looking to the Monarch for further honors and emoluments, and removable by an address of both Houses, which a Minister can always command-while their juries are summoned at will by a sheriff, Heaven forbid we should not exceed them in the purity and impartiality of our judicials! As they first taught us the value and importance of an independent judiciary, we will in return transmit them our improvements and teach them by our example to perfect their own; we will, too, I hope, be the means of extending it to other nations-for no pride can certainly be a more honest one than that of wishing our country to take the lead. and be an example to the world in everything that may tend to their freedom and happiness. One great defect in our present jury system is. that it introduces an inequality in the proceedings of our courts. In some districts the juries are drawn by lot in one mode, and in other districts drawn in a different one; in many they are not I will begin by expressing my astonishment drawn by lot at all, but summoned at the will of that in framing the law for establishing the Judi- the marshal; whereas in courts emanating from cial Courts of the United States, its forms did not the same authority, held by the same judges, and adonly establish one uniform mode, but that in doing ministering the same laws, there should be an uniso, they did not without hesitation give the pre-formity in all the proceedings. Another is, that the ference to the drawing jurors by lot-a mode long districts or portions of territory out of which the in use in several of the States, where the excel- juries are to be drawn, are not precisely fixed; lent effects it has produced has proved it to be in- but, in many instances, perhaps in all, it is left to contestably the best that has ever been devised, for the clerk and marshal to draw or summon them producing complete and impartial justice. This as they please; whereas the boundaries of the being the great object of our judiciary, I hope the counties or districts from which they are to be House will upon the present occasion throw all drawn, ought to be so fixed as to leave no discretion party views and opinions out of the question; that on this subject to the officers of the court, and they will recollect it is not for the present moment, while a sufficient number of jurors are secured to or to answer any temporary purposes, this regu-answer the end, to prevent them being drawn at lation is intended; that it is one springing from such distances as would probably produce inconthe habits and opinions of our citizens, and the venience or delay, or in many instances inevitable absence. But, sir, the greatest of all its defects, is the placing it at all in the power of the marshal to exercise his discretion in so important a manner as to select a jury as he pleases. The danger and consequences of this power vested in a ministerial officer, appointed by the President, holding his office during his pleasure, and looking up to him for other and more honorable and lucrative appointments, appear to me not only to be one of the greatest evils under which a part of the American people at present labor, but one which does not seem, before this, to have claimed from them or their Government the attention due to its importance. It is for this reason I have thought it my duty to bring it to your view at this time; and I do not hesitate to confess that I shall even consider it as one of the most fortunate moments of my life, that I have had an opportunity of first moving in a question on which the true freedom and happiness of our country so much depends. Should I succeed even partially-should I be the means of producing only an alteration of the present unjust and oppressive system, and lay a foundation for a complete and perfect one hereafter, it will amply compensate me for all the remarks and odium which the mover in so important a reform must naturally expect. Viewing, as I do, impartial juries as among the most indispensable ingredients of a free Government, it is my duty to declare, and I solemnly do deliver it as my opinion, that in those States in which the federal marshals have a right to summon jurors as they please, the people are not free; that in those States the impartiality of your judicial tribunals, and the purity of the administration of justice, must depend not on the laws but the integrity and honest independence of a marshal; to him is left the monstrous and dangerous power of summoning proper or improper, fit or unfit, dishonest or upright men-men who may be the friends or enemies to the parties who are on their trial, or who on political questions may be known to be opposed to them, and to hold opinions diametrically contrary to those which are perhaps in the course of the trial to be submitted to them for their decision. Who can deny that on the wise or oppressive, the unbiassed or corrupt use of this power must depend the decisions of our judiciary, in every case where party spirit runs high, and where it may be an object of great moment to influence the proceedings of a marshal? On a public and political question, any man can tell the danger and impropriety of such a power vested in an individual. But not only on questions of a public or political nature, but even in private cases, where the object in dispute is considerable, and where the parties have extensive concerns, no man ought to possess the power of summoning, as his friendships or hatreds, his caprice or perhaps something worse, may direct him, the jury who are to decide questions on which not only the fortune and happiness of individuals, but the character of some laws, and sometimes the faith of treaties, may depend. SENATE. questions in which the lives or characters of our citizens, may be concerned-on charges against them of a political nature, as well as in those entirely of a private nature, in which public questions are not at all involved. With respect to those of a public nature, I must confess that when I first arrived here, and discovered the precarious and unsafe tenure on which the citizens of New York, Pennsylvania, Maryland, Virginia, and I believe New Jersey, held everything that freemen ought to consider as most dear-when I was informed that on every question respecting character, life, or fortune, the men who were to decide were to be picked or selected by a sheriff or a marshal, and not impartially drawn by lot, it was difficult for me to find words sufficiently expressive of my astonishment. I could scarcely believe that a people so enlightened, and so jealous of their liberties-a people who have had before their eyes, and in their very neighborhood, such excellent examples, in this respect, as the Eastern and Southern States, could have so long neglected a reform more precious to them than any other they could adopt. It has been since to me a source of much surprise that the State Legislatures, in the administration of justice within their own States, did not at once perceive and correct a system which, under a partial or oppressive use of it, places it so much in the power of an officer to stain the character of a nation and violate its most sacred obligations. This inattention is, however, I trust, now at an end, the subject is brought to their view, and the question is fairly before them; they are now to determine whether their exertions are in future to have all important questions respecting their dearest interests depend upon juries, impartially drawn by lot, under the regulations of laws equally affecting all, and whose provisions no sheriff or marshal can violate or interfere with; or to entirely rest with a sheriff or marshal, on whose integrity, knowledge, or impartiality, or on whose want of these essential qualities, is to depend the pure or corrupt administration of their laws. In a word, with the State Legislatures it now remains to be determined whether the citizens of the States I have mentioned are to be less free and less entitled to the inestimable privilege of trial by a fair and impartial jury, than their brethren in the Eastern and Southern States. By the law of Congress now in force, juries are to be designated by lot or otherwise, in the manner now in use in the several States. From this it is to be presumed that whether Congress agree or not to the general reform I shall introduce, they will certainly always consent to a law conforming the practice of the several courts to the mode in use in the States where these federal courts are held. Hence it becomes highly important to these States, and their citizens, to insist that the State Legislatures shall alter their modes as soon as possible: they should make it an indispensable compact with the persons they elect to represent them; they should consider it as more dear to them than any other public act they could attend to. For I will for a moment consider this dangerous pow-how can that Government or that people be free, er in a marshal, as it respects the public, on all where the execution of their laws is to depend upon |