CHAPTER XV.

FIRST AND SECOND SESSIONS IN CONGRESS-LETTERS TO HIS FAMILY, MAJOR BURNHAM, DR. DANA, FROM WASHINGTON-DIARY FOR 1802, 1803LETTER FROM REV. DR. MORSE.

MAJOR BURNHAM.

WASHINGTON, March 4, 1802.

My Dear Sir-I should not have delayed so long to have acknowledged your polite and much esteemed favor of January 30th, had it not been that, to tell you the truth, I have hardly been in a condition to write to my friends since I received it. It came to hand just as the Judiciary bill was coming before the House. .. I have rather waited until it came to a decision. The expected event has come to pass, and as painful as it is, I feel my mind relieved.

The bill was called up on Monday, February 15th, and the debate continued, with intermissions, and generally to very late hours, until about a quarter before twelve at night.

On Monday, the 1st of March, the minority generally discovered a wish to come forward and disclose their opposition to this daring and pernicious measure. Some arrangements were made, with a view that gentlemen most accustomed to speaking should somewhat intermix, but were principally to wait till toward the close of the debate. A backwardness to Mr. Giles seemed

speak appeared on the side of the majority. compelled to come forward early in the debate. His exordium, which contained far the greater part of his speech when delivered (though it shortened, and the other part lengthened, in the papers), was a violent attack upon Federal men and measures from the commencement of the present government. Even the great Washington did not escape the lash of severe criminations. Taking this range at the onset, a field was opened that could scarcely ever be traversed. Though Giles was sufficiently scourged for his abuse, which he felt with keen sensations, yet it was the occasion of many unpleasant and

unhappy observations. He was followed by Mr. Bayard, who did not expect to speak so early, and had very little time for preparation. You will see his speech in the papers. The most conspicuous and able speakers on our side the house were Messrs. Bayard, Rutledge, Griswold, and Dana. Several gentlemen who had been long members of Congress, but not in the habit of speaking, made their first speech on this occasion, and appeared to much advantage. On the side of the majority, Mr. Giles and Mr. Nicholson were the only distinguished speakers, and performed their part well. Mr. Giles was up between two and three hours, and Mr. Nicholson between four and five-he began his speech on one day and concluded it on the next.

The vast speeches of Bayard, Rutledge, Griswold, and Dana, from five to seven hours each, speaking until they were so exhausted and faint as to be compelled to sit down because their voices failed, and requesting leave to speak again the next day, are the first instances of the kind in America, and, perhaps, in the history of parliamentary speaking in any country. The display of talents, extensive knowledge, strength of reasoning, and pathetic address, will do honor to themselves and to their country.

Much decorum and dignity was preserved through this long discussion, for which we are greatly indebted to our excellent chairman, Mr. John C. Smith, of Connecticut (and who is one of our family). The fatigue was so severe as to make him quite sick, so as to render him unable to attend when the bill came before the House. The Senate generally met earlier than their usual hours, and adjourned to attend the debates. Large numbers of ladies and gentlemen from different parts of the country were admitted on the floor of the House every day, and the lobby and the gallery were full. The session commenced (on Monday) early, and, aware that we were not to have another day, those who could not reconcile themselves to a silent vote had to press hard to get an opportunity to speak. Arrangements were made among our friends, but we were much interrupted, and a large number were not permitted to speak at all.

The air of the room had generally been bad in the latter

part of the day, but much worse on this day, owing to the crowd of spectators. We were confined to our chairs from about ten in the morning till nearly twelve at night, and no member is at any time allowed to stand, only when speaking. From eight in the morning, when I breakfasted, till one at night, when I dined (about seventeen hours), I took no refreshment but water. When the votes, this evening, on the main question were taken, Mr. Eustis took care to be out of his place, and was not counted on either side. The numbers were declared that evening to be: for the bill, 60; against it, 31. But in the Democratic papers the next morning: for the bill, 55; against, 30. Tuesday was employed in attempting amendments, and Wednesday, a postponement to December. Debates on the postponement were very interesting, and continued until candle-lighting. On passing the bill: ayes, 59; nays, 32. Messrs. Bayard, J. C. Smith, Shepard, and Mattoon were sick and unable to attend. Messrs. Perkins, Stratton, and T. Morris had leave of absence some weeks ago, and were gone home. If they had been present, the nays would have been 39. On the passing the bill, Dr. Eustis left his party and came over and voted with us.

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Thus the excellent instrument we have been accustomed to view as the pride of our country and our ank of safety is gone. In the language of Mr. Morris, "It is dead, it is dead."

I have not attempted to give you any account of the merit of the speeches made on this occasion, which will form an important era in the annals of our country. You will see them in the papers. If the whole were to be printed, they would fill volumes; and I doubt whether the stenographers have taken the whole, though there were constantly three or four at the table. Some have revised their own minutes, but some have not been able to do it.

Mr. Giles and Mr. Randolph have much more openly avowed

* Dr. William Eustis, born in Cambridge, Mass., June 10, 1753; graduated, Harvard College, 1772. In 1800, he was elected a Representative in Congress, serving until 1805. In 1809, was appointed Secretary of War by President Madison; in 1815, was sent Ambassador to Holland. Representative in Congress from 1820 to 1823; chosen Governor of Massachusetts in 1823; died in Boston, February 6, 1825.

the plans of government under the new order of things than was expected. They publicly declared they wished for the bill to pass, as much as for any thing, to try a Constitutional principle, whether the Judges were independent or not. The only plea for repealing the system is the expense; but the day the bill passed, Giles gave the outlines of a new law, which is now to be brought forward and passed, quite as expensive, and much less beneficial. The new theory is, that the majority can have no object but the good of the people; that the Legislature ought not to be controlled, in promoting their good, by any fixed principles contained in a written instrument. The only political Constitution by which Congress should be gov erned is the public opinion. The Legislature to be omnipotent, and executive responsibility sheltered under its wing. All abuses of power in Congress are to be corrected by future elections. The first step to effect this plan would necessarily be to break down that branch of the government which establishes the independence of the Judiciary.

I can only add, I am,

Yours, most sincerely,

M. CUTLER.

WASHINGTON, March 4, 1802.

DR. TORREY.

Dear Sir:-I have, at this moment, only time to inform you of the issue of the Judiciary Bill. The debates were brought to a close on Monday evening (March 1st), between eleven and twelve at night. It was the intention of the majority to have taken the main question on Saturday, and the debates were continued until nine at night; but so many of the minority, who had not had an opportunity to speak, insisted on their constitutional right to declare their sentiments, and, being joined by the majority, an adjournment was obtained. On Monday was exhibited the most trying scene which has transpired through the course of this long and interesting discussion. Arrangements were made in the morning among our friends, with a view to give as many as possible an opportunity to express their opinions; and all, except Mr. Dana (who was to take his own time), were to curtail their

observations as much as possible, to accommodate others. The debates were opened at an early hour by Mr. Hill. It was agreed that I should follow him, but some of the majority were instantly up, and it was not until after a number of attempts that I was able to address the chair, and obtain an opportunity to speak. Mr. Hastings, in a very handsome speech, followed me. It was now nearly five, and a motion was made to adjourn, but failed. Mr. Dana* rose, and spoke till nearly ten, when he found that his voice and strength failed, though he intended to speak (to finish his plan) about an hour longer. It is saying much, but, I think, not too much, that Mr. Dana surpassed all that had gone before him. As soon as he sat down, a number were up, but a vociferous call for the question prevented their speaking. After much contest, Mr. Plater and Colonel Tallmadge obtained leave to speak, but were short. When Colonel T. sat down, others attempted to speak, but were prevented. Though not less than eight or ten more were determined not to give silent votes on a question so interesting, they wore obliged to submit, and the debates closed. On the main question for the Bill, 60; against it, 31. The late hour of the night, the almost suffocating feeling of the air in the Hall owing to the prodigious crowd of spectators (which was greater on this day than on any day before)—and ill state of health, had compelled four of our men to retire before the vote was taken. Three were gone home, some time ago, with leave of absence. If all the minority had been present, there would have been 38 against a Bill.

The fatigue of this day was great. I took my seat about 10 in the morning, and remained in it until a few minutes before 12 at night. No member is permitted to stand up in his seat, only when speaking. We may leave our seats and walk a few minutes on the floor of the House, when tired of sitting; but the floor, on this day (as has been for the fortnight past), was occupied by ladies and gentlemen, so as to leave no room

* Samuel Whittlesey Dana, an eminent and leading Federalist, was born, New Haven, Conn., July, 1757; died, July 21, 1830. Graduated at Yale College, 1775. Member Congress, 1796 to 1810; United States Senator, 1810-1821; Was for many years Mayor of Middletown, Conn. -Drake's Dict. Am. Biog.