Journal of William Maclay/First Session of the First Congress/The Judiciary Bill

by William Maclay

June

June 1789
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1	2	3	4	5	6	7
8	9	10	11	12	13	14
15	16	17	18	19	20	21
22	23	24	25	26	27	28
29	30

22

June 22d. — Attended the Senate. The bill for settling the new judiciary was taken up. Much discourse about the mode of doing business. We were in committee. The first and second clauses postponed. A question was taken whether there should be district courts. Much wrangling about words. This was carried. But now Mr. Lee brought forward a motion nearly in the words of the Virginia amendment, viz., "That the jurisdiction of the Federal courts should be confined to cases of admiralty and maritime jurisdiction." Lee and Grayson supported this position. Elsworth answered them, and the ball was kept up until past three o'clock. The question was going to be put. I rose and begged to make a remark or two. The effect of the motion was to exclude the Federal jurisdiction from each of the States except in admiralty and maritime cases. But the Constitution expressly extended it to all cases, in law and equity, under the Constitution and laws of the United States; treaties made or to be made, etc. We already had existing treaties, and were about making many laws. These must be executed by the Federal judiciary. The arguments which had been used would apply well if amendment to the Constitution were under consideration, but certainly were inapplicable here. I sat down; some called for the question and some for an adjournment. The adjournment carried.

Strong this day mentioned in conversation that the President would continue no longer in office than [when] he saw matters fairly set going, and then Mr. Adams will begin his reign. This no doubt is a desirable era for the New England men. The very principles which actuated Dr. Rush and myself when we puffed John Adams in the papers and brought him forward for Vice-President will probably make him President. We knew his vanity, and hoped by laying hold of it to render him useful among the New England men in our scheme of bringing Congress to Pennsylvania. But his pride, obstinacy, and folly are equal to his vanity, and, although it is a common observation that fools are the tools of knaves — and I am certain weak men are often brought forward with such views — yet John Adams has served to illustrate two points at least with me, viz., that a fool is the most unmanageable of all brutes, and that flattery is the most irksome of all service.

23

June 23d. — Attended at the Hall a little after ten. Came into the Senate chamber. There was nobody here but Mr. Adams. He was in the great chair. When I came in he left it; came and sat near me until he read a newspaper; shifted to the chair next to me; began a discourse on the subject of Pennsylvania. Said they were "the best republicans in the Union. Their adoption was unequivocal. This could not be said of Boston, New York, or Virginia." Surely there was a meaning in this. I replied that we had, no doubt, our faults; but certainly the virtues of plainness, industry, and frugality would be allowed to us in some degree; that Federalism was general, but there was a general abhorrence of the pomp and splendid expense of government, especially everything which bordered on royalty. Several members came in and joined us.

Senate formed and the business of yesterday was taken up just where we left it. The discourses of yesterday were all repeated. Mr. Lee endeavored to give the whole business a new turn, to elude the force of what I had said yesterday. According to his explanation on admiralty and maritime jurisdiction he would have taken in a vast field. I rose and read over from the Constitution a number of the powers of Congress — viz., collecting taxes, duties, imposts, naturalization of foreigners, laws respecting the coinage, punishing the counterfeiting of the coin, treason against the United States, etc.; declared that no force of construction could bring these eases within admiralty or maritime jurisdiction, and yet all these cases were most expressly the province of the Federal Judiciary. So that the question expressly turned on this point, "Shall we follow the Constitution or not?" I said a good deal more, but this was the substance. Mr. Lee, after some time, opposed me with a very singular argument. He rose and urged that the State judges would be all sworn to support the Constitution; that they must obey their oath and, of course, execute the Federal laws. He varied this idea in sundry shapes. I rose and opposed to this that the oath taken by the State judges would produce quite a contrary effect; that they would swear to support the Constitution; that the Constitution placed the judicial power of the Union in one Supreme Court, and such inferior courts as should be appointed; and, of course, the State judges, in virtue of their oaths, would abstain from every judicial act under the Federal laws, and would refer all such business to the Federal courts; that if any matter made cognizable in a Federal court should be agitated in a State court, a plea to the jurisdiction would immediately be put in and proceedings would be stayed. No reply was made; the question was soon taken and the motion was rejected.

The first clause of the bill was now called for. Grayson made a long harangue. I mentioned that I thought this an improper time to decide absolutely on this part of the bill. If the bill stood in its present form and the Circuit Courts were continued, six judges appeared to be too few. If the Circuit Courts were struck out, they were too many; that it would have pleased me better; but as we were in committee I would not consider myself as absolutely bound by anything that happened now, but would reserve myself until the second reading in the Senate. Mr. Elsworth rose and made a most elaborate harangue on the necessity of a numerous bench of judges. He enlarged on the importance of the causes that would come before them, of the dignity it was necessary to support, and the twelve judges of England in the Exchequer Chamber were held up to view during the whole harangue, and he seemed to draw conclusions that twelve were few enough. I readily admitted that the information respecting the English courts was fairly stated. But in England the whole mass of litigation in the kingdom came before these judges, the whole suits arising from eight or nine millions of people. Here it was totally different. The mass of causes would remain with the State judges. Those only arising from Federal laws would come before the Federal judges, and these would be comparatively few indeed. When they became numerous it would be time enough to increase the judges.

Mr. Grayson rose again and repeated his opinion that numbers were necessary to procure respectable decisions. I replied that, in my opinion, the way to secure respectable decisions was to choose eminent characters for judges; that numbers rather lessened responsibility, and, unless they were all eminent, tended to obscure the decisions. The clause, however, was passed. Adjourned at the usual hour.

24

June 24th. — Rode out early this morning, but returned before eight. Attended [Senate] at the usual time. The bill for the judiciary was taken up. The first debate that arose was whether there should be Circuit Courts or courts of nisi prius. This distinction was started by Mr. Johnson, from Connecticut. Was adopted, and spoke long to by Mr. Butler. This kept us most of the day. I did not give a vote either way — indeed, I do not like the bill. The vote was for district courts. We proceeded to a clause about Quakers taking an affirmation. I moved an amendment that all persons conscientiously scrupulous of taking an oath should take the affirmation. Great opposition to this. The Quakers abused by Izard. Mr. Morris and myself defended them. I read the Constitution by which the affirmation is left open to every one, and called this whole clause unconstitutional. The President himself may qualify by affirmation — the Constitution does not narrow the ground of conscience. I was up and down often in this business; but the grand procession of the Freemasons came by with much noise of music a little after three, and the House adjourned.

Had a very long walk this afternoon with Mr. Contee and Mr. Seney, of Maryland. They seem agreeable and accommodating men. They were very willing to remove Congress from this place. They named Harrisburg, I believe to try me. I said little in favor of it, but assured them that of two hundred acres which I had adjoining that town they should have one [hundred] if they went there.

My memory certainly fails me of late. I had this day some conversation of importance with some person which I had determined to note down, but it has escaped from my memory, and I can neither recollect person, place, nor subject, only that I had determined to minute it.

25

June 25th. — Mr. Wynkoop came to town last night. I went this morning with him to visit Mr. Partridge and Mr. Sedgwick, who had been polite enough to leave cards at my lodgings. Found their lodging with some difficulty. This business over, attended at the Hall. First business was to take up the Impost bill. Concurred with the Lower House about the style of the enacting clause. But a spirit of great obstinacy was manifested with regard to the fourth and fifth clauses. Mr. Morris most pointedly against discrimination, etc., between nations in treaty and others. Lee and Elsworth same. The Tonnage bill was read. The same difference occurred. Managers of conference [were] chosen on both bills — Mr. Morris, Mr. Lee, and Mr. Elsworth. Read the bill for the Department of Foreign Affairs. Laid on the table. And now took up the judiciary and the affair of the affirmations. Ran Elsworth so hard and the other anti-affirmants on the anti-constitutionalism of the clause that they at last consented to have a question taken whether the clause should not be expunged, and expunged it was. Labored in the judiciary till three, and adjourned.

26

June 26th. — Attended the Hall at the usual time. The managers were met and the conference begun. The Senate formed, but the managers were absent at the conference. Some were for proceeding and others were for waiting. The members strayed to and from the conference chamber. An adjournment was often spoken of; at last moved and carried. Well may it be said that men are but children of a larger growth, for on this question being carried there was the same flutter of joy among the members that I have seen among children in a school on giving leave; and away all hurried, except a few that remained a little to see if the conference would finish. Among them I was one who wished to know the results of the conference.

27

June 27th, Saturday. — Went a little before ten to deliver a letter to Mr. Morris in favor of Mr. Harris from a Mr. Ridley. Mr. Morris read. the letter and only remarked, "Mr. Harris' friends are much in earnest." I mentioned the petition which I held in my hand from Mr. Harris. The point I wished to bring matters to was for him to deliver it in. He was guarded, and threw out such sentiments as showed me he would not move in the matter; said the petition had best be inclosed in a cover and directed to the President. I held it up; said it was directed already; that Mr. Harris wished it might be put into the hands of Colonel Humphreys; that I thought I had best follow his directions. I went with my lame knees, first to visit Colonel Butler, who had been thrown from a [sedan] chair with Mr. linger and was hurt. Mr. Morris went with me. He has never asked me to his house save once, and I shall not go much.

From visiting Mr. Butler I went to the President's. The day was now hot, the walk was long, I was lame, and the streets were ripped up a great part of the way to be paved anew; all these things made the journey one of consequence. Some years ago ten times as far would have been nothing. I saw Colonel Humphreys; inquired for the President's health, and delivered Mr. Harris' petition. Humphreys was cold. I can not say what will come of it, but my hopes are not high. I am an ill courtier. The part I have taken in Senate has marked me as no courtier, and I fear will mark poor Davy as a man not to be brought forward. Returned to the Hall very much fatigued.

The Senate met. The managers of the conference reported an agreement of a number of articles. But the bill was not in the Senate. It seems when the conference was agreed to by the Senate, and notice of such concurrence sent down to the House of Representatives, our wise Secretary sent down the bills along with the communication. I was for insisting that in parliamentary language the bills were still before the Senate; they had been there when the conference was appointed; no vote of the Senate had been passed to send them down; the conference was appointed only on the disagreement. There was a great deal said, the amount of which resolved itself into this — that a mistake had been committed. Mr. Morris said if the bills had been fairly in his possession he would have brought them back to the Senate. He actually went to try to get them from the managers on the part of the House of Representatives.

There seemed to be a jealousy between the two Houses who should act first, as the one which acted last would reject the bill, or at least have the blame of rejection if the bill was lost. Gentlemen could not reconcile themselves to act without the bills, for there were two of them, one on impost and the other the Tonnage Act. Some moved to act on the report of the managers. After, however, much desultory conversation, it was agreed to take up the bill for the judiciary.

We were proceeding on this when a message was announced. Sundry communications were brought by the Clerk, and the amendments of the Senate were all adopted on the Impost bill save on the articles of porter and coal. Such was the haste of the Vice-President that he put one question on both these articles at once, and both agreed to. But the Tonnage bill was retained, and the principle of discrimination between nations in treaty and those not was still adhered to by the House of Representatives on this bill. Made some further progress in the judiciary, and adjourned about two o'clock.

28

June 28th, Sunday. — Spent this day, except a small ride in the morning, at home, and wrote to my dear family. How can I answer it to myself that I stay so long from them? How happy will my return make all their little hearts, and yet I stay here wrangling vile politics in a contentious Senate, where there is no harmony of soul, no wish to communicate a happy sensation; where all is snipsnap and contradiction short; where it is a source of joy to place the speech of a fellow-Senator in a distorted or ridiculous point of view; where you may search the whole Union and can not say that you can find the man of your heart! But away with them, and let me think of my dear family. Sent a set of letters by Dr. Ruston for my family.

29

June 29th, Monday. — Attended at the Hall early. Sent my letters to the post-office; and now for the judiciary. I made a remark where Elsworth in his diction had varied from the Constitution. This vile bill is a child of his, and he defends it with the care of a parent, even with wrath and anger. He kindled, as he always does, when it is meddled with. Lee, however, after some time joined me. Although the Vice-President showed himself against us, we carried the amendment.

We got on to the clause where a defendant was required, on oath, to disclose his or her knowledge in the cause, etc. I rose and declared that I wished not to take up the time of the committee, as, perhaps, few would think with me (this I said in allusion to what had happened in the committee when I had exerted myself in vain against this clause), but that I could not pass in silence a clause which carried such inquisitorial powers with it, and which was so contrary to the sentiments of my constituents; that extorting evidence from any person was a species of torture, and inconsistent with the spirit of freedom. But perhaps I should say something more pointed when the matter came before the House in Senate. (My reason of acting thus was: I had spoken to Mr. Morris and found he would not second me in it, as Myers Fisher had not taken notice of this matter in his letter.) Patterson, however, of the Jerseys, sprang up; declared he disliked the clause, and having spoken a while moved to strike it out. I then rose and declared, since one man was found in the Senate for striking it out, I would second him.

Up now rose Elsworth, and in a most elaborate harangue supported the clause; now in chancery, now in common law, and now common law again, with a chancery side. He brought forward Judge Blackstone, and read much out of him. Patterson rose in reply, and followed him through these thorny paths, as I thought, with good success. He showed, justly enough, that Blackstone cut both ways, and nothing could be inferred from him but his ridiculing the diversity of practice between chancery practice and that of common law. Elsworth heard him with apparent composure. He rose with an air of triumph on Patterson's sitting down. "Now," said he, "everything is said that can possibly be said to support this motion. The very most is made of it that ingenuity can perform"; and he entered again the thorny thicket of law forms, and seemed to batter down all his antagonist had said by referring all that was advanced to the forms of law, with which everything had been shackled under the British Government. He really displayed ingenuity in his defense. He made repeated use of the term "shackled," and how we were now free, and he hoped we would continue so.

I determined to have a word or two at the subject. Said I was happy to hear that the world was unshackled from the customs of ancient tyranny; that there was a time when evidence in criminal eases was extorted from the carcass of the wretched culprit by torture. Happily we were unshackled from this, but here was an attempt to exercise a tyranny of the same kind over the mind. The conscience was to be put on the rack; that forcing oaths or evidence from men, I considered as equally tyrannical as extorting evidence by torture; and of consequence had only the difference between excusable lies and willful perjury. I hoped never to see shackles of this kind imposed. Chancery had been quoted; common law had been quoted as practiced in England, but neither would apply to the present case. The party was to answer in chancery, but it was to the judge, and his questions were in writing; but here, by the clause, he must be examined in the open court before the bench and jury and cross-examined and tortured by all the address and malice of the bar. I had further to add that, by the Bill of Rights of the State that I had the honor to represent, no person could be compelled to give evidence against himself; that I knew this clause would give offense to my constituents.

Elsworth rose and admitted that three new points had been started. He aimed a reply, but I thought he missed the mark in every one. The rage of speaking now seemed to catch the House. Bassett was up; Read and Strong [were] at it. We sat till half after three; and an adjournment was called before the question was put. Elsworth moved an amendment that the plaintiff, too, should swear at the request of the defendant, just before the House adjourned.

30

June 30th. — I am still miserably Irene with the rheumatism. Attended at the Hall at the usual time. The clause with Elsworth's amendment was taken up. I rose first. Said that, instead of the clause being amended, I thought it much worse; that it was alleged with justice against the clause, as it stood before, that great opportunities and temptations to perjury were held out, but this was setting the door fairly open. The contest now would be, who would swear most home to the point. If I was against it before, I was much more so now. Mr. Lee rose, and seemed to mistake the matter. I rose and endeavored to do the business justice.

Up rose Elsworth and threw the common law back all the way to the wager of law, which he asserted was still in force. Strong rose and took the other side in a long harangue. He went back to the ancient trial by battle, which, he said, was yet unrepealed, but said repeatedly there was no such case as the present. Elsworth's temper forsook him. He contradicted Strong with rudeness; said what the gentleman asserted was not fact; that defendants were admitted as witnesses; that all might be witnesses against themselves. Got Blackstone; but nothing could be inferred from Blackstone but such a thing by consent. Patterson got up, and back he went to the feudal system. He pointedly denied Elsworth's position. Bassett rose. Read rose, and we had to listen to them all. The question was, however, put first on Elsworth's amendment, and was lost; next on striking out, and it was carried.

The Tonnage bill was taken up. We concurred in one clause, but adhered in the next. And now back to the judiciary. Mr. Lee moved that the postponed clause about the ambassadors, consuls, etc., should be taken up. It was so. I saw Mr. Adams begin to fidget with a kind of eagerness or restlessness, as if a nettle had been in his breeches. He could not restrain himself long, and up he got to tell us all about ambassadors, other Ministers, and consuls; and what he did with his Majesty here and his Majesty there; and how lie got an answer in this case, and how he never got an answer in that; and how he had, with Mr. Jefferson, appointed Mr. Barclay to the Emperor of Morocco; and how the Parliament of Bordeaux mistook the matter and dismisses Mr. Barclay from an arrest, etc. I could not help admiring the happiness of the man. When he had occasion to refer to something said by Elsworth, he called him "the right honorable gentleman."

July

July 1789
Mon	Tue	Wed	Thu	Fri	Sat	Sun
		1	2	3	4	5
6	7	8	9	10	11	12
13	14	15	16	17	18	19
20	21	22	23	24	25	26
27	28	29	30	31

1

July 1. — Very lame, particularly in my right knee. Attended at the Hall at the usual time. The clause was taken up of the Judiciary bill "that suits in equity shall not be sustained in either of the courts of the United States in any case where a remedy may be had at law." Dr. Johnson rose first against the clause. Elsworth answered him, and the following gentlemen all in turn: Lee, Read, Bassett, Patterson, and Grayson. Strong spoke in favor of the clause. The lawyers were in a rage for speaking. Many things were said in favor of chancery that I knew to be wrong. Never was there a field more beaten, from the first Chancellor down. The lawyers seemed all prepared to show their extensive reading.

It was near three, and I determined to say something. A case was often put of a man covenanting to convey land and dying before performance; that there was no relief without chancery. I, however, rose, said much information had been given on this important subject, but I wished for a great deal more. For instance, I desired to know the number of attorneys and persons employed in the law department in England, and the millions (for it was said to amount to several annually) extorted by the law department from that nation; particularly whether the sum so extracted did not exceed the aggregate of the sums in dispute before the courts. Whether any nation in the world, besides the English, would pay their taxes and support any such expensive judiciary; that these points being settled would afford matter of important advice to us, whether it was prudent to imitate the famous English jurisprudence in all its parts; that the advantages of chancery were to my certain knowledge overstated; that the famous ease of the bond performance gave little trouble in Pennsylvania; that the person having paid his bond, brought his suit, and the parties generally consented to a judgment and the sale of the lands, and the sheriff made title; that I thought the clause a good one, and wished it to be more effectual to prevent the flow of causes into that tedious court.

Up rose George Read in angry mood. Said he had a cause of that kind in Pennsylvania; that he had consulted the ablest men there and received for answer [that] there was no remedy in Pennsylvania, and asserted that the people of Pennsylvania wished for chancery, and many of them lamented the want of it.

I got up; declared, as far as I knew the sentiments of the people of Pennsylvania, they disliked a chancery, but that many of them knew not even the name. I never heard any people speak in favor of it, but some gentlemen of the bar, and even among them some doubted whether it would do most harm or good; that in the general it was considered by those who knew anything of the matter, as the field where the gentlemen of the bar would reap the fullest harvest, and it was considered that they enjoyed a plentiful crop as matters stood now. I stated the affair of the bond over again so plainly that Read called out, "In case of consent, I grant it." I had only to add, in-case they do not consent, twelve honest jurors are good chancellors, if not to give the land, at least to give the value of it. The clause stood on the question. The gentlemen of the bar in the House seem to have made common cause of it, to push the power of chancery as far as possible. Mr. Morris seemed almost disposed to join them. As we rose he said, "If I had spoken, I believe I should have differed with you about chancery." I know not what put it there, but it was in my head in a moment that he has two sons studying for the law.

This day the discrimination between the ships of nations in treaty and those not, on the Tonnage bill, was rejected in the House of Representatives also, and, of course, the Tonnage bill now passes. When this doctrine was first broached in the House of Representatives, of no discrimination, it was called "Toryism," and there were but eight votes for it on a division. But mark the influence of the city of New York, or let me call it British influence. To work they set in the Senate, and, before the Impost bill got up, they had secured a majority to reject the discrimination. But some pretext was necessary even in the Senate. The discriminations in the Impost and Tonnage bills were said to be arrant trifles; no compensation for the injuries our trade received; that a deeper mode of retaliation should be entered on — such as would effectually cure all disadvantages and carry the remedy to every particular disease and retaliate on every nation, exactly in kind; and where a disadvantage was imposed a corresponding one should be imposed by us, and not chastise all nations out of treaty with the same punishment. As to gratitude or national friendship, they were held not to exist, and all that was to be done with nations in treaty was to observe the terms of those treaties. A committee, therefore, of Mr. Morris, Mr. Langdon [names left blank], was appointed to examine the state of our commerce, and to bring in a bill for the protection of our commerce. But the discriminations are now struck out of both bills, and I do not expect to hear anything more about the protecting of our commerce unless it should be taken up in the House of Representatives.

Madison, too, is charged with having labored [for] the whole business of discrimination in order to pay court to the French nation through Mr. Jefferson, our Minister to Paris. I feel much readier to believe him guilty of another charge — viz., his urging the doctrine of taking. away the right of removals of officers from the Senate in order to pay his court to the President, whom, I am told, he already affects to govern. Time will, however, throw light on both these subjects. Mem. It has done so in a remarkable manner in one of them. Vide 14th February, 1791.

2

July 2d. — Went this day to the Hall at the usual time. The bill for the judiciary was taken up. I really dislike the whole of this bill, but I endeavored to mend it in several places and make it as perfect as possible, if it is to be the law of the land. But it was fabricated by a knot of lawyers, who joined hue and cry to run down any person who will venture to say one word about it. This I have repeatedly experienced, and when I am certain (for a man may sometimes be certain of being right) of having made obvious and proper amendments, I have been pushed at from both right and left by them, and not a man to second me. Be it so, however; this is no reason that I should be silent. I ran Elsworth hard on the uselessness of part of this bill to-day, and thought I had the advantage in some of the answers I gave. But it was of little avail. Grayson, though a lawyer, told me yesterday that it was in vain to attempt anything. The people who were not lawyers, on a supposition that lawyers knew best, would follow the lawyers, and a party were determined to push it. I needed no information from him on this head.

We, however, came to a clause, the import of which was that on bonds, articles of agreement, covenants, etc., the jury should find the breach and the judges assess the damages. I attacked this mixed, half-common law, half-chancery proceeding; accused the bill of inconsistency; that a clause had already been adopted which excluded chancery where common law would afford a remedy. Here we had a jury and common law acting with the cause, and we flew from it to chancery powers. This was inconsistency. The jury were the proper chancellors in such a case to assess the damages; and I liked them much better than the judges. They were from the vicinity, and best acquainted with the parties and their circumstances. When the judgment was by default or entered up, a jury of inquiry of damages should ascertain the sum.

Strong made a long speech how this could not be done on the principles of common law and chancery principles, and seemed willing to show his accurate reading on these points, and concluded by saying either he or the gentleman last up did not understand the principles of these courts, for the gentleman was for doing what he thought could not be done. I rose quick to reply. Said the clause was before us — the clause was in our power — what I wanted done was clearly expressed [in the clause]. I hoped we were not always to be trammeled with the fetters of English jurisprudence; that we would show [that] we had judgment and would act for ourselves, independent of any forms, and concluded with a question whether we were always to be considered as empty bottles, that could contain nothing but what was poured into them. Several gentlemen now rose and agreed with me in objecting to the clause. But there seemed some difficulty in amending, and it was postponed for amendment.

3

July 3d. — This [day] was warm; quite as much so, I thought, as any day I remember in Pennsylvania. Attended at the Hall. Business went on at the usual time. It was the judiciary which we were upon. Light and very trifling debates in general. Mr. Read got up and kept "hammering" for a long time (as Mr. Morris termed it), and really it was difficult to say what he would be at.

I did not embark in any debate until we came to the clause empowering the judges, either on their own knowledge or complaint of others, to apprehend, bail, commit, etc. I alleged that the judges would be men of like passions and resentments as other men; that they should not be both witnesses and judges, accusers and all; that the complaint also should be on oath. I moved, therefore, to strike out those words and insert "upon oath or affirmation made and reduced to writing and signed by the party, stating sufficient reason in law." Lee, of Virginia, seconded me this time. But, according to custom, I had Elsworth and the gentlemen of the bar up against it. It was insisted that this was agreeable to the laws of England; that the oath of the judge would bind him to all this; that a judge had a right to use his private judgment, just as a juryman had a right to act on his private knowledge. Elsworth, Strong, Bassett, Grayson, and others, all up, and volumes did they pour out.

I could not get speaking for a long time. I, however, made a short reply; said we were now framing the law which would be the rule of conduct for the judges; that practice, such as the gentlemen insisted on, had been used by judges; and, from experience, we had learned the danger of it. Cases were known where the resentment of a judge was the accusing spirit and prejudice pronounced judgment. Every part of English jurisprudence was not unexceptional, nor would I blindly follow them in everything; that the case adduced of a juryman using private knowledge would not apply. A juryman, legally speaking, had no private knowledge, or at least none that he ought to keep private. If he knew anything pertinent to the issue, he ought to disclose it upon oath to his fellows in court; and this was the law in daily practice upon it. If a judge happened to be the only person having knowledge of the commission of a crime, let him apply to some other justice. This I had known done. The case of a forcible entry did not apply to common practice, and yet in this case the justices would generally bind over witnesses to prosecute. I hinted at some other points of the clause as imperfect, and said much more before I sat down, particularly as to the dangerous ground on which we trod, considering the interference, or the very probable interference, of the Federal and State Legislatures, and the giving more power over the liberty of the citizen to the former than was usually practiced by the latter would not fail to sow the seeds of dissension.

I had showed this clause to Mr. Morris before I moved for the alteration. lie approved of it, but he went out and stayed away until all was over. He asked when he came in if his presence would have altered the vote. I told him I supposed not; we had lost it. I know nothing of the reason of his absence. Charity and good humor will say it was accidental. He has been — at least I thought so — rather distant with me. lie has showed me none of the communications which he has received respecting the judiciary. This has not been my conduct with regard to him, and I know he has showed our Attorney-General's remarks to Lee, Carrol, and Elsworth. I likewise know he has remarks from Judge Hopkinson. Nothing shall be wanting on my part to act in harmony with him. I whispered him at a leisure time, "We should have a meeting and compare all the remarks we have received, and make up our minds as to the amendments which we will move." I paused; he did not reply; continued: "I am quite disengaged; I will call on you at any time when it is convenient." [He] replied: "It must be here. I have all my papers here." "Agreed, I will meet you at any time." Nothing more [said].

Settled with my landlord; he owes me fifteen shillings and eightpence. Mr. Morris had a set of remarks from Wilson and a set drawn up by Wallace which I never saw.

4

July 4th. — This is the anniversary of American Independence. The day was celebrated with much pomp. The Cincinnati assembled at Saint Paul's Church, where an oration was pronounced by Colonel Hamilton in honor of General Greene. The church was crowded. The Cincinnati had seats allotted for themselves; wore their eagles at their button-holes, and were preceded by a flag. The oration was well delivered; the composition appeared good, but I thought he should have given us some account of his virtues as a citizen as well as a warrior, for I supposed he possessed them, and he lived some time after the war, and, I believe, commenced farming.

Excepting my attendance at Saint Paul's Church, I kept [the] house all day, as I find going out only hurts my knees, both of which are still affected by the rheumatism.

5

July 5th, Sunday. — Was a rainy day; stayed at home all day, my thoughts chiefly employed about my family. How much of the sweets of life do I lose in being separated from them! After, however, having stayed so long, I had better give my attention a week or two longer.

6

July 6th, Monday. — Came early to the Hall in order to send my letters to the. post-office. Dr. Johnson and some other members came in; familiar chat to the time or the meeting of the Senate. The judiciary was taken up and the residue of it passed without any interesting debate. Our Vice-President called for the sense of the House when it should be read the third time. The members showed plainly that they considered it as not having been touched in Senate on second reading; all that had passed having only been in committee. The Vice-President insisted that the bill had been twice read. So it certainly had, but the second reading was in a committee of the whole Senate. He said former bills had been treated just as he wanted this one treated. We knew, or at least I knew, that this was not the case. He showed a peevish obstinacy, as I thought. He does not like the doctrine of a committee of the Senate; nor has he ever submitted to it, for he ought to leave the chair. To-morrow, however, was assigned for the third reading, with a kind of saving privilege to make amendments.

Mr. Morris came in a little before we broke up. He put into my hands the letter and remarks of our Chief-Justice on the judiciary, directed to us jointly. But the Attorney-General's remarks and Judge Hopkinson's I have not yet had the opportunity of perusing. Thursday [is] assigned for the bill for Foreign Affairs, Friday for the Department of War, and Monday next for the Treasury Department.

7

July 7th. — Attended the Hall at the usual time. The judiciary was taken up for a third reading. I can scarcely account for my dislike for this bill, but I really fear it will be the gunpowder-plot of the Constitution. So confused and so obscure, it will not fail to give a general alarm. Elsworth has led in this business, backed with Strong, Patterson, Read often, Bassett seldom. We came to the clause which allowed the District Judges to sit on the hearing of appeals from themselves. I did not rise to oppose this. Grayson, however, got hold of it, and hammered hard at it. Bassett rose, and took partly the same side. Now I thought the matter in a hopeful way. Elsworth immediately drew an amendment, as he said, to cure their objections, though it was nothing like the matter. I drew a clause nearly in these words: "Provided that no District Judge shall sit on the rehearing of any case formerly adjudged by him." We got Elsworth's motion postponed to put a question on it. It was agreed that the sense of the House should be taken on this. We carried it, and I rose and said, since the sense of the House was declared on this subject, I wished some of the gentlemen of the bar to frame a clause in the spirit of the determination; that the effect of the determination would reach further than the present clause, for it would prevent the Circuit Judge from sitting in the Supreme Court on an appeal where he had given original judgment. This was agreed to, so we killed two birds with one stone. The most trifling word-catching employed us till after three o'clock.

I can not help observing, under this day's head, that Mr. Phils, the late Naval Officer of Philadelphia, brought this morning most ample extracts of the trade of that port for the last year. He said there were copies sent him for his own use, but that at an early period he made out a set and delivered them to the President of the State to be forwarded to Congress, and he said they were actually forwarded. I could only say I never saw them, although I used all diligence to possess myself of every paper that could give me the smallest information.

Received letters this day from Harrisburg, and from Baltimore all well.

8

July 8th. — Attended the Hall this day as usual. The judiciary was taken up. Elsworth by far more accommodating this day than I ever knew him. We sat the usual time, but the debate was very trifling, indeed, and not one worth committing to paper. The Chief-Justice of Pennsylvania, Mr. Wilson, Myers Fisher, the Speaker, Mr. Peters, Tench Coxe, and sundry others have in their letters approved of the general outlines of the bill. Any amendments which they have offered. have been of a lesser nature. I own [that] the appropriation of so many men of character for abilities has lessened my dislike of it, yet I can not think of the expense attending it, which I now consider as useless, without a kind of sickly qualm overshadowing me. Bradford's and Judge Hopkinson's remarks I have not yet seen, nor need I now care for them, as we will probably finish it to-morrow. Would that I had finished business so far as to be able to return home to-morrow! I find, however, I must stay yet a little longer. This is painful, but, all things considered, I can not help it.

Warm plaster for obstinate, fixed rheumatic pains, made by melting over a pan an ounce of gum plaster and two drachms of blistering plaster, spread on soft leather and applied to the part affected; taken off and wiped once in three or four days, and renewed once a fortnight.

9

July 9th. — Still much afflicted with rheumatism. Attended this day the usual time at the Hall. A great part of this day was taken up with light debates, chiefly conducted by the lawyers on both sides, and the object seemed to be the increasing the powers of chancery. Mr. Read, a man of obstructed elocutions, was excessively tedious. Elsworth has credit with me. I know not, however, whether it be the effect of judgment, whim, or caprice, but he is generally for limiting the chancery powers. Mr. Morris and myself differed in every vote this day. We always have differed on the subject of chancery.

This day I got copies of the three bills for the great departments. Besides being calculated on a scale of great expense, two grand objections offer themselves on these bills the lessening of the power of the Senate, taking away from them any vote in the removal of officers, and the power of advising and consenting in one ease of the first consequence; and the other the placing the President above business and beyond the power of responsibility, putting into the hands of his officers the duties required of him by the Constitution. Indeed, these appear to me to have been the moving reasons for bringing forward the bill at all. Nor do I see the necessity of having made this business a subject of legislation. The point of view in which it has presented itself to me was that the President should signify to the Senate his desire of appointing a Minister of Foreign Affairs, and nominate the man And so of the ether necessary departments. If the Senate agreed to the necessity of the office and the men, they would concur; if not, they would negative, etc. The House would get the business before them when salaries came to be appointed, and could thus give their opinion by providing for the officers or not. I see this mode might be abused. But for the House of Representatives, by a side-wind, to exalt the President above the Constitution, and depress the Senate below it, is — but I will leave it without name. They know the veneration entertained for General Washington, and believe the people will be ready to join in the cry against the Senate, in his favor, when they endeavor to make him a party. They think they have fast hold of us, and that we dare not refuse our assent to these bills, and so several of them have not failed to declare.

10

July 10, 1789. — This day the lawyers showed plainly the cloven foot of their intentions in the House [Senate]. Read, Bassett, Patterson, Johnson, Grayson, and others, had got a hasty kind of amendment passed late yesterday. The amount. of it was that in the Circuit Courts, under the name of equity they should have all the depositions copied and sent up on an appeal to the Supreme Court, as evidence on the rehearing of facts, or words to that import. I had some conversation with Elsworth in the morning about it, and offered to him to move for a reconsideration of the matter. He wished to reserve this business for himself, however. He accordingly moved the reconsideration in a lengthy speech, and was seconded by Strong. At it now they went; and until after three scarce a word could be got in edgewise, for the lawyers. Butler, though lame, bounced up twice. I wished to speak, but could not get leave. The Vice-President got up in his chair. I rose and told him I wished to say a word or two:

"Sir, I am no professed admirer of the judicial system before you, but the best part of it is the Circuit Courts. These, sir, the amendment of yesterday will render abortive. The seeds of appeal, and the materials, too, provide for every cause. The system of delay is so firmly established, and the certainty of procrastination such, that justice can never be obtained in it. Let us follow the scheme a moment: The dispositions are taken and carried up six hundred or seven hundred miles to a Federal court. But, by the law, they can not be used, if the party is able to attend. The witness is subpoenaed, but does not attend. An attachment issues, but the party will kill the messenger, run to the woods, fly to the Indians, rather than attend. Well, but the court can issue a dedimus potestatem, and commissioners may be appointed; and in three or four years the testimony may be collected. Well, and what now? Is the fact to be tried by chancery powers? I am bold to say that no issue of fact was ever tried or found, for or against, in chancery. Facts often were carried into chancery, as evidence, but if they were doubted of, issue was joined on them, and directed to be tried by a jury. But now the business unfolds itself. Now we see what gentlemen would be at It is to try facts on civil-law principles, without the aid of a jury, and this, I promise you, never will be submitted to." The question was put, and we carried it. But the House seemed rather to break up in a storm.

[Here a leaf of the Maclay journal, under the date of Saturday, July 10th, has been destroyed. The next entry is made under date of July 11, 1789, as follows]

11

"Should go to the nearest stack of wheat, rye, hay, straw, or such like material, and draw out two stems, one in the name of each party, and the longest should win the cause." He showed it to me. I gave him a hearty laugh of approbation. Not, indeed, that I admired either the wit or novelty of it; but I considered it as the index of a sure vote. But I was mistaken. He voted against us, and the clause was lost.

I could see an air of triumph in the visages of gentlemen of the bar, Elsworth excepted, who has really credit with me on the whole of this business. The part he has acted in it I consider as candid (bating his caballing with Johnson), and disinterested. Mr. Lee, of Virginia, was for the clause, and spoke well. As we came down the stairs, Dr. Johnson was by my side. "Doctor," said I, "I wish you would leave off using these side-winds, and boldly, at once, bring in a clause for deciding all causes on civil-law principles, without the aid of a jury." "No, no," said he, "the civil law is a name I am not very fond of." I replied, "You need not care about the name, since you have got the thing."

12

July 12th, Sunday. — I was ill last night. My swelled knee gave me great pain, and prevented my rest. Put on flannels, and stayed at home all day. Had no book but Buchan's Family Physician. Read a good deal in it. What a lazar-house the world is! Surely the pleasures of life are as chaff, in the balance against ponderous lead, compared with the ills and dolors of the human race. Infinite Wisdom surely shows us but a small part of her works. There must be a balance somewhere. Or shall we view it in another light — that the only good we enjoy is the effect of prudence? Alas! she does not always command it. It is vain, however, to rend the impenetrable veil that conceals the mysterious ways of Providence. My dear family, I wish I were with you.

13

July 13th. — I forgot to minute yesterday that, late in the afternoon, Charles Thompson visited me. We had much chat of the political kind. He showed a great disposition to go into the field of the President's power. He was dearly of opinion that the President ought to remove all officers, etc. Indeed, he said so much on this subject that I had like to have entertained a suspicion that he came on purpose to sound, or rather prepare, me on the subject. I agreed to sundry of his observations, at the same time dissented, in plain but not pointed terms, from some other things. Perhaps this is the best way, on the whole, for an independent man to act. Honesty, on the whole, is the best policy. I really feel for Mr. Thompson's situation. A man who has been the graphic faculty of the old Congress, the hand and pen of that body from their first organization, and who — I feel a kind of certainty of the fact — wishes to die in an eminent office, would not suffer his friends to continue him Secretary of the Senate, and his enemies have taken advantage of it and declared him out of office, and mean to keep him so. It was certainly bad policy of him to refuse the offer of his friends. The political door is harder to be opened than any other if once it is thrown in a man's face.

The Senate met, and Mr. Bassett's motion with respect to the effect of a writ of error as a supersedeas to an execution was taken up. Mr. Read spoke long in support of the motion. Mr. Elsworth equally long against it. I rose and made sundry remarks, and the amendment was carried. It was not a material one in the bill, however. While the minutes were reading, I stepped to Elsworth and asked if he would not join me in an attempt to regain the clause we had lost on Saturday. He paused a little and said he would.

Mr. Elsworth rose and spoke long on the subject of the necessity of a discrimination or some boundary-line between the courts of chancery and common law. He concluded with a motion nearly in the words of the clause we had lost. Mr. Lee and myself both rose to second the motion. Mr. Lee, however, sat down and left me up. I therefore determined to avail myself of my situation and say something. Declared my concurrence of sentiment for limited chancery strictly. As the bill stood, chancery was open to receive everything. In England, where by the letter of the law no suit could be brought in chancery if the common law afforded a remedy, yet such was the nature of that court, and so advantageous had it been found to the practitioners, that it had encroached greatly on the common law. Gentlemen would not consider this as an inconvenience. So high were their ideas of English jurisprudence they said all the world admired it, and every member of this House must admire it. (This was Dr. Johnson's language on Saturday.) I was ready to admire it too, but I would first endeavor to describe it.

It [English jurisprudence] consisted of a great number of grades of courts rising in succession over each other, Common Pleas, King's Bench, Exchequer, Chancery, etc., so admirably organized and connected that the one was generally ready to begin where the other ended, and so formed that as long as a client had money he might purchase, delay, or, in other words, get law for it; that in England at this time it was rather a trial of the depth of purse than right, and, accordingly, nothing was more common than for a man who was going to law to calculate and compare his pecuniary resources with his adversary's. The cost, however, being fairly counted, and neither party afraid, at it the angry men go. As they are eager, and bleed freely, they mount, perhaps, with tolerable rapidity, until they arrive in the regions of chancery. But here their bills are filed and all their facts collected, and in some half-dozen years, it may be, a judgment is given. But mark, the first judgment is seldom or never final. Here, then, a number of facts must be adjusted, and some ten or twenty issues in feigned wagers must be tried in the King's Bench. In some three or four years a new cargo of facts is furnished. The examiner goes to work and spends some two or three years. The Chancellor, too, perhaps, must have the opinion of the Judges of the King's Bench. Here is a new trial. But at last he gives a judgment. But two of the counsel sign a petition for a rehearing, and the whole business must be gone over again. But is the business done? No such thing. Another petition comes in for a "review," and the whole business must be gone over a third time.

Here I was interrupted by the Vice-President, who said there was an instance of a cause being finished by the present Chancellor in his lifetime. I answered quick, One swallow does not make a summer, Mr. President, and went on. But are they done yet? No such thing. The House of Lords is before them, and by the time they get out of the far end of it one or both are completely ruined. This is the progress of your wealthy parties, where plum is matched to plum. But what of your unequal matches — your poor and rich parties? Why, sir, if the relative wealth of one is to that of the other as four to one, the poor man will get about one fourth part of the way. If as two to one, half-way; if as three to four, three fourths of the way before the exhausted party drops off into ruin. (Here, by way of illustration, I repeated the Annesley cause.) For never was so admirable a machine contrived by the art of man to use men's passions for the picking of their pockets and to bring their justice into trade. The present bill before you has been considered as enjoying perfection in proportion as it approaches the British system. Sir, I have given you the opinion which I know many sensible Americans entertain of the system of English jurisprudence. With such people, English features will be no recommendation of the bill. Sir, I can not boast a general knowledge of the sentiments of men in the Union. From what I know of my own State, I am confident a great majority abhor chancery. Those whom I have generally heard advocate the chancery were professional men. I really believe that this was the case generally over the Union. I know many people complained of chancery in the Jerseys. One hundred and twenty-six pounds had been paid lately for taking the testimony only in a chancery suit in that State. Suits had been pending thirty years in their chancery, and had cost thousands; that I was clearly of opinion that everything after the verdict of a jury was a mere trap to catch fees, and might be styled the toils of the law, added to perplex the truth. The bill, however, before you, as it now stands, is not chancery. It is something much worse. The line between chancery and common law is broken down. All actions may now be tried in the Federal courts by the judges without the intervention of a jury. The trial by jury is considered as the birthright of every American. It is a privilege they are fond of, and, let me add, it is a privilege they will not part with.

This day the committee for considering our commercial injuries reported. I do not like it. The end is answered, perhaps, for which the stir was made, when this committee was appointed, and now the business ends in a bubble. I will, however, get a copy of the report before I pronounce on it.

14

July 14th. — The Senate met, and one of the bills for organizing one of the public departments — that of Foreign Affairs — was taken up. After being read, I begged leave of the Chair to submit some general observations, which, though apparently diffuse, I considered as pertinent to the bill before us, the first clause of which was, "There shall be an Executive Department," etc. There are a number of such bills, and may be many more, tending to direct the most minute particle of the President's conduct. If he is to be directed, how he shall do everything, it follows he must do nothing without direction. To what purpose, then, is the executive power lodged with the President, if he can do nothing without a law directing the mode, manner, and, of course, the thing to be done? May not the two Houses of Congress, on this principle, pass a law depriving him of all powers? You may say it will not get his approbation. But two thirds of both Houses will make it a law without him, and the Constitution is undone at once.

Gentlemen may say, How is the Government then to proceed on these points? The simplest in the world. The President communicates to the Senate that he finds such and such officers necessary in the execution of the Government, and nominates the man. If the Senate approve, they will concur in the measure; if not, refuse their consent, etc., when the appointments are made. The President, in like manner, communicates to the House of Representatives that such appointments have taken place, and require adequate salaries. Then the House of Representatives might show their concurrence or disapprobation, by providing for the officer or not. I thought it my duty to mention these things, though I had not the vanity to think that I would make any proselytes in this stage of the business; and, perhaps, the best apology I could make was not to detain them long. I likewise said that, if the Senate were generally of my mind, a conference between the Houses should take place. But the sense of the House would appear on taking the question upon the first clause. The first clause was carried.

Now came the second clause. It was for the appointment of a chief clerk by the Secretary, who, in fact, was to be the principal, "whenever the said principal officer shall be removed. from office by the President of the United States." There was a blank pause at the end of it. I was not in haste, but rose first: Mr. President, whoever attends strictly to the Constitution of the United States, will readily observe that the part assigned to the Senate was an important one — no less than that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this Government. In their legislative capacity they not only have the concoction of all bills, orders, votes, or resolutions, but may originate any of them, save money bills. In the executive branch they have likewise power to check and regulate the proceedings of the President. Thus treaties, the highest and most important part of the Executive Department, must have a concurrence of two thirds of them. All appointments under the President and Vice-President, must be by their advice and consent, unless they concur in passing a law divesting themselves of this power. By the checks which are intrusted with them upon both the Executive and the other branch of the Legislature, the stability of the Government is evidently placed in their hands.

The approbation of the Senate was certainly meant to guard against the mistakes of the President in his appointments to office. I do not admit the doctrine of holding commissions 'during pleasure' as constitutional, and shall speak to that point presently. But, supposing for a moment, that to be the ease, is not the same guard equally necessary to prevent improper steps in removals as in appointments? Certainly, common inference or induction can mean nothing short of this. It is a maxim in legislation as well as reason, and applies well in the present ease, that it requires the same power to repeal as to enact. The depriving power should be the same as the appointing power.

But was this a point left at large by the Constitution? Certainly otherwise. Five or six times in our short Constitution is the trial by impeachment mentioned. In one place, the House of Representatives shall have the sole power of impeachment. In another, the Senate shall have the sole power to try impeachments. In a third, judgment shall not extend further than to removal from office, and disqualification to hold or enjoy offices, etc. The President shall not pardon in eases of impeachment. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment, etc. No part of the Constitution is so fully guarded as or more clearly expressed than this part of it. And most justly, too, for every good Government guards the reputation of her citizens as well as their life and property. Every turning out of office is attended with reproach, and the person so turned out is stigmatized with infamy. By means of impeachment a fair hearing and trial are secured to the party. Without this, what man of independent spirit would accept of such an office? Of what service can his abilities be to the community if afraid of the nod or beck of a superior? He must consult Iris will in every matter. Abject servility is most apt to mark the line of his conduct, and this on the one hand will not fail to be productive of despotism and tyranny on the other; for I consider mankind composed nearly of the same materials in America as in Asia, in the United States as in the East Indies. The Constitution certainly never contemplated any other mode of removing from office. The ease is not omitted here; the most ample provision is made. If gentlemen do not like it, let them obtain an alteration of the Constitution; but this can not be done by law.

If the virtues of the present Chief Magistrate are brought forward as a reason for vesting him with extraordinary powers, no nation ever trod more dangerous ground. His virtues will depart with him, but the powers which you give him will remain, and if not properly guarded will be abused by future Presidents if they are men. This, however, is not the whole of the objection I have to the clause. A chief clerk is to be appointed, and this without any advice or consent of the Senate. This cider clerk, on the removal of the Secretary, will become the principal in the office, and so may remain during the presidency, for the Senate call not force the President into a nomination for a new officer. This is a direct stroke at the power of the Senate. Sir, I consider the clause as exceptional every way, and therefore move you to strike it out.

Langdon jumped up in haste; hoped the whole would not be struck out, but moved that the clause only of the President's removing should be struck out. Up rose Elsworth, and a most elaborate speech indeed did he make, but it was all drawn from writers on the distribution of government. The President was the executive officer. He was interfered with in the appointment, it is true, but not in the removal. The Constitution had taken one, but not the other, from him. Therefore, removal remained to him entire. He carefully avoided the subject of impeachment. He absolutely used the following expressions with regard to the President: "It is sacrilege to touch a hair of his head, and we may as well lay the President's head on the block and strike it off with one blow." The way he came to use these words was after having asserted that removing from office was his (the President's) privilege, we might as well do this as to deprive him of it. He [Elsworth] had sore eyes, and had a green silk over them. On pronouncing the last of the two sentences, he paused, put his handkerchief to his face, and either shed tears or affected to do so.

When he sat down both Butler and Izard sprang up. Butler, however, continued up. He began with a declaration that he came into the House in the most perfect state of indifference, and rather disposed to give the power in question to the President. But the arguments of the honorable gentleman from Connecticut [Elsworth], in endeavoring to support the clause, had convinced him, in the clearest manner, that the clause was highly improper, and he would vote against it. Izard now got at it, and spoke very long against the clause. Strong got up for the clause, and a most confused speech he made, indeed. I have notes of it, but think it really not worth answering, unless to show the folly of some things that he said. Dr. Johnson rose and told us twice before he proceeded far that he would not give an opinion on the power of the President. This man's conscience would not let him; he is a thorough-paced courtier, yet he wishes not to lose his interest with the President. However, his whole argument went against the clause, and at last he declared he was against the whole of it. Mr. Lee rose. He spoke long and pointedly against the clause. He repeated many of my arguments, but always was polite enough to acknowledge the mention I had made of them. He spoke from a paper which he held in his hand. He continued until it was past three o'clock, and an adjournment was called for and took place.

In looking over my notes I find I omitted to set down sundry arguments which I used. But no matter; I will not do it now.

15

July 15th. — Senate met. Mr. Carrol showed impatience to be up first. He got up and spoke a considerable length of time. The burden of his discourse seemed to be the want of power in the President, and a desire of increasing it. Great complaints of what is called the atrocious assumption of power in the States. Many allusions to the power of the British kings. The king can do no wrong. If anything improper is done, it should be the Ministers that should answer. How strangely this man has changed!

The Collection bill was called for and read for the first time. Now Elsworth rose with a most lengthy debate. The first words he said were, "In this case the Constitution is our only rule, for we are sworn to support it." But [he] neither quoted it nor ever named it afterward except as follows. He said by allusion, "I buy a square acre of land. I buy the trees, water, and everything belonging to it. The executive power belongs to the President. The removing of officers is a tree on this acre. The power of removing is, therefore, his. It is in him. It is nowhere else. Thus we are under the necessity of ascertaining by implication where the power is." He called Dr. Johnson Thomas Aquinas by implication, too, and said things rather uncivil to some other of his opponents. Most carefully did he avoid entering on the subject of impeachment. After some time, however, he got fairly on new ground. Lamented the want of power in the President. Asked, Did we ever quarrel with the power of the Crown of Great Britain? No, we contended with the power of the Parliament. No one ever thought the power of the Crown too great. [He] said he was growing infirm, should die, and should not see it, but the Government would fail for want of power in the President. He would have power as far as he would be seen in his coach-and-six. "We must extend the executive arm." (Mr. Lee yesterday had said something about the Dutch.) "If we must have examples," said he, "let us draw them from the people whom we used always to imitate; from the nation who have made all others bow before them, and not from the Dutch, who are divided and factions." He said a great deal more, but the above is all I minuted down at the time. Mr. Izard rose and answered. Mr. Butler rose and spoke. It was after three. Mr. Lee rose; said he had much to say, but would now only move an adjournment. As it was late, the House accordingly adjourned.

I have seen more caballing and meeting of members in knots this day than I ever observed before. As I came upstairs, Elsworth, Ames, and Mr. Morris stood in a knot. Soon afterward Elsworth, Carrol, and Strong got together. As soon as the House adjourned, Carrol took Patterson aside, and there seemed a general hunt and bustle among the members. I see plainly public speaking on this subject is now useless, and we may put the question where we please. It seems as if a court party was forming; indeed, I believe it was formed long ago.

16

July 16th. — Attended pretty early this morning. Many were, however, there before me. It was all huddling away in small parties. Our Vice-President was very busy indeed; running to every one. He openly attacked Mr. Lee before me on the subject in debate, and they were very loud on the business. I began to suspect that the court party had prevailed. Senate, however, met, and at it they went. Mr. Lee began, but I really believe the altercation, though not a violent one, which he had with the Vice-President had hurt him, for he was languid and much shorter than ever I had heard him on almost any subject. Mr. Patterson got up. For a long time you could not know what he would be at. After, however, he had warmed himself with his own discourse, as the Indians do with their war-songs, he said he was for the clause continuing. He had no sooner said so than he assumed a bolder tone of voice; flew over to England; extolled its Government; wished, in the most unequivocal language, that our President had the same powers; said, let us take a second view of England; repeating nearly the same thing. Let us take a third view of it, said he. And then he abused Parliament for having made themselves first triennial and lastly septennial. Speaking of the Constitution, he said expressly these words, speaking of the removing of officers: "There is not a word of removability in it." His argument was that the Executive held this as a matter of course.

Mr. Wyngate got up and said something for striking out. Mr. Read rose, and was swinging on his legs for an hour. He had to talk a great deal before he could bring himself to declare against the motion. But now a most curious scene opened. Dalton rose and said a number of things in the most hesitating and embarrassed manner. It was his recantation; [he] had just now altered his mind. From what had been said by the honorable gentleman from Jersey, he was now for the clause. Mr. Izard was so provoked that he jumped up; declared nothing had fallen from that gentleman that could possibly convince any man; that men might pretend so, but the thing was impossible.

Mr. Morris' face had reddened for some time. He rose hastily, threw censure on Mr. Izard; declared that the canting man behaved like a man of honor; that Patterson's arguments were good and sufficient to convince any man. The truth, however, was that everybody believed that John Adams was the great converter.

But now recantation was in fashion. Mr. Bassett recanted, too, though he said he had prepared himself on the other side. We now saw how it would go, and I could not help admiring the frugality of the court party in procuring recantations, or votes, which you please. After all the arguments were ended and the question taken the Senate was ten to ten, and the Vice-President with joy cried out, "It is not a vote!" without giving himself time to declare the division of the House and give his vote in order. Every man of our side, in giving his sentiments, spoke with great freedom, and seemed willing to avow his opinion in the openest manner. Not a man of the others who had made any speech to the merits of the matter, but went about it and about it. I called this singing the war-song, and I told Mr. Morris I would give him every one whom I heard sing the war-song; or, in other words, those who could not avow the vote they were fully minded to give until they had raised spirits enough by their own talk to enable them to do it. Grayson made a speech. It was not long, but he had in it this remarkable sentence: "The matter predicted by Mr. Henry is now coming to pass: consolidation is the object of the new Government, and the first attempt will be to destroy the Senate, as they are the representatives of the State Legislatures."

It has long been a maxim with me that no frame of government whatever would secure liberty or equal administration of justice to a people unless virtuous citizens were the legislators and Governors. I live not a day without finding new reason to subscribe to this doctrine. What avowed and repeated attempts have I seen to place the President above the powers stipulated for him by the Constitution!

The vote stood: For striking out — Butler, Izard, Langdon, Johnson, Wyngate, Few, Gunn, Grayson, Lee, Maclay — ten. Against striking out: Read, Bassett, Elsworth, Strong, Dalton, Patterson, Elmer, Morris, Henry, Carrol — ten; and John Adams.

I replied to a number of their arguments, and the substance of it is on the adjoining loose sheet. Of all the members of the House, the conduct of Patterson surprised me most. He has been characterized to me as a stanch Revolution man and genuine Whig; yet he has in every republican question deserted and in some instances betrayed us. I know not that there is such a thing as buying members, but, if there is, he is certainly sold.

I never was treated with less respect than this day. Adams behaved with studied inattention. He was snuffling up his nose, kicking his heels, or talking and sniggering with Otis the whole time I was up. Butler — though no man bears a thing of this kind with less temper — engaged Wyngate, Izard, and his end of the table in earnest conversation. Elsworth, Bassett, and Read formed another knot. Mr. Morris went out. The doorkeeper was kept on a continual trot, calling out Strong, Patterson, Henry, Carrol, etc. I might have said more, but it was useless.

17

July 17th. — Attended at the Hall half after nine o'clock. We read and corrected the long judiciary. The Senate met at the usual time. This same judiciary was taken up and went over. And now Mr. Butler rose against it; Mr. Grayson spoke against it, and Mr. Lee was more pointed than any of them. Had Mr. Lee joined us in my objections against it at an early period, perhaps we might have now had it in better form. Mr. Butler offered a motion for leave for any member to enter his dissent on the minutes. This proved a most lengthy debate. It was four o'clock before it was decided. He lost his motion. I thought it right. And now Mr. Lee, Mr. Grayson, Mr. Butler, and Mr. Wyngate rose for the yeas and nays on the Judiciary bill. They were given; I was in the negative.

I opposed this bill from the beginning. It certainly is a vile law system, calculated for expense and with a design to draw by degrees all law business into the Federal courts. The Constitution is meant to swallow all the State Constitutions by degrees, and thus to swallow, by degrees, all the State judiciaries. This, at least, is the design some gentlemen seem driving at. O sweet Candor, when wilt thou quit the cottage and the lisping infant's lips and shed thy glory round the statesman's head? Is it inscribed on human fate that man must grow wicked to seem wise; and must the path of politics be forever encumbered with briers and thorns?

I had been much pressed to dine with the Speaker in a company of Pennsylvanians. I went there and sat till six. I am a poor string in a convivial concert. My lame knee will neither let me eat nor drink. I am old, and ought to know it. I became quite tired with the voluble tattle of the table. I never had much, but now much less, taste for convivial joys. Some of the company grew very talkative before I left them, particularly the Governor of the Western Territory. He must soon sink in the public opinion if he conducts himself as he did this evening. He was tediously talkative, and dwelt much on the fooleries of Scottish antiquity, and, what was worse, showed ill-nature when he was laughed at.

18

July 18th. — We had some debate yesterday about the adjournment. It was agreed to sit this day expressly with a design to take up the Collection bill. As soon as the minutes were read, Mr. Morris called for it and I seconded it. But Elsworth called for the bill on foreign affairs (as he was sick and wanted a few days' absence, and Bassett, who had stayed over the time he expected, was likewise going out of town). We had now much curious conversation. Mr. Grayson made some remarks on our mode of doing business. Our doors were shut, and a member was debarred the privilege of a protest. We were shut up in conclave. We, however, have often had this business before us. The Vice-President, however, took occasion to get up and gave us his history of protests. He said the House of Lords only had that right; they had it in the feudal right. They were originally an armed militia for the defense of the country, and were supposed to be possessed of everything honorable. But, as to the Scotch peers, that was a piece of patchwork. The Senate were an elective body, and their motives would be to preserve their popularity in order to secure their elections, and therefore they ought not to have any power of protesting.

Elsworth made a second motion that the bill for foreign affairs should be postponed till Wednesday fortnight. Langdon seconded this. Sundry gentlemen, however, called for the bill. The Vice-President put the question on the bill and it was taken up. The gentlemen against the bill, [were] Mr. Izard, Langdon, and Johnson, declared all they wished was the yeas and nays in the same form as they had passed yesterday, the Vice-President giving the casting vote. Elsworth proposed that Bassett should withdraw, and then there would be a he. Bassett did not like it.

Elsworth proposed to withdraw, and actually did so. All this was occasioned by the absence of Butler. And now the yeas and nays were taken on the words, "by the President." Our Vice-President gave the casting vote. Mr. Lee moved an amendment in the fore part of the bill which did not seem well digested. It was lost, of course. The amount of it was that the officer should be responsible. I arose and said I could not consent to it, for by the third clause of the bill the officer was made such an abject creature, so dependent on the nod of a superior, I thought it cruel to make him in any degree responsible for measures in which he could have no free agency. lie had been called servant. He was more — he was the creature of the President. The President was the responsible officer by the Constitution. It had been said no use would be made of this. I hoped there never would be any occasion; but respondeat superior was a maxim in law, and I supposed we would have to trust to it. Mr. Langdon moved to strike out "to be appointed by the said principal officer." I could not see what he aimed at. Dr. Johnson got up and complained of the approbation of the President in the last part of the clause as reflecting on the Senate, to whom the Constitution had given the power of approving.

I doubted whether I should rise or no, thinking all opposition vain. I determined, however, to speak: Mr. President, this clause calls the chief clerk an inferior officer. I think differently of him. This, sir, will be the man who will do the business. In England, sir — that country from which we are so fond of taking examples — the chief clerks do the business; so much so that, on an eminent character being told by a person who seemed in concern on the occasion that the Ministry were changed, asked gravely if the clerks in the office were changed; being answered no. Give yourself no further uneasiness, then; the business will meet with no interruption. So will it be here. The calling him an inferior officer, however, paves the way for his appointment by the head of the department. But what is the use of the clause here? I think freely and freely will I speak. The Secretary appoints his clerk, of course, and the clerk, of course, will take care of the office records, books, and papers, even if the principal should be removed. They are to be under oath or affirmation faithfully to execute the trust committed to them. It is not to be presumed that they will abandon the papers to the winds. What, then, is the use of the clause? Clearly to put it into the power of a President, if so minded, to exercise this office without the advice or consent of tim Senate as to the affair. The consent of the President at the end of the clause points out this clearly. This is a kind of a consent unwarranted by the Constitution. The President removes the principal — the clerk pleases him well, being a man of his approbation. The Senate can not force him to a nomination, and the business may proceed during his presidency. The objects ostensibly held out by the bill are nugatory. The design is but illy concealed. It was for these reasons I formerly moved to strike out this clause, and I am still averse to the whole of it.

Patterson got up, said the latter part of the clause, perhaps, was exceptionable, and he would have no objection to strike it out. Mr. Morris rose and said something to the same import; but as Dr. Johnson had glanced somewhat at the conduct of the other House, and as what I had said leaned the same way, Mr. Morris said whatever the particular view might be of the member who brought in this clause, he acquitted the House, in general, of any design against the Senate. Mr. Elsworth rose and said much more on the same subject. I rose and said I thought nothing on this subject which I would not avow. The House of Representatives had debated four days on a direct clause for vesting the President with this power; and, after having carried it with an open face, they dropped and threw out the clause, and have produced the same thing, cloaked and modified in a different manner by a side-wind. I liked, for my part, plain dealing, and there was something that bore a very different aspect in this business.

19

July 19th, Sunday. — Determined to set off home, come what would. Went for Mr. Morris' lodgings; he was out of town. Visited Mr. Butler, who lives just by him. Visited Mr. Clymer, who was just returned from Philadelphia. Called on Mr. Izard on my way home. He was most violent on the subject of our late measures. He abhors our Vice-President. Came home. Read mostly in the afternoon. Visited by the Speaker, General St. Clair, Delany, Macpherson, and sundry other gentlemen. My health requires a journey home. But I this day read the story of Father Nicholas in The Lounger. I am no St. Hubert, no sinner known, no Delasmus or Turnvilles. But this story had an effect on me. I will go and see my family.

20

July 20th, Monday. — Asked leave of absence for three weeks account of my health. Obtained it without difficulty. I remained some time in my place after business was over, to give an opportunity to any of the members who chose it to wish me a good journey, or to speak to me on business if they had any. Henry, of Maryland, and a group soon gathered about me. They seemed to think that my going was owing to disaffection to public measures as much as to indisposition. This I would not own but in [a] qualified sense; that my disappointment with respect to public measures and constant vexation had perhaps aggravated my indisposition.

Fun now let loose her frolics upon me, and who of all the human race will thank you for that? Not one in a thousand will believe a word of it, and if any do they will call you a fool for your pains. "Gratitude no governing principle among the humanum pecus. Fear only the parent of obedience among the herd of mankind. The hangman in this world and the devil in the next. Republican theories well enough in times of public commotion or at elections; but all sensible men once in power know that force is the only effectual means to secure obedience. Hence has flowed, and forever will flow, the failure of republican government. Oligarchies and aristocracies follow till monarchy tops the system, and will continue till some unskillful driver overloads the ass, and then the restive beast throws both itself and the rider in the mire, and the old process begins." "A Senator will be elected in your place before long," said one. "Your patriotism will be of great service to you then. A single dinner given by a speculator (people who do not like you) will procure ten votes where your disinterestedness has not procured you one. And you must intrigue and cabal as deep as, and deeper too, than your adversaries, or we will not see you here again. Is there a single one of the majestic mob who will not belie, defraud, deceive, and cheat you for the smallest interest? Health is too great a sacrifice for such a herd."

The whole was delivered with so comic an air that a serious answer seemed improper, and yet I wished to say something, and, for the sake of harmony, if possible in the same key: Gentlemen, I have at home good neighbors. Good —

[Here a leaf from the journal has been torn out. The next entry is made on the return of Senator Maclay to New York, August 16th.]

August

August 1789
Mon	Tue	Wed	Thu	Fri	Sat	Sun
					1	2
3	4	5	6	7	8	9
10	11	12	13	14	15	16
17	18	19	20	21	22	23
24	25	26	27	28	29	30
31

16

August 16th, Sunday. — Came to New York at ten o'clock at night, greatly fatigued with my journey. Went after breakfast to Mr. Morris' lodgings. He was abroad. Called on Mr. Clymer at his lodgings, and left his and Mr. Fitzsimons' letters. Called to see Mr. Scott and Ellicott; both abroad. Called on Mr. Izard. He gave me a short history of the court party which (as might be expected) is gaining ground. A conference has been held with the President, in which Mr. Izard declares that the President owned he had consulted the members of the House of Representatives as to his nominations, but likewise said he had not acted so with the Senators, as they could have an opportunity of giving their advice and consent afterward.

This small anecdote serves to divulge his [Washington's] conduct, or rather to fix my opinion of his conduct, for some time past, to wit, a courtship of and attention to the House of Representatives, that by their weight he may depress the Senate and exalt [his] prerogatives on the ruins. Mr. Izard was clearly of opinion that all the late measures flowed from the President. Mr. Madison, in his opinion, was deep in this business. The President showed great want of temper (as Izard said) when one of his nominations was rejected. The President may, however, be considered as in a great measure passive in the business. The creatures that surround him would place a crown on his head, that they may have the handling of its jewels.

Mr. Izard informed me of the attempt of Gorham to get the land commonly called the triangle [now Erie County] from Pennsylvania, or at least to delay the business until he could get a number of New England men to settle on it, so as to hold it by force and make a second Wyoming of it. He said Mr. Morris had got the business put off until Wednesday, expecting my coming to town. By his account a strong party is forming by Gorham, and they expect to carry it against Pennsylvania. I immediately left him, Sunday as it was, to call on Scott and Ellicott to prepare for this business. Could find none of them.

My haste and agitation on hearing of Gorham's affair prevented my noting all Mr. Izard's communications. He said all your measures are reprobated and will be rejected. Your voting by ballot, in agreeing to nominations, and so on. We have all been to dine with the great man. It's all disagreeable to him, and will be altered, etc. He gave clear hints of my loss of character at court, and in the direct influence of the President with the members of Congress, etc. For some time past (as the Indian said) I could see how the watches went, but I did not know before the way they were wound up. It was to counteract a growing influence which I observed to gain ground daily that I moved the consent to appointments to be given by ballot. The having carried this matter was passing the Rubicon in transgression, as it went to pluck up patronage by the roots, and to undo this is, it seems, a knot worthy of presidential interference.

A thought here on the subject of influence. Stripped of its courtly coloring, and it is neither more nor less than corruption. When Walpole debauched the British Senate (House of Lords), was it either morally or politically different whether he did it by court favor, loans, jobs, lottery-tickets, contracts, offices, or expectancy of them, or with the clinking guinea? The motive and effect were certainly the same. But Walpole was a villain. What, then, must be the man that follows his footsteps?

17

August 17, Monday. — Went out, although I was not very well. It was near nine o'clock before I could see Mr. Scott, and he was then in bed. I saw Mr. Morris, who had just received all the papers from Mr. Ellicott about the triangle [Erie County, Pennsylvania]. Not one of them had ever thought that Pennsylvania had actually purchased this land from the Indians. I called on General St. Clair, who will set this in a clear point of view, if they will not give us time to send to Philadelphia for the deed, etc.

Attended the Senate at the usual hour. The business agitated this day in the Senate was the bill for regulating the coasting trade. Some progress was made in it, when it was postponed, and the affairs of Georgia, with respect to the Indians, were taken up. Some warmth on this business. Sat until after four and adjourned.

18

August 18th, Tuesday. — Busy preparing for the debate on the triangle, which is to come on to-morrow. Senate met at the usual time. The bill for the Indian treaties was taken up, and considerable debate. I asked for information — for some estimate of the expense, but it seems none had been furnished. A motion was made for reducing the sum appropriated from forty to twenty thousand dollars, but no estimate appeared for either. I lamented my want of information, but declared I hoped the House of Representatives had some just grounds to go on when they voted the forty [thousand dollars]; that I would for once trust to them, since I must vote in the dark. But the twenty was carried. We then read over the penal law for the second time, and debated on it until the hour of adjournment.

19

August 19th, Wednesday. — Senate met, and went on the appointment of an officer to run the line of the triangle. I will not attempt a detail of the arguments, maps, resolves of Congress, contracts, etc., that were produced by us, which those who voted for us declared carried demonstration with them. We had every man east of the Hudson against us, and most of them speakers. Dr. Johnson, in particular, was very uncandid. Elsworth voted against us, but spoke but little. King and Schuyler managed the debate principally. Langdon was very often up. Every point on the paper annexed was canvassed, and a vast many more. I can not pretend to say how often I was up, but my throat was really sore with speaking. So plain a case I never before saw cost so much trouble. Under my present impression I am ready to vote every man void of principle who voted against this measure. At a quarter past three we got the resolve passed. I can not help writing that senatorial honor dwells not east of the Hudson. Strong was most uncandid and selfish, and often up. I wish I may soon have occasion to retract my above opinion; it is painful to think so badly of one's fellow-members.

The annexed paper: "An Act of Cession by the State of New York to the United States on the 1st March, 1781. Accepted by Congress on the 29th October, 1782."

Here showed that the cession was made on geographical principles by the map, and explain how the northwest corner of Pennsylvania came to be placed fifty (say fifty-four and a half) miles farther west, and how this company and the State of New York wish to avail themselves of that circumstance.

On the 18th of April, 1785, a cession of the same territory was accepted by Congress from the State of Massachusetts in the same words, only the Pennsylvania line was not mentioned, on a supposition that there was a vacancy of two minutes of a degree between them.

A meridian passing through the westerly bend of Lake Erie, or through a point twenty miles west of the most westerly bend of the Niagara River, one or the other must be the western limit of the State of New York, as the boundary is to be a meridian and must pass through one or other of these points.

On the 6th of June, 1788, Congress ordered the geographer of the United States to run the boundary-line, giving notice to the Executives of the States of New York and Massachusetts, and to make an accurate survey of the land lying west of the meridian between Lake Erie and the State of Pennsylvania, that the same might be sold. (Read the resolution.)

On the 16th of June, 1788, the geographer instructed Andrew Ellicott, Esq., to perform this service.

On the 7th of July, 1788, the State of Pennsylvania offered, by William Bingham and James Reed, three fourths of a dollar per acre for this land. (Read the offer.)

On the 28th of August, 1782, the Pennsylvania proposals were accepted and the bargain closed by the Board of Treasury. (Read the acceptance.)

On the 4th of September, 1788, Congress vested the right of jurisdiction over the said tract in the State of Pennsylvania. (Read the resolution.)

Pennsylvania, thus vested with the right both to soil and jurisdiction, pursued her usual system with regard to new lands; and, although it was said that Congress ought to quiet the claims of the Indians with respect to lands sold by them, she chose, in conformity to ancient usage, to purchase of the natives. General Butler and Colonel Gibson were appointed agents at the treaty of Muskingum, and the purchase of these lands was made. We have not the deeds and other documents to produce. If they are required, we will send for them. But General St. Clair, now in town, was present at making the contract, present at obtaining the deed, and present at the payment of the consideration at Fort Pitt.

The delay of making the survey keeps out of the Treasury of the United States about six hundred and twenty-five thousand dollars, the interest of which is about nine thousand dollars, specie, per annum; and the State of Pennsylvania is retarded in the settlement of the country. If Mr. Gorham or any individual is injured, a Federal court will soon be opened. But delays are attended with national as well as State disadvantages, and ought not to be protracted. Mr. Morris will vote with and support me. But it is strange that Gorham should be so often calling him out and holding conversations with him.

20

August 20th, Thursday. — This was a dull day in the Senate, and might be said to make amends for the bustle of yesterday. The Coasting Trade bill engaged us all day in a round of dullness. Hot one member seemed to understand the whole of it, so much had it been postponed and amended. It really rather seems a system for tolerating and countenancing smuggling than otherwise. I told them so, though I did not choose to embark much in it.

Mr. Lear has for two days past been introduced quite up to the Vice-President's table to deliver messages. Mr. Izard rose to know the reason of this. Our Vice-President said he had directed it to be so, and alleged, in a silly kind of manner, that he understood the House so. There was some talk about it a few days ago; but I understood the sense of the Senate to be that the "head of a department," if he came to deliver a message from the President, should be admitted to the table; but a private secretary received at the bar. It is not one farthing matter; but the Clerk of the Representatives is received at the bar, and I think him a more respectable character than any domestic of the President. Our Vice-President, however, never seems pleased but when he is concerned in some trifling affair of etiquette or ceremony. Trifles seem his favorite object, and Iris whole desire to be totas in illis.

21

August 21st, Friday. — The report of the committee that had conferred with the President was taken up. The most of it was where the President should sit on his being introduced into our chamber, and where our Vice-President should sit, etc. A second resolution was added, declaring that the Senate should give their advice and consent in all cases [to presidential nominations] viva voce vote. This being directly contrary to a former resolution which I had moved for, I rose and remarked that this matter had been solemnly debated formerly and decided in favor of a ballot when it carne to the single point of consenting to a man's nomination; that I was still of the same opinion, and would vote against the resolution. Izard rose and said it was true that the present resolution would repeal the former one, and it was so intended, as he apprehended there was a change in the sentiments of the Senate on that subject. Mr. Morris rose and said there was a change in the sentiments of the Senate, and he hoped his honorable colleague would change his sentiments for his own sake.

I rose and said it was a matter in which I was not in any degree personally concerned, and if I even were, nothing would make me for my own sake change my vote while my judgment remained unaltered. It could not, so far as I knew, affect me personally, but even if it did it should make no odds. On the question I gave my "No" in a voice sufficiently audible. One other faint "No" only issued from the opposite side of the House. So that now the court party triumphs at large.

The words for his own sake were not without a meaning. I have never been at the table of the President or the Vice-President, or [been] taken the least notice of, for a considerable time, by the diplomatic corps or the people of ton in the city. But I care not a fig for it. Davy Harris, too, has lost his nomination for an office in Baltimore; but be it so. I have done what is right; I followed my judgment, and rejoice in it.

Notice was given just before we broke up that the President would be in the Senate chamber at half after eleven tomorrow to take the advice and consent of the Senate on some matters of consequence; but nothing communicated.

22

August 22d, Saturday. — Senate met, and went on the Coasting bill. The doorkeeper soon told us of the arrival of the President. The President was introduced and took our Vice-President's chair. He rose and told us bluntly that he had called on us for our advice and consent to some propositions respecting the treaty to be held with the Southern Indians. Said he had brought General Knox with him, who was well acquainted with the business. He then turned to General Knox, who was seated on the left of the chair. General Knox handed him a paper, which he handed to the President of the Senate, who was seated on a chair on the floor to his right. Our Vice-President hurried over the paper. Carriages were driving past, and such a noise, I could tell it was something about "Indians," but was not master of one sentence of it. Signs were made to the doorkeeper to shut down the sashes. Seven heads, as we have since learned, were stated at the end of the paper which the Senate were to give their advice and consent to. They were so framed that this could not be done by aye or no.

The President told us that a paper from an agent of the Cherokees was given to him just as he was coming to the Hall. He motioned to General Knox for it, and handed it to the President of the Senate. It was read. It complained hard of the unjust treatment of the people of North Carolina, etc., their violation of treaties, etc. Our Vice-President now read off the first article, to which our advice and consent were requested. It referred back principally to some statements in the body of the writing which had been read.

Mr. Morris rose. Said the noise of carriages had been so great that he really could not say that he had heard the body of the paper which had been read, and prayed that it might be read again. It was so [read]. It was no sooner read than our Vice-President immediately read the first head over again, and put the question: Do you advise and consent, etc.? There was a dead pause. Mr. Morris whispered me, "We will see who will venture to break silence first." Our Vice-President was proceeding, "As many as — "

I rose reluctantly, indeed, and, from the length of the pause, the hint given by Mr. Morris, and the proceeding of our Vice-President, it appeared to me that if I did not no other one would, and we should have these advices and consents ravished, in a degree, from us.

Mr. President: The paper which you have now read to us appears to have for its basis sundry treaties and public transactions between the Southern Indians and the United States and the States of Georgia, North Carolina, and South Carolina. The business is new to the Senate. It is of importance. It is our duty to inform ourselves as well as possible on the subject. I therefore call for the reading of the treaties and other documents alluded to in the paper before us.

I cast an eye at the President of the United States. I saw he wore an aspect of stern displeasure. General Knox turned up some of the acts of Congress and the protest of one Blount, agent for North Carolina. Mr. Lee rose and named a particular treaty which he wished read. The business labored with the Senate. There appeared an evident reluctance to proceed. The first article was about the Cherokees. It was hinted that the person just come from there might have more information. The President of the United States rose; said he had no objection to that article being postponed, and in the mean time he would see the messenger.

The second article, which was about the Chickasaws and Choctaws, was likewise postponed. The third article more immediately concerned Georgia and the Creeks. Mr. Gunn, from Georgia, moved that this be postponed till Monday. He was seconded by Mr. Few. General Knox was asked when General Lincoln would be here on his way to Georgia. He answered not till Saturday next. The whole House seemed against Gunn and Few. I rose and said, when I considered the newness and importance of the subject, that one article had already been postponed; that General Lincoln, the first named of the commissioners, would not be here for a week; the deep interest Georgia had in this affair — I could not think it improper that the Senators from that State should be indulged in a postponement until Monday; and more especially as I had not heard any inconvenience pointed out that could possibly flow from it.

The question was put and actually carried; but Elsworth immediately began a long discourse on the merits of the business. He was answered by Lee, who appealed to the Constitution with regard to the power of making war. Butler and Izard answered, and Mr. Morris at last informed the disputants that they were debating on a subject that was actually postponed. Mr. Adams denied, in the face of the House, that it had been postponed. This very trick has been played by him and his New England men more than once. The question was, however, put a second time and carried.

I had at an early stage of the business whispered Mr. Morris that I thought the best way to conduct the business was to have all the papers committed. My reasons were, that I saw no chance of a fair investigation of subjects while the President of the United States sat there, with his Secretary of War, to support his opinions and overawe the timid and neutral part of the Senate. Mr. Morris hastily rose and moved that the papers communicated to the Senate by the President of the United States should be referred to a committee of five, to report as soon as might be on them. He was seconded by Mr. Gunn. Several members grumbled some objections. Mr. Butler rose; made a lengthy speech against commitment; said we were acting as a council. No council ever committed anything. Committees were an improper mode of doing business; it threw business out of the hands of the many into the hands of the few, etc.

I rose and supported the mode of doing business by committees; that committees were used in all public deliberative bodies, etc. I thought I did the subject justice, but concluded the commitment can not be attended with any possible inconvenience. Some articles are already postponed until Monday. Whoever the committee are, if committed, they must make their report on Monday morning. I spoke through the whole in a low tone of voice. Peevishness itself, I think, could not have taken offense at anything I said.

As I sat down, the President of the United States started up in a violent fret. "This defeats every purpose of my coming here", were the first words that he said. He then went on that he had brought his Secretary of War with him to give every necessary information; that the Secretary knew all about the business, and yet he was delayed and could not go on with the matter. He cooled, however, by degrees. Said he had no objection to putting off this matter until Monday, but declared he did not understand the matter of commitment. He might be delayed; he could not tell how long. He rose a second time, and said he had no objection to postponement until Monday at ten o'clock. By the looks of the Senate this seemed agreed to. A pause for some time ensued. We waited for him to withdraw. He did so with a discontented air. Had it been any other man than the man whom I wish to regard as the first character in the world, I would have said, with sullen dignity.

I can not now be mistaken. The President wishes to tread on the necks of the Senate. Commitment will bring the matter to discussion, at least in the committee, where he is not present. He wishes us to see with the eyes and hear with the ears of his Secretary only. The Secretary to advance the premises, the President to draw the conclusions, and to bear down our deliberations with his personal authority and presence. Form only will be left to us. This will not do with Americans. But let the matter work; it will soon cure itself.

24

August 24th, Monday. — The Senate met. The President of the United States soon took his seat, and the business began. The President wore a different aspect from what he did Saturday. He was placid and serene, and manifested a spirit of accommodation; declared his consent that his questions should be amended. A tedious debate took place on the third article. I was called on by Mr. Lee, of Virginia, to state something respecting the treaty held by Pennsylvania. This brought me up. I did not speak long, but endeavored to be as pointed as possible. The third article consisted of two questions. The first I was for. I disliked the second, but both were carried. The fourth article consisted of sundry questions. I moved pointedly for a division. Got it. Voted for the first and opposed the second part. A long debate ensued, which was likely to end only in words. I moved to have the words "in failure thereof by the United States" struck out, and, although Elsworth, Wyngate, and Dalton had spoken on the same side with me, yet I was not seconded. My colleague had ill private declared himself of my opinion also. It was an engagement that the United States would pay the stipulated purchase money for Georgia in case Georgia did not. The arguments I used on this subject were so plain I need not set them down. Yet a shamefacedness, or I know not what, flowing from the presence of the President, kept everybody silent.

The next clause was for a free port on the Altamaha or Saint Mary's River. This produced some debate, and the President proposed "secure" port in place of "free" port. Agreed to. Now followed something of giving the Indians commissions on their taking the oaths to Government. It was a silly affair, but it was carried without any debate. Now followed a clause whether the cession of lands should be made an ultimatum with the Creeks. There was an alternative in case should this be negatived; but, strange to tell, the Senate negatived both, when it was plain one only should have been so. A boundary was named by a following clause which the commissioners were to adhere to. Money and honorary commissions were to be given to the Indians. The old treaties with the Creeks, Choctaws, and Chickasaws were made the basis of future treaty, though none of them were read to us nor a single principle of them explained (but it was late). The twenty thousand dollars applied to this treaty, if necessary. This closed the business. The President of the United States withdrew, and the Senate adjourned.

I Told Mr. Morris, on Saturday, that I would get a copy of the queries or articles to be answered to, and call on him, that we might make up our minds. He appointed this morning, and I called accordingly. We talked and talked, but concluded nothing. I have several times called on him for similar purpose, and thus always the matter has ended.

Just as the Senate had fairly entered on business, I was called out by the doorkeeper to speak to Colonel Humphreys. It was to invite me to dinner with the President, on Thursday next, at four o'clock. I really was surprised at the invitation. It will be my duty to go; however, I will make no inferences whatever. I am convinced all the dinners he can now give or ever could will make no difference in my conduct. Perhaps he knew not of my being in town; perhaps he has changed his mind of me. I was long enough in town, however, before my going home. It is a thing of course, and of no consequence; nor shall it have any with me.