THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
DEBATES,
IN THE
SENATE OF THE UNITED STATES,
ON THE
JUDICIARY.
J 5 63 7
^^^1^
Jaldwin, Abraham (i 754-1807), of Georgia, was chaplain in Gen
ene's army from 1777 till the close of the war. As a member of
islature of Georgia he was the originator of the University of Geoi
was its first president. Was in Congress from 1785 to 1799, a mem
he Federal Constitutional Convention of 1787, and U. S. Senator fi
9 till his death.
DEBATES
IN THE
SENATE OF THE UNITED STATES
ON THE
JUDICIARY,
DURING THE FIRST SESSION OF THE SEVENTH CONGRESS;
ALSO,
THE SEVERAL MOTIONS, RESOLUTIONS, AND VOTES,
TAKEN UPON THAT
MOMENTOUS SUBJECT ;
AUD
A COMPLETE LIST OF THE YEAS AND NAYS,
AS ENTERED ON THE JOURNALS.
f
-/
H/^".
i.hV^lix H'
4
ENTERED ACCORniNG TO LAW.
PHILADELPHIA I
FOR E. BRONSON, PRINTED BY THOS. SMITH.
1802.
JK
isn
AS-
l9.0th
DEBATE ON THE JUDICIARY BILL.
THE great queftion on the independence of
the judicial department of our government having
been decided in Congrefs, it was thought expedient
to coUeft and publifh the interefting debate which
took place on that fubje^l: in the Senate of the Uni-
ted States. It is here prefented to the public cor-
reftly. Great part of it has indeed appeared already
in the National Intelligencer, but the party-attach-
ments of the editor of that paper, arc too ftrong,
and his party-conne6lions too influential, to permit
him always to fpeak the whole truth. In fome in-
flances, (perhaps from mifapprehenfionj the argu-
ments of his friends have been fo corredlcd, as to
elude, in fome meafure, the anfwers which were
given. Where they have been merely embeiliflied,
it is not thought necefTary to alter them from the
Hate in which he difplayed them. An intelligent
friend, who was prefent, and who has compared the
different publications with his own notes, has fur-
nifticd the materials for this pamphlet, the editor of
which does not prefurae to offer an opinion, much
B
Icfs an argument, of his own. He publiflies it with
the view to profeflional emolument, and in the hope
of being ufeful to his country.
Every independent American will doubtlefs wifh
to pofTefs the means of deciding for himfelf on this
important fubjedl. Many years may pafs away be-
fore the queflions which have now been flirred fliall
be finally fettled. During their progrefs, it may
not, perhaps, be ufelefs to the citizens of this exten-
five country, to bring the affertions of prominent
charaflers to the touch-ftone of experience ; and
the following pages will afford the means as
to thofe who have feats in the Senate. We cannot
promife, but we are not without the hope of being
able to offer, at a future day, the debates on the
famcfubjeft in the Houfe of Reprefentativcs.
On the 4th day of January, 1802, Mr. Breck-
ENRiDGE gave notice, that he would, on the 6th,
move for the order of the day, on that part of the
Prefident's meffage* which refpe^s the judiciary
fyftem, and informed the houfe he ihould propofe a
Tlie part alluded to is as follows: " the judiciary system
oftlie United States, and especially that portion of it recently
ereftcd, will of course present itself to the contemplation of Con-
gress ; and that they may be able to judge of the proportion
which the inftitution bears to tiic business it has to perform,
I have caused to be procured from the several states, and now
lay before Congress, an cxal statement of all the causes decid-
ed since the firft establishment of the courts, and of those which
were depending when additional courts and judges were brought
in to their aid."
repeal of the law pafled on that fubjeft the lafl fcf-
fion, and of certain fc6lions in a preceding law. On
the 6th he made the following motion :
" Refolved, That the aft of Congrefs, pafTed
on the 13th day of February, 1801, entitled An
A61 to provide for thejnore convenient organization of
the courts of the United States^ ought to be repealed.^*
-* He faid, he flioiild, for the prefent, wave the re-
mainder of what he had intended to move. The
confideration of his motion was poflponed to the
eighth.
On Friday the 8 th of January, he opened the
debate as follows :
It will be expefted of me, I prcfume, fir, as I in-
troduced the refolution now under confideration, to
affign my reafons for wifhing a repeal of this law.
This I fliall do ; and fliall endeavour to fliew,
I. That the law is unnecefiTary and improper,
and was fo at its pafiage ; and
II. That the courts and judges created by it,
can and ought to be abolillied.
I ft. That the aft under confideration, was un-
neceflary and improper, is to my mind, no difficult
talk to prove. No increafe of courts or judges
could be neceflary or juftifiable, unlefs the exifting
courts and judges were incompetent to the prompt
and proper difcharge of the duties configned to
them. To hold out a fliew of litigation, when in
faft little exifts, muft be impolitic ; and to multiply
cxpenfive fyilems, and create hofts of expenfive of-
ficcrs, without having experienced an aftual nccef-
fity for them, mud be a wanton wade of the public
treafure.
The document before us (liews, that at the paf-
fagc of this aft, the exifting courts, not only from
their number, bu^from the fuits depending before
them, were fully competent to a fpeedy decifion of
thofe fuits It Ihews, that on the 1 5th day of June
lad, there were depending in all the Circuit Courts,
(that of Maryland only excepted, whofe docket wc
have not been furnilhed with,) 1539 fuits. It (hews
that 8276 fuits of every defcription have come be-
fore thofe courts, in 1 o years and upwards. From
this it appears, that the annual average amount of
fuits has been about 800.
But fundry contingent things have confpired to
fwcll the circuit court dockets. In Maryland, Vir-
ginia, and in all the fouthern and fouth-weftem
ftates, a great number of fuits have been brought
by Britifli creditors : this fpecics of controverfy is
nearly at an end.
In Pennfylvania, the docket has been fwelled by
profecutions in confequence of the wedern infur-
rcftion, by the didurbances in Bucks, and North-
ampton Counties ; and by the Sedition Aft. Thefe
I find amount in this State to 240 fuits.
In Kentucky, non-refidcnt land claimants have
gone into the Federal Court from a temporary con-
venience ; becaufe, until within a year or t^o pad,
there cxided no court of general jurifdiftion co-cx-
tcnfivc with the whole State. I find too, that of the
fix hundred and odd fuits which have beeti com-
menced there, 196 of thetn have been profecutiond
under the laws of the L'nited States.
In mofl of the States there have been profecu-
tions under the Sedition AS:. 1 his fource of litiga-
tion is, I tt-uft; for ever dried up.-^Andj liftly, mali
the States a number of fuits have arifett under thS
Excife Law ; which fource of controVerfy, will, I
hope, before this fellion terminates, be alfo dried
up.
But this fame document difclofes another im-
portaiit faft ; which is, that nevcrthelefs all thefd
untoward and temporary fources of federal adjudi-
cation, the fuits in thofe courts are dtcreafing ; for
from the dockets exhibited (except Kentucky, aiid
TennelTee, whofe fuits are fummed up in the aggre-
gate) it appears, that in 1799 there were 12745
and in 1800 there were 687 fuits commenced j
Ihewing a decreafe of 587 fuits.
Could it be neceflary then to increafe courts
when fuits were decriafing ? Could it be neccffary
to multiply judges, when their duties Were diminifli-
ing ? And will I not bejuftified, therefore, in affirm-
ing, that the law was unneceflary, and that Congrefs
afted under a miftaken imprellion, when they mul-
tiplied courts and judges at a time when litigation
Was aftually decreafing.
But, fir, the decreafe of bufinefs goes a fmift
way in fixing my opinion on this fubjeft. I ana in*
clined to think, that fo far from there having been
a necefljty at this time for an incrcafc of courts and
judges ; that the time never will arrive, when Ame-
rica will (land in need of 38 federal judges. Look
fir, at your conftitution, and fee the judicial power
there configned to federal courts, and ferioufly afk
yourfelf, can there be fairly extrafted from thofe
powers fubjefts of litigation fufficient for 6 fupremc
and 32 inferior court judges? To me it appears
impoflible.
The judicial powers given to the federal courts
were never intended by the conflitution to embrace,
exclufively, fubjefts of litigation, which could with
propriety be left with the State courts. Their ju-
rifdi^lion was intended principally to extend to great
national and foreign concerns. Except cafes arif-
ing under the laws of the United States, I do not
at prefent recoiled but three or four kinds in
which their power extends to fubjels of litigation,
in which private perfons only are concerned. And
can it be pofTible, that with a jurifdiftion em-
bracing fo fmall a portion of private litigation, in
great part of which the State courts might, and
ought, to participate, that we can ftand in need of
38 judges ; and expend in judiciary regulations the
annual fum of 137,200 dollars ?
No other country, whofc regulations I have
any knowledge of, fumifhes an example of a fyftem
fo prodigal and extenfive. In England, whofc
courts arc . the boaft, and faid to be the fccurity of
the rights of the nation, every man knows, there
are but 12 judges and 3 principal courts. Thefc
courts embrace, in their original or appellate jurif-
diftion, almofl: the whole circle of human concerns.
The king*s bench and common pleas, which
confifl: of 4 judges each, entertain all the commoH
law fuits of 40s. and upwards, originating among 9
millions of the mod commercial people in the world.
They moreover revife the proceedings of not only
all the petty courts of record in the kingdom, even
down to the courts of piepondre ; but alfo of the
court of the king's bench in Ireland : and thefe fu-
preme courts, after centuries of experiment, are
found to be fully competent to all the bufinefs of
the kingdom.
I will now inquire into the power of Congrefs,
to put down thefe additional courts and judges.
I ft. As to the courts. Congrefs are empower-
ed by the conftitution " from time to time, to
ordain and eftablifh inferior courts.** The a6l now
under confideration, is a legillative conjlru^'wn of
this claufe in the conftitution, that Congrefs may
abolijh as well as create thefe judicial officers; be-
caufe, it does exprefsly in the 27th fedion of the
aft, abolijh the then exifting inferior courts, for the
purpofe of making way for the prefent. This con-
ftrudion I contend is correft ; but it is equally per-
tinent to my objeft, whether it be, or be not. If
it be correct, then the prefent inferior courts may
be aboliftied as conftitutionally as the laft j if it be
10
not, then the law for abolifhing the former courts,
and eftablifhing the prefentj was unconflitutional and
confcquently repealablc.
But, independent of this legiflativc conftruftion,
on which I do not found my opinion, nor mean to
!ly my argument, there is little doubt indeed, in
my mind, as to the power of Congrefs on this law.
Ihe firrt: fe// originate in the Houfe
of Reprefentatives, &c." It would, therefore, in
my view, be a pervcrfion not only of language, but
of intelleft, to fay, that although Congrefs may
from time to time eftablifli inferior courts, yet,
when eftabliihed, that ihcj Jhall no: be aboliftied by
a fubfcquent Congrefs poflcfCng equal powers. It
would be a paradox in legiflation.
2d. As to the judges. The judiciary depart-
ment is fo conftru T^i ',!..; ;a'j
28
Why the exprelBon in the conftitution, " The
judicial power (hall be veiled in fuch inferior courts
as Congrefs may, from time to iime^ ordain and
eftablifli,'* if it had been intended, as is now con-
tended, that the office being once bcftowcd, no
change can be made.
If the cafe of thofe, who have accepted thofc
offices, be coniidered as a hard one, may it not be
faid that they knew the conflitution, and the tenure
by which their offices were to be held. In our
regard for individual intereft, we ought not to fa-
crifice the great intereits of our country ; and was
it not demonftrable that, if 21 judges were fufficient
when 1200 fuits exifted, they were equally fo, when
there were no more than 700.
The gentleman from MalTachufetts was wrong
in Hating that Maryland was the only Hate that had
repealed a law creating judiciary offices. Virginia,
if he was not miiiuformed, had done the fame thing.
But we wanted not thefe precedents. Our own
archives furniflied us with abundant precedents.
We had reduced the judges of the Supreme Court
from fix to five, we had annihilated two diftrifts.
The very gentlemen oppofed now to the repeal of
this law had voted for thefe nieafurcs. Thus it ap-
peared, that though the Conftitutioii juftified the
meafure then^ it prohibited it now!
Believing the judiciary law of the laft feffion
kad arifen from a difpofition to provide for the warm
friends of the exifting adminiftration ; believing
29
ttat great inconveniencies had arifen under it ;
k believing its expense to be oppreflive j and believ-
ing, that if one legiflature had a right to pafs it,
another legiflature had the fame right to repeal it ;
he trufted, that however a preceding legiflature
1: might have been governed by pafTion, the prefent
legiflature would, by repealing it, fliew that they
j, were governed by rcafon.
r '-'' After Mr. Wright concluded, there was
again a paufe, and the queftion was called for ;
Mr. Morris, of New- York, then fpoke, as fol-
lows :
Mr. Prefldent, I am fo very unfortunate, that
the arguments for repealing the law, to which this
motion refers, have confirmed my opinion that it
ought not to be repealed. The honourable mover
has thought fit to reft: his propofition upon two
grounds :
Firft:. That the judiciary law, paffed laft;
fefllon, is unnecefl^ary and improper.
Secondly. That we have, by the conftitution,
a right to repeal it ; and, therefore, ought to exer-
cife that right.
The numerical mode of argument he has made
ufeof, to eflablifti his firft: point, is perfeftly novel,
and, as fuch, it commands my tribute of admira-
tion. This, indeed, is the firft time I ever heard
that the utility of courts fliould be eftimated by the
number of fuits which they are called on to de-
cide. I remember once to have read, that a juftly
30
celebrated monarch of England, the great Alfred,
had cnafted fuch laws, cflabliflied fucii tribunals,
and organized fuch a fyftem of police, that a purfc
of gold might be hung upon the fide of the high-
way, without any danger that it would be ftolen.
But, fir, had the honourable gentleman from Ken-
tucky exifted in thofe days, he would, perhaps,
have attempted to convince old Alfred, that he had
been egregionfly miilaken ; and, that a circum-
ftance, which he confidered as the pride and glory of
his reign, had arifca from its greatefl defeft, and
foreft evil. For, by affuming the unfrequency of
crimes as the proof that tribunals were unneceffary,
and thus boldly fubflituiing effect for caufe, the
gentleman might have demonllrated the inutility of
the inftitution, by the good which it had produced.
Surely, this kind of reafoning, is, of all others, the
moft falfc and the mofl fallacious.
But, fir, if, with that poor meafure of ability,
which it hath pleafed God to give me, I march on the
ground I have been accuftomed to tread, and which
experience hath taught me to confider as folid, I
would venture the affertion, that in fo far as our
judicial inftitutions may accelerate the performance
of duties, promote the caufe of virtue, and prevent
the perpetration of crimes, in that fame degree
ought they to be eflimated and cherifhed. This,
fir, would be my humble mode of reafoning, but for
the wonderful difcovery, made by the honourable
mover of the refolution on your table.
31
To prove, that the law of laft felTiGn was impro~
per^ as well as iinneccffhry, we have been told of the
vafl: expense of our judiciary. We are referred to
the estimates, which lie before us, for proof, that it
amounts to no lefs than the yearly fum of 137,000
dollars. And then, attributing the whole expense
to this particular law, it has been aflumed, in argu-
ment, that to repeal the law, would operate a,
faving of 137,000 dollars.
If, fir, the data upon which the honourable
member has founded his other arithmetical argu-
ments, are equally incorrel, the inferences drawn
from them will merit but little attention. Cf this
whole fum, of 137,000 dollars, (mentioned in the
eftimates of your Secretary of the Treafury) no lefs
^han 45,000 dollars are ftated as the fuppofed con-
tingent expense, to accrue for the attendance of
jurors, witneffes, &c. From hence is fairly to be
inferred the expeftation, that much bufinefs will be
aftually done.
The expense, fuppofed to accrue from the law
we are called on to repeal, is but thirty-two thou-
fand dollars, for falaries, and fifteen thoufand for
contingencies ; making, together, 47,000 dollars.
But let us not flint the argument. Let us make a
* generous allowance. Let us throw in a few thou-
fandsmore, and take the amount at 51,000 dollars.
Let that fum be apportioned among the people of
the United States, (according to the cenfus lately
taken) and you will find, that the fliare of each io'
52
dividual, is jufl: one cent. Yet, for this paltry fav-
ing of a cent a man, we are called on to give up
what is moft valuable to a nation.
Undoubtedly, it is one great purpofe of go-
vernment, to proteft the people from foreign inva-
fion, and, to be in readinefs for it, a confiderable
armament may be neceffary. The maintenance of
of naval and military force, to proteft our trade,
and to guard our arfenals and magazines, will alone
require much money ; to provide which, you muft
raife a confiderable revenue. That again will,
(for the colleftion of it) demand many officers, in-
volving a flill greater expense. All this must be paid,
and yet, all thefe provifions are for events uncer-
tain. An invafion fiiay^ or may not, take place.
Nay, if I may judge from certain documents, thofe
who adrainifler our affairs, have little apprehenfion
of fuch an event. / hope they may not be deceived.
But, admitting that we have no danger to fear, or,
which comes to the fame thing, that we are pro-
perly fecured againft it ; what elfe have the people
a right to demand, in return for the whole sum ex-
pended in the fupport of government ? They have
a right to aik thaty without which, protedion from
invafion, nay government itfelf, is worfe than ufe-
lefs. They have a right to a^ for the protection of
iaw, well administered by proper tribunals, to secure
the weak against the strong, the poor against the rich,
the oppressed against the oppressor. This, which in-
volves but little cxpence, is all they afk for all their
33
money. And is this little to be denied ? Mufl: thd
means by which the injured can obtain redrefs, be
curtailed and diminiflied, to fave a poor and pitiful
expense ? You mufl pay largely to fupport but a
fmall force, and much is to be feared from armies.
They, indeed^ may turn their fwords againft our
boforas. They may raife to empire fome daring
chief, and clothe him with d-efpotic power. But
what danger is to be apprehended from that army
of judges which the gentlemen have talked of? Is
it fo grear, fo imminent, that we mufl immediately
turn to the right about, the new corps, lately raifed,
of fixteen rank and file ?
Gentlemen fay, that wc mufl, and bid us recur
to the ancient fyflera. What is that fyflem ? Six
judges of the Supreme Court, to ride the circuit of
all America, twice a year, and afTemble twice a year,
at the feat of government. Without inquiring in-
to the accuracy of a flatement which the gentleman'
has made, refpefting the courts of England, (in
which, however, he will find himfelf much mif-
taken) let me afk, what will be the eiTedl hereof re-
floring that old fyflem '^. Cafl an eye over the extent
of our country, fee the diflance to be travelled in
making the circuits, and a moment's confideration
will iliew, that if we refort to the old fyflem, the
firfl magiflrate, in felefiling a charader for the
bench, mufl feek lefs the learning of a judge, than
the agility of a pofl-boy. Can it be expefted, is it
pofhble, that men, advanced in years, (for fuch alone
34
have the maturity of judgment which befit5 that of-
fice) men educated in the clofet, men, who, from
their habits of life, mufl: have more ftrength of
mind than of body ; is it, I fay, pofTible, that fuch
men can be continually running from one end of the
continent to the other ? Or if they could, can they
find time alfo, to hear, confider, and decide, on nu-
merous and intricate caufes ? No, fir, they can not.
I have been well affured, by men of eminence, on
your bench, that they would not hold their offices
under the old arrangement.
What is the prefent fyflem ? You have added
feven diilri^l and fixtcen circuit judges. Thefe arc
fully competent to perform the bufmefs required,
and the complaint is merely on the fcore of expense :
Ho one has f/retendcd that the business will not be
done as speedily, and as tucll. It is merely to fave
expense, therefore, that we are called on to repeal
the law. But what will be the efFcft of this defired
repeal ? Will it not be a declaration to the remain-
ing judges, that they hold their offices subjecl to your
will, and during your pleasure? And what is the
natural effect of that declaration ? Is it not, that,
dependent in this situation, they will lose the indepeit-
deni spirit essential to a due exercise of their authori^
iy ? Thus, then, the check eflablifhed by the con-
ftitution, defircd by the people, and neccffary in
every contemplation of common fenfc, will be de-
ftroyed. It has been faid, and truly faid, that go-
rernracnts are made to provide againfl the follies
3f5
and vices of men. To fuppofe that governments
reft upon reafon, is a pitiful folecifm : for, if man-
kind were reasonable^ they would want ?io govern-
ment. From the fame caufe it arifes, that checks
are required in the diftribution of power, among
thofe to whom it is confided, and who are to ufe it
for the benefit of the people. Here, then, let me
alk, whether the people of America have vested all
power ^ uncontrokd, in the National Legislature ?
Surely they have not. They have prefcribed to it
certain bounds, and, in the natural fuppofition,
that thefe bounds might be tranfgrefled, they have
vefted, in the judges, a check, which they fuppofed
to be falutary, and intended to be efficient. A
check of the firft neceffiry, becaufe it may prevent
an invafion of the conftitution, by unconftitutional
law's. And to fecure the exiftence and the opera-
tion of this check, there is a provifion, highly im-
portant, whofe objeft is, to prevent any party, or
faction, from intimidating or annihilating the tribn^
nals themfelves.
On this ground, then, I ftand, to arreil the vic-
tory meditated over the conftitution of my country.
A viftory, meditated by thofe who wifti to proftrate
that conftitution, for the furtherance of their ambi-
tious views. Not, fir, the views of him who re-
. commended, nor of thofe who now urge this mea-
fure (for on his uprightnefs, and on their uprightnefs,
I have full reliance,) but of thofe who are in the
back ground, and who have further and higher ob-
F
36
jcis. To ihcm, our national compaft forms an
infurmountable barrier. Thofc troops, therefore,
which protel the out-works of the conftitution,
are to be firft difmiflcd ; thofe pofts which prefent
the moil formidable defence, are firft to be carried ;
and then the conftitution becomes an eafy prey.
Let us confider, therefore, whether we have,
conftitutioiially, the power to repeal this law. And
to this effect, let us hear the language of the con-
ftitution. " The Judicial power of the United
States fliall beveftcd in one supreme court, and in
fuch inferior courts, as the Congrefs may, from
time to time, ordain and eftablifli. The judges,
both of the supreme and inferior courts, fhall hold
their offices during good behaviour^ and ihall, at
dated times, receive for their fervices, a compenfa-
tion, which /h.j/I not be dimitiijhed during their con-
tinuance in office.** On this, fir, I have heard a
verbal criticifm, about the words Jhall and may,
which appears to me wholly irrelevant. And it is
the more unneceflary, as the fame word, Jhall, is
applied to the provifions contained in both members
of the fcclion. It fays, *' The judicial power JJjall be
vefted in one fupreme court, and in such inferior
. courts as the Congrefs ;;wy, from time to time, or-
dain and eftabllih.** The legiflature have, therefore,
the undoubted right to determine, what inferior
courts they will eftablifli ; but, when once establish-
ed, a part of the judicial power Jhall veft in them.
The words are imperative, and fo they are as to the
37
tenure of the office, which the legiflature, (in the
cxercifc of this difcretionary power) may have
created. The judges, it {^.y^, Jhall hold their offices
during good behaviour. Thus, upon the eftablifli-
ment of the tribunal, the conftltution has declared,
that the judicial power (hall veft, and the office be
held during good behaviour. The fecond member
of the fe6i:ion is equally imperative. It declares,
that they Jhal I receive a compenfation, which y/W/
not be diminijhed during their continuance in office.
Whether we confider, therefore, the tenure of
office, or the quantum of compenfation, the lan-
guage is equally clear and conclulive. After this
llmple expolition, gentlemen are welcome to every
advantage they can derive from a criticifm upon
jhall and may.
Another criticifm has been made, which, but
for its ferious effefts, I would call plcafant. The
amount of it is, you (hall not take the man from
the office, but you may take the office from the
man \ you fliall not throw him overboard, but you
may fink his boat under him ; you (hall not put
him to death, but you may take away his life. The
conditution fecures to a judge his office ; fays he
fliall hold it, (that is, it fliall not be taken from him)
during good behaviour ; the legiflature fliall not
diminifti, though thtir bounty may increafe his
falary ; thus, the conditution has made all poffible
provifion for the inviolability of his tenure, as far as
the power of language axn extend j and, if not, I call
S8
on gentlemen to fliew the contrary, by giving us
words more clear, more precise, more definite. If,
after the flrong pofitive expreffions, any negative
terms had been added, would it not have been im-
proper ? If the framers of the conftitution had
faid, the judges 72?^^///;o/<3/>z^/^r//y. Why
.. are we here ? We are here to save the people from
% their mofl dangerous enemy, to save them from them-
selves. What caufed the ruin of the republics of
Greece and of Rome ? Demagogues, who, by
flattery, prevailed on the populace to eftablifli def-
potifm. But if you will fliutyour eyes to the light
of hiftory, and your ears to the voice of experience,
fee, at leaft, what has happened in your own times.
In 1789, it was no longer a doubt with enlightened
ftatefmen, what would be the event of the French
revolution. Before the firfl day of January, 1790,
I G
44
the only queftion was, who will become the dcfpot.
The word liberty, indeed, from that day to this,
has been continually founded and refounded, but the
thing had no exiftence. There is nothing left but
the word.
We are now about to violate our conftitution.
Once touch it with unhallewed hands, facrifice one
of its important provifions, and we are gone. P^l?
commit the fate of America to the mercy of time and
chance.
I hope the honourable gentlemen from Mary-
land will pardon me, if, from the feQion of the law
he has cited, I deduce an inference diametrically
oppolite to that, for which he has contended. He
has told us, that the lafl Congrefs, in reducing the
judges of the fupreme court from fix to five, have
exercifed the right which is now qucflioned, and
made, thereby, a legiflative conflrudtion of this claufc
in the conftitution, favourable to the motion on your
table. But look at the law. It declares that the
reduftion fliall not take place, until, by death or
refignation, there fliall remain only five. Thus, in
the very moment when they exprefs their opitiion
that five judges are fuflicient, they acknowledge
their incapacity to remove the fixth. The legiflative
conftru(ftion, therefore, is, that they have not the
right which is now pretended.
The fame honourable member has cited other
cafes from the fame law, which fif I understood his
statement J amount to this, that Congrefs have en-
creased the number of dift;ri6l judges : but furely
45
this cannot prove that wc have a right to diminish
the number. It will, I think, appear, fir, that this
law, fo much complained of, is in nowife chargeable
with maintaining the dangerous doflrine to be eflab-
k lifhed by its repeal.
The whole argument in favor of the motion comes
to this fimple propofition, let us get rid of thefe judges
tofave expense. We can repeal the law, becaufe we
made the law, we have the power ^ let us exercife it.
But, let me a/k fir, if this argument will not go to
prove any thing. Will it not go to the abolition of
the debts incurred by the lafl: Congrefs ? Shall it be
faid that the cafes differ becaufe the debt refults
from a contratl with the creditor fanftioned by the
legiflature ? Sir, you have made a contraft with
the judges, fanftioned by higher authority. You in-
deed created the office, but when created, the confli-
tution fixed its duration. The firfl magiflrate in our
country with this conflitution in his hand, applies
to men of high charafter and great ability. He
afks them to quit a lucrative and honorable profef-
fion, to abandon their former purfuits, to break
their ancient connexions, and give their time, their
talents/ and their virtues, to the fervic of their
country. What does he offer as a compenfation ?
He offers a high and honorable office, to be holden by
no capricious will^ to depend on no precarious favor.
The duration is to be terminated only by death or
miscondu5l. The legiflature has affixed a falary
which they may encrease^ but cannot diminifh. Up- .
46
on thtffe profffered terras, the judge accepts. Th9
contract is then complete, A contract which refts no
longer on the Icgiflativc will. He is immediately
under the proteOion of the conflitution itfclf, which,
neither the Prcfident, nor the legiflature, can defeat.
His authority rests on the same foundation with yours.
It is derived from the fame fource. Will you pre-
tend that you are bound by your contract with him
who lent you money, at eight per cent, intereft, and
that you are not bound by your contraft with hira,
who devotes his life to your fervice ! Will you fay
that the confideration you have received, is to make
a difference, and that paltry pelf is to be preferred
to manly worth ? Is that to be refpefted, and this
defpifed ? Surely fir, the contra^, with a judge, is,
of all others, the mod folemn. It is fan^lioned by
the higheft of all authority. Can you then violate
it ? If you can, you may throw this conflitution into
the flames. It is gone It is dead.
After Mr. Morris concluded, the Senate ad-
journed to Monday the eleventh. That day they
were engaged in other bufmefs, fo that the debate
was not re alTumed, until Tuefday, the twelfth,
when it was opened by Mr. Jackson of Georgia,
who fpoke as follows :
I rife with an impreflion of awe on the prefent
queflion j for we mufl tread on conftitutional
ground, which fliould not be lightly touched on, nor
tQo haflily decided. Every ftep we take ought to
be well examined, and our minds convinced before
47
we give that vote which cannot be recalled, and
which will fix a principle on legiflative conftruftion,
which, perhaps, will prevail as long aswc remain a
nation.
In the early ftage of this difcuffion, I had al-
moft determined to fay nothing, and am at prefent
determined not to fay much ; but a juflification of
the vote I fhall give, has impelled me to offer my
reafons for it to the ftate I reprefent : and I have
made up my mind decidedly, to vote for the refo-
lution before you, if I cannot be otherwife con-
vinced, rn i>
I conceive, that as this fubjeft requires from us
a legiflative conftruftion, that conftruftion may as
well, and indeed better, be now made ; there will,
undoubtedly, hereafter, be a clafhing of powers. I,
therefore, think it is much better to decide it now,
when the injury is felt, than to fuffer it to take root
until it fliall extort a different and more violent
decifion than that of a deliberative body.
The reafons for the refolution have been fo ably
dated, and flrongly enforced by the gentleman from
Kentucky who moved it, as to expediency and the
burthen of the expenfes on the prefent fyftem, I
{hall therefore fay little about them.
The expenfes, however, of the judiciary eflab-
lifhment, I deem the leafl important confideration
attached to the fubjeft.. Yet, I do not agree with
the gentleman who has fpoken, that the expenfc
is trifling. The gentleman from New- York, had
48
held up the infignificancy of a cent a pcrfon, and had
told us of Alfred's purfe, which no one dared to
take away. Let that gentleman calculate twelve
fouls to a family, and he will fee that each family
would pay 1 2 cents ; a fum however infignificant
to the pocket of that gentleman, that might furnifti
a comfortable meal to a poor family. With the
gentleman from Kentucky, however, I contend that
the principle is as much fettled by one cent, as by a
million. And this obfervation becomes incalculably
dangerous, if it is to be drawn into precedent on
every new projel or improper meafure, that it
colls but a cent a perfon. And as to the remarks
about Alfred, I might retaliate upon the gentleman,
and fay, that at that day, 1 2 cents might have beeo
a year's falary for a judge.
We have been a/ked, if we arc afraid of having
an army of judges. For myfelf, I am more afraid
of an army of judges under the patronage of the
Prefident, than of an army of foldicrs. The former
can do us more mifchief. They may deprive us of
our liberties, if attached to the executive, from their
dccifions ; and from the tenure of office contended
for, we cannot remove them ; while the foldier,
however he may aft, is enlifted, or if cnlifled, only
fubfiled for two years ; whilft the judge is enlifted
for life, for his falary cannot be taken from hirti.
[See 12 divifion, 8 Seft. ift. Art. Conftitution.]
Sir, it is faid thefe evils will not happen. But what
fecurity have we for the truth of the declaration ?
49
Have we not feen fedition laws ? Have we not
heard Judges crying out through the land fedition,
and a/king thofe whofe duties it was to inquire, is
there no fedition here ? It is true, the fedition law
had expired with the lafl adminillration, and he
trufled it would not exift, or at lead be afted on,
under the virtuous Jefferfon. But hereafter, if it
fhould exifl, your judges under the cry of fedition
and political herefy, may place half your citizens in
irons. I thank God, that no fuch law now exifts,
or is likely to exift. I thank God, that we are not
now under the influence of an intolerant clergy, as
is evident from their abufe of the Prelident j and
that we are not under dread of the patronage of
judges, is manifeft from their attack on the Secre-
tary of State. And 1 truft, that we ftiall long keep
this patronage off, by not fanftioning the religious
perfecution of the clergy on the one hand, or the
political violence of the judges on the other.
But I will forbear making any further remarks
of this kind, and go into an examination of the con-
ftitutional grounds.
[Gen. Jackson here quoted the 3d Art. ill.
Seft. of the conftitution.]
Here then are two tribunals. Firft, the Supreme
Court, the creature of the conflitution, the creature
of the people ; the other, the inferior jurifdiclions,
the creature of the legiflature. And notwithftand-
ing the play of gentlemen upon the words shall and
may^ they areJA mea{ii|jg ^ejgi.ti4!ly , 4/%^^g t-^ The
50
word, shall, applied to the Supreme Court, is im-
perative and commanding, while the word, 7nay, ap-
plied to the inferior courts, is difcretionary, and
leaves to the legiflature a Volition to a^, or not to
aft, as it fees fit.
Again, why are the peculiar and exclufive pow-
ers of the fupreme court defignated in the following
feftion of the conftitution, but becaufe the conftitu-
tion confidered that tribunal as abfolutely eftabli(h-
cd ; while it viewed the inferior tribunals as de-
pendent upon the will of the legiflature. -And that
this was the cafe was evident from the conduft of
the Supreme Court on the penfion aft, which, that
court had forae time fince declared unconftitutional,
and which declaration, he was convinced, would not
have been hazarded by an inferior tribunal.
But does this concluilou reft on judicial power
alone ? Is it no where elfe found under other
heads of conftitutional power ? Yes fir, under the
legiflative head of power, which is the firft grant of
power made by the conftitution. For by the 8th
feftion of the ift article of the conftitution, after
enumerating the power of laying taxes, &c. it is de-
clared in the oth divifion thereof, ** to extend to
conftitute tribunals inferior to the fupreme court."
Here then is a legiflative power given exprefsly to
that body, without reftriftion or application to any
other branch of the national government. Let
thofe lawyers who hear me decide on the conftruc-
tion of all grants or deeds, if two grants be made in
51
i^^^^e "Jeedf ^o^^lJo different povVers'bP jiatettk;
if the firfl does not exclufively vefl: ?
^ fe'ifhfere a Tingle Argument, that caii be affigned
to oppofe this conftruftion of the conftitution ? Do
not the oblcrvations of gentlemen, who infift upon
the permanent tenure of the judicial office, place
the creature above its. creator, man above his God,
tile model above its mechanic ? A good mechanic,
when he cQnftrufts a machine, tries it : and if it
does not fucceed, he either mends or throws it away.
Is there not the fame neceffity for afting in the fame
way with the inferior tribunals of the judiciary,
which is no other than the machine of the legifla-
ture?
But, upon the principles of gentlemen, the law
which creates a judge, cannot be touched. The
moment it is paffed, it exifls to the end of time.
What is the implication of this doctrine ? To alter,
or amend what may greatly require alteration or
amendment, it is necefTary to return to the creator,
and to enquire what this creator is. My principle
is, that the creator is the people themfelves ; that
very people of the United States, whom the gen-
tleman from New- York had declared ourfelves to
be the guardians of, to fave the people themfelves
from their greatefl enemies ; and to fave whom
from deftroying themfelves he had invoked this,
hcufe. Good God, faid Mr. Jackson, is it poiTi-'i
ble that I have heard fuch a fentiment in this body ? '
Rather lliould I have expe<5i:ed to have heard it
H ^
52
founded from the defpots of Turkey, or the dc-
ferts of Siberia, than to have heard it uttered by
an enlightened legiflator of a free country, and on
tbis floor.
But, let us examine how we are to get at the
creator. If the hon. gentleman will put us into the
way of doing this with effeft, I will abandon all my
arguments for this motion. Look to the conftitu-
tion, and fee how it is to be amended ? It can only
be amended on the recommendation of two thirds
gf both houfes ; or on the application of two thirds
of the dates, a convention fliall be called, who arc
to propofe amendments, afterwards to be ratified by
three-fourths of the dates.
There is firfl then required two thirds of both
houfes of Congrefs. Can this two thirds be found
now, QT is there any probability of its being found
for 20 years to come, who will concur in making the
neceflary alterations in the judiciary fyftcm that are
now, or may hereafter, be required ? On this fub-
fubjefl there are as many opinions as there are pcr-
fons on this floor. I have indeed never found two
perfons precifely agree. How then can wc expect
three-fourths of the legiflatures of the feveral dates
to agree, when we cannot agree among ourfclvcs.
There is in faft no amendment which could reach'
the cafe, and exhibit to view all the requifite and
ncceffary regulations for fuch an extent of coun-
try. Such an attempt mud form a volume, a con-
ditution by itfclf, and, after all, fall fliort of the ob-
53
power to alter the judiciary fydem vefts not here,
it vefts no where. It follows from the ideas of gen-
tlemen that we mufl fubmit to all the evils of the
prefent fyftem, though it fliould exhibit all the hor-
rors of the inquifition.
But gentlemen fay, the United Stares embrace
ik'vaft extent of territory, from 150010 1700 miles
in length. What is the inevitable deduction to be
drawn from this faft ? Why, that a fyftem which
is to apply to this extent of country, embracing dif-
ferent laws, and different habits, will require fre-
quent alteration ; whereas, if we are tied down
to a fyftem of inferior tribunals once formed, we
cannot even touch the plan of the judicial fyftem
of the little diftrift of Columbia. Nor can we
touch the inferior jurifdiftions in the North- Weftern
Territory, or in the Miffifippi Territory, in both
of which the fyftems were acknowledged to be adapt-
ed only to prefent circumftances, and in the laft of
which, the rights of Georgia were implicated. It
follows, that v/hatever thefe rights may be, the fyf-
tem is facred ; and as to the Miffifippi Territory,
if grounded on this doctrine, notwithftanding the
claim of Georgia, her jurifdi<^ion is totally loft. To
revert to the fedinon law. If the dotrine fupportcd
now were true j then had the fedition law been in-
corporated as a fyftem by itfelf, an inferior tribu-
nal, and officers been attached to it, would it have
been perpetually tacked to the conftitution j that
law under which fo many of our citizens had been
iraprifoned, for writings and fpeakings, and one
among others for wifliing that the wadding of a gun
had been lodged in a certain Prelidential part.
The sjentlcman had dwelt on the inconvenien-
CCS and evils of the old fyftem, and had particularly
condemned that part of it, which as he termed it,
converted the judges into poft-boys. But, 1 will ap-
peal to the gentleman, if, in England, where fo much
more bufmefs is done, there are more than 1 2 judges,
and Avhether thofc judges do not ride the circuit*
And why (hall our judges not ride the circuits ?
Shall we have fix judges fitting here to decide cafes
which require a knowledge of the laws, the morals,
the habits, the (late of property of the feveral dates ?
Would not this knowledge be much better obtained
by their riding the circuits, and in the dates dicm-
felvss making themfelves acquainted with whatever
relates to them, and the cafes of appeals to come
before them. It has been remarked by a celebrated
writer on the Englifli conditution, that one of the
greated political evils that could befal a people, was
the exidence of large judiciary bodies. To illudrate
his ideas he had iudanced the Parliaments of France.
Iftbefpirit, which, ladfeflion, gave exidence to fix-
teen new judges, continued, who could fay by what
number they would be limited. They might indeed
foon become* what they had been likened to, an
army of judges.
I do not wi(h to be fevere in my remarks on the
conduft of the late adminiilration. I admire the
private charafter of Mr. Adams. But I do believe
the fucceihon of his poHtical afts tended ultimately
.tQ; accumulate in, and attach all powers to, a parti-
cular perfon or favourite family, .j.^.^t...
If I wiflied to beftow on Mr. Jefferfon this mafs
of patronage, which I contend this horde ot officers
beftows, I fliould be in favour of the bill thai it is
now moved to repeal ; but as a political perfon, I
am no more for Thomas Jefferfon than for John
Adams. "When he ai:s according to my opi-
nion, right, I will fupport him ; when wrong, op-
pofe him ; and I truft a majority on this floor will
aft in the fame way.
A gentleman from Maflachufetts, has afked, if
fuifs will go on diminiihing, and if the millenium is
fo near at hand. Sir, different opinions are hcl4
oo, this fubjeft ; for fome fuppofe the millenium ,t^
have arrived long lince, and others that it may ar-
rive, and, others again, that it never w'ill arrive ;
but there is one thing certain, that the more
courts you have, the greater temptation there is for
litigation, and more fuits, or rather evils, will flow
from them. Law itfelf is but a neceflfary evil ^ for
if mankind were perfeft, were it not for their frail-
ties and paflions, there would be no occaflon for it ;
and lawyers are a (i]\\ greater evil,, although, h?
acknowledged, a necpflaryr ,(^(?^ "^1^^? . iel dora
difcourage litigious fuitors* a^d. ..fwarjogi in our
courts J and there are here, as well as in every
56
other countiT, pei fons fo fond of law and of pcr-
fecution, that rather than not be in courts at all,
they would direft their lawyers, as I have been for-
merly told of a man who applied for advice, and
was informed he had no ground of aflion, to bring
then a fpite ation. The ftate courts are open and
competent to mod of the inferior court bufinefs, and
it ought to be thrown into that channel as much as
poflible.
With rcfpefl: to the ufefulnefs of the additional
judges, created by theaftof laftfeflion, it was perhaps
unnecefTary to add any thing to what had been fo ably
obferved by the gentleman from Kentucky. But I
will flate, for the information of the Senate, that in
the fouthern dates of Georgia, South and North
Carolina, a ground of great litigation is removed,
one which had originated at leaft two hundred and
fifty fuits. Miller & Co. had obtained a patent for
a ginning machine, (God knew where it came from,
but I believe that neither of them invented it,) fo as
to make thofe flates tributary to them, and embroil
them in difputes. South Carolina had purchafed the
patent for fifty thoufand dollars, and had therefore
dried up this fource of litigation in that date.
The recovery of Britiih debts, too, ^i'as nearly
over. This had been a fruitful fource of litigationl
Our citizens had been fued, and their late hard
earnings of property had been feized, to fatisfy Bri-
tifli demands, whilft their former property had been
taken from them by Britifh arm, during the war.
i
57
I am furprlfed to hear the cry, that our liberties
and theconftitution are endangered, from the quar-
ter from which it is now urged. Whenfuch remarks
had been made by thofe gentlemen with whom I ge-
nerally aled on former occafious, the inilantaneous
cry was againfl demagogues, who, by artfully in-
flaming the paffions of the people againfl the govern-
ment, wifhed to break down the confiitution.
A gentleman had talked about a vi<5^ory medi-
tated over the conftitution. Not by the Prefident.
Not by us. By whom then was it m.editated ? Was
it by the Houfeof Reprefentatives ? Or was it by
the people themfelves ; that fame people whom we
were lo fave from their greateft enemy, themfelves ?
For my part, I believe in the meditation of no fuch
viftory. Sooner, for my part, than participate in it,
by voting for this refolution, if I thought it would
have fuch a tendency, I would cut off my hand, or
cut out my tongue. I refpeft and love the confii-
tution, and my great wifli is, with father Paul, to
cry out, as refpe6i:s it, esto perpefua.
Mr. Tracy, of Connecticut. Feeble as I am,
I have thought it my duty to offer my fentiraents on
this fubjeft. Owing to the feverity of indifpofition,
I have not been in my place, nor have I heard any
of the difcuffion. This circumflance will be my
apology, if, in the remarks I fliall make, repeti-
tions fliall occur, on the one hand, and apparent in-
attention to arguments, on the other.
58
Having been a member of this government dur-
ing fcveral years, and being imprefTed with the
dilHcuhics attending the formation of a judiciary
fyftem, I think it proper to give a concife hiftory of
legidative proceedings, on this important fubjeft.
Permit me to fay, fir, that the firft inflitution of
fuch a fyftem, muft be an experiment. It is impof-
fible to afcertain, until tried, the effects of a fyflem,
co-extenfive with the vafl territory of the United
States, and which ought to be adapted to the differ-
ent laws and habits of the different dates.
Soon after the firft law was enafted, as early as
the year 1793, and, I believe, fooner, complaints
were m.ade of the fyftem of drcuit courts. The
Union then being divided into three circuits, and
two of the fix judges were obliged to attend each
court, if one judge failed, all the bufmefs, of courfe,
was continued to the next term. Judges complain-
ed of the diftance they had to travel, and iuitors
and lawyers complained of delays. In 1793, if my
memory is correft, the law pafli'd allowing one jndgd
to attend, with the diftrift judge in each diftrift, with
fome other modifications not important in the prefent
view of the fubjc<5t^. If, by reafon of di:!:ance, bad-
ncfs of roads, ficknefs, or any other accident, this
one judge failed of attendance, or if he and the
diftri and adorn-
ed the profellional robe they have worn, and am
therefore not obliged to be particular that I may
be underflood ; a word to the wife will be fufficient.
A judiciary, in a national point of view, is abfolute-
ly neceiTary, and an extenfion of it to every national
64
purpofc is equally aeceflary. To depend upon (late
courts, not under obligations, nor amenable to
you, befides having as much bufmefs allotted to them
by the refpeclive dates as ^hey can accompiifli, and
depending upon them, and not on us for exiftence ;
will require only to be mentioned, to be expJo(ied,
Locating your judges in various parts of the coua*
try, by them promulgating the national laws, which
it is well known has been a fubjeft of great diiiicul-
ty, and giving them daily opportunity of nuxing
with people, not well difpofed to order and law j
may prevent diforders, and infun eftions, and feve
millions of expenfe, which pecuniary faving will be
the lead of the important events arifing from fuch a
fyftem.
But it will probably be faid, the courts have
not bufmefs to employ them ; and the documents
received from the executive will be produced in
evidence. And it may further be faid, the Preii-
dent has, in his meflage, recommended a repeal
of this law. The words of the meflage are, " The
judiciary fyftem of the United States, and efpccially
that portion of it lately erefted, will of courfe prc-
fent itfelf to the contemplation of Congrcfs ; and
that they may be able to judge of the proportion
which the inflitution bears to the bulinefs it has to
perform, I have caufed to be procured from the fe-
veral dates, and now lay before Congrefs, an exaft
ftatement of all the caufes decided fince the firfl
cflabhfhraent of the courts, and of thofe that were
65
depending when additional courts and judges ^wcre
brought in to their aid."
'Is this a recommendation to repeal ? Suppofe
for argument fake it is. Let us look at this " ex-
aft'** ftatement. In the recapitulation, 19th page
of document 8, there appears to have been inflitut-
ed 8276 fuits, and pending when this court went
into operation, 1539. But on further infpeftion, it
' will be found that Maryland is entirely omitted :
this omiiTion is unaccountable, fmce the means of
knowledge were fo near at hand. 119 caufes un-
decided in Tenneflee ; 1 34 in North-Carolina, and
^^i fn Virginia, arc omitted ; making in the whole
an error of 5 or 600 caufes. In addition to this the
number of fuits in New-York are not flated correft-
ly by the ftatement of the attorney when he made
the return, and not one is carried out as pending in
the recapitulation ; and the return of MalTachufetts
is incorredl on its face ; fo that nothing more than
conjer6v
ceeded :
And yet our judges, who are extremely tenaci-
ous of their rights, did not complain. They
thought, as I think, that they fliould ftot be remov-
ed from their offices that others might be phced inr
them, and that, while they did continue in office,
their falarles fliould be preferved to them. And I
believe the whole of our conftitutional provifion
Amounts to this : that, unlike other officers appoint-
ed by the Prefident, they fliallnot be removed by
him ; that their falaries fliall not be diminiflied by
the legiflature ; and that, while the leglflature ma^
continue any particular judicial eftablifliment under
which a judge is appointed, he ihall hold that ap-
pointment in defiance of both the other departments'
of government. A judge xiiay fay, I am not to be
turned out of office by the Preiident on the one
hand, or flarved b}' the legiflature on the other. "
He may fay to the legiflature, or the Prefident, and'
to both of rhem combined, you fliall not turn mc
out of this office as long as it exifls, to gratify your
enmity to me, or your favouritifm to another per-
M
84
foil J fo long as the intcrcfl: and convenience of the
people require this inftitution, they are entitled to
my fervices, they fhall have them, and I will be paid
for them, to the utmofl: farthing, in fpite of your
difpleafure or caprice.
Notwithflanding the remarks of gentlemen, I
am inclined to think thefe ideas of the extreme in-
dependence of the judges, and the limited powers of
the legiflature, are not very old, but that they are
of modern origin, and have grown up fince the lafl
fefllon of Congrefs. For, in the law pafled lafl fef-
fion, that very law which it is now propofed to
repeal, is to be found a praftical expofition in direft
hoftiiity with the principle now contended for,
which does not betray that facred regard for the
office of a judge, that is, on this occafion, profefTed :
in that very law will be found a claufe which abo-
lifhes two diftrift courts. The 24th feftion fays,
exprefsly, " The diftrifl courts of Kentucky and
Tenneflee fliall be, and hereby are, aboliflied." Will
gentlemen tell this houfe how this exprefs provifion
came into the ad of the laft; fefllon ; and will they
fay, that though they voted for this law, yet no
power cxifts in the legiflature to abolifli a court ? It
is true, that it has been faid, that though you put
down two diftri(ft courts, you promoted the officers
by increafmg their falaries, and making them judges
of the circuit courts ; but the faft is, you have abo-
lifhed their offices ; they are judges no longer of
the difl:rifls of Kentucky and Tenneflee j and they
85
are, to every purpofe, whatever may be their name,
in reality, circuit judges. Though you have not
lefTened their falarics, you have deprived them of
their offices. However, therefore, gentlemen may
calculate as to the benefit, or injury, done thefe two
judges, the principle is not afFeled by any refult
their offices are gone.
It is not enough to fay, that though you deflroy-
ed their offices, you offered them others with
higher falaries. You took away from them, in
exprefs terms, their offices, by abolifhing the offices.
You had flripped them of their offices, you had
robbed them of their vested right ^ and then, to
make friends, offered them a compenfation ; but
whether the compenfation thus offered for the de-
privation they had fuffered, was really equivalent
to their lofs, is a mere matter of calculation, and
does not affeft the conflitutional principle. It is
proper, however, to obferve, that they were no par-
ties to the propofed compromife, and that, indeed,
they had no choice left them. They were obliged
to accept of what you offered them, or have no-
thing. If they did not agree to become judges of
the newly organized circuit courts, they could not
remain judges of the diftrift courts, for thefe courts
were abfolutely and completely aboliflied.
Were I, Mr. Prefident, to make a calculation on
the comparative increafe of duties and additional
falary, in the cafe of one of thofe gentlemen (Judge
Innes, of Kentucky) I fliould have no hefitation to
86
fay, that the bargain, which has been made without
his confcnt, ^nd without his being a party to it, is
a very bad one for him. Knowing, too, his parti-
cular fituation, I am perfuaded, that if the law had
left him any election between his former and new
fituation, he would have preferred remaining
where he was ; and, without a moment's hefitation,
he would have reje^ed your proffered promotion,
as it is called. This gentleman refides within a few
miles of Frankfort, where, as diftrift judge of Ken-
tucky, he held his court. Attached to domeftic
life, and enjoying all its felicities, engaged in, and
pleafed with, agricultural purfuits, he was never
under the neceflity, even during the fclTions of
the courts, to flecp out of his own bed one night,
or to be feparated a fmgle day from his family. He
could, every morning, give dire&ions for the ma-
nagement of his farm, and return, early enough in
the evening, to fee whether his orders were exe-
cuted.
How is he fituated under the change which hjis
been forced upon him ? Inftcad of attending one
court, almoft at his door, your late law requires
him to attend four the nearefl: at Bairdftown,
fifty or fixty miles from liome. You oblige him to
travel, through dreary and inhofpitabie regions, to
the North Wcftern Territory, fomething diort of
an hundred miks ; and much greater diftances tO;
and through, Hill worfe countries, Knoxviile, and
Naihville, in Tcnnellee. In going from one to the
87
other of thofc 1 aft mentioned places; he will have t^
pafs through the country of the Cherokee Indians,
nearly one hundred miles over the Cumberland
mountains, where he will be expofed to every in-
clemency of the weather, without a flielter to fetire
to, far there is not a houfe, or a hut, in the whple
journey ; a journey, in which all travellers ajre
obliged, at all times, and of unavoidable ncceiffity,
to fleep one night at leaft, and from the fall of rains,
and rife of water courfes, often many nights, with-
&<7// tfx/, it equally declares, that the Con-
grefs shall ordain and eftablilh them. I fay they
shall ; this is the evident intention, if not the ex-
prefs words, of the conilitution. The convention
in framing, the American people in adopting, that
corapa6l, did not, could not prefurae, that the Con-
115
grefs would omit to do, what they were thus bound
to do. They could notprefume, that the legiflature
would hefifafe one moment, in eflablifhing the or-
gans necefTary to carry intoefFed thofe wholefome,
thofe important provifions.
The honourable member from Virginia, has giv-
en us a hiflory of the judicial fyftem, and in the
courfe of it, has told us, that the judges of the fu-
preme court knew, when they accepted their offices,
the duties they were to perform, and the falaries
they were to receive. He thence infers, that if
again called^ on, to do the fame duties, they have no
right to complain. Agreed. But that is not the
queflion between us. Admitting that they have
made a hard bargain, and that we may hold them
to a flril performance, is it wife to exa^l their com-
pliance to the Injury of our conftituents ? We are
urged to go back to the old fyftem ; but let us firft
examine the effefts of that fyftem. The judges of
the fupreme court rode the circuits, and two of them
with the affiftance of a diftridl: judge, held circuit
courts, and tried caufes. As a supreme court they
have in moft cafes only an appellate jurifdifti on. In
the firft inftance, therefore, they tried a caufe fitting
as an inferior court^ and then on appeal, tried it
over again as a supreme court. Thus then, the ap-
peal was from the fentence of the judges, to the
judges themfelves. But fay, that to avoid this im-
propriety, you will incapacitate the twojudges, who
fat on the circuit, from fitting in the fupreme court.
IIG
to review their own decrees. Strike thera ofF: and
fuppofe, either the fame, or a contrary decifion to
have been made on another circuit, by two of their
brethren in a fimiiar cafe. For the fame reafon you
ftrike them off, and then you have no court left.
Is this wife ? Is it fafe ? You plaqe yourfelf in a
fituation, where your citizens muil be deprived of
the advantage given to them of a court of appeals,
or elfe run the greatefl: rifle that the decifion
of the firfl court will carry with it that of the
others.
The fame honourable member, has given us a
hiflory of the law pafled the laft feffion, which he
wifhes now to repeal. That hiftory is accurate at
lead in one important part of it. I believe, that all
amendments were rejected, pertinaciously rcjefted :
and I acknowledge, that I joined heartily in that
rejeftion. It was for the cleared reafon on earth.
We all perfeftly underflood, that to amend the bill,
was to destroy it. That if ever it got back to the
other Houfe, it would pcrifli. Thofe, therefore,
who approved of the general proviiions of that bill,
were determined to adopt it. We fought the prac-
ticable good, and would not, in purfuit of unattain-
able perfcftion, facrificc that good to the pride of
opinion. We took the bill, therefore, with its im-
perfedions, convinced that when it was once palTed
into a law, it might be cafily amended.
We are now told, that this procedure was im-
proper J nay, that it was indicent. That pubUc
tip'mion had declared itfelf againfl: us. That a ma-
jority Cholding dlfFerent opinions') w^s already cho-
sen to the other houfe ; and that a firailar majority
was expected for that in which we fit. Mr. Prefi-
dent, are we then to underitand, that oppofition
to the majority in the two houfes of Congrefs is im-
proper^ is indecent ? If fo what are we to think
of thofe gentlemen, who not only with proper and
decent, but with laudable motives, (for fuch is their
claim) fo long, fo perfeveringly, fo pertinacioufly,
oppofed that voice of the people, which had fo re-
peatedly, and for fo many years, declared itfelf
againfl: them, through the organ of their reprefen-
tatives ? Was this indecent in them ? If not,
how could it be improper for us to feize the only
moment which was left for the then majority to do
what they deemed a neceffary a6: ? Let me again
refer to jhofe imperious demands of the conflitution,
which called on us to eftablifli inferior courts. Let
me remind gentlemen of their alTertion on this floor,
that centuries might elapfe before any judicial fyf-
tem could be eftabliflied with general confent. And
then let me afk, being thus impreifed with a fenfe
of the duty, and the difficulty of performing that
arduous taik, was it not wife to feize the aufpicious
momept ?
Among the many ftigmas affixed to this law,
we have been told that the Prefident, in felefting
men to fill the offices which it created, made vacan-
cies and filled them from the floor of this houfe.
iia
And that, but for the influence of this circumflance,
a majority in favour of it could not have been found.
Let us examine this fuggeftion. It is grounded on
the fuppofition of corrupt influence derived from a
hope, founded on two remote, and fucceflive con^
tingencies. Firft:, the vacancy might, or might not
exifl: ; for it depended as well on the acceptance of
another, as on the Prefldent's grant ; and Secondly,
the Prefident might, or might not fill it with a
member of this Houfe. Yet on this vague conjec-
ture, on this unfl:able ground, it is inferred, that men
in high confidence, violated their duty. It is hard
to determine the influence of felf-interefl: on the
heart of man. I fliall not, therefore, make the at-
tempt. In the prelcnt cafe it is poflible, that the
imputation may be jufl j but 1 hope not, I believe
not. At any rate gentlemen will agree with me,
that the calculation is uncertain and the conjedure
vague.
But let it now, for argument fake, be admitted,
faving always the reputation of honourable men,
who are not here to defend themfclves. Let it, 1
fay, for argument fake be admitted, that the gen-
tlemen alluded to, afted under the influence of im-
proper motives. AVhat then ? Is a law, that has
received the varied aflTent required by the conflitu-
tion, and is cloathed with all the needful formali-
ties, thereby invalidated ? Can you impair its force
by impeaching the motives of any member who
voted for it ? Does it follow, that a law is bad be-
119
caufe all thofe who concurred in it, cannot give good
reafons for their votes ? Is it not before us ? Muft
we not judge of it by its intrinfic merit ? I3 it a
fair argument, addreffed to our underftanding, to
fay we muft repeal a la,w, even a good one, if the
crafting of it may have been effefted in any degree
by improper motives ? Or is the judgment of this
Houfe fo feeble, that it may not be trufted ?
Gentlemen tell us, however, that the law is ma-
terially defeftive, nay, that it is unconftitutional.
What follows ? Gentlemen bid us repeal it. But
is this juft reafoning ? If the law be only defeftive^
why not amend ? And if unconftitutional, why re-
peal ? In this cafe no repeal can be neceiTary j the
law is in itfelf void j it is a mere dead letter.
To fliew that it is unconftitutional, a particular
claufe is pointed out, and an inference is made, as in
the cafe of goods, where becaufe there is one con-
traband article on board, the whole cargo is forfeit-
ed. Admit for a moment, that the part alluded to
were unconftitutional, this would in no wife afte6t
the remainder. That part would be void ; or if you
think proper, you can repeal that part.
Let us, however, examine the claufe objefted
to on the ground of the conftitution. It is faid,
that by this law the district judges in Tenneftee andl
Kentucky, are removed from ofiice, by making them
circuit judges. And again, that you have by law
appointed two new offices, thofe of circuit judges^
and filled them by law, inftead of purfuing the
120
"ttiodes of appointment prefcribed by the conftitu-
tion. To prove all this, the gentleman from Virgi-
nia did us the favour to read thofe parts of the law
which he condemns ; and if I can trull to my memo-
ry, it is clear from what he read, that the law does
notrcmove thckdistricf Judges f neither does it ap-
point them to the office oi circuit judges. It does
indeed put down the distrid courts ; but is fo for
from deftroying the offices of diftrift judge, that it
declares the perfons filling those offices, fhall perform
the duty of holding the circuit courts. And fo far
is it from appointing circuit judges, that it declares
the circuit courts (hall be held by the district judges.
But gentlemen contend, that to discontinue the dif-
trii:s co\irts, was in effect to remcve the diftrift
judges. This, fir, is fo far from being a juft inference
from the law, that the dircft contrary follows as a
neccfTary result ; for it is on the principle that thefe
judges continue in office after their courts are dif-
continued, that the new duty of holding other
courts, is affigned to them. But gentlemen fay,
this doftrine militates with the principles we contend
for. Surely not. It m'uft be recolk;<5led, fir, that
we have repeatedly admitted the right of the legifla-
ture, to change, alter, modify and amend, the judi-
ciary fyflem, fo as bcfl to promote the interefl of
the people. We only contend, that you fhall not
exceed, or contravene the authority, by which you
aft. But, fay gentlemen, you forced this new office
on the dillrift judges, and this is in cffcft, a new
121
appointment. I anfwer, that the queflion can only
arife on the refufal of thofe judges to aft. But is
it unconflitutional toalTign new duties to officers al-
ready exifting ? I fear, that if this conftruftion be
adopted, our labours will fpeedily end ; for we fhall
be fo (hackled, that we cannot move. What is the
praftice ? Do we not, every day call upon particu-
lar officers, to perform duties, not previoufly affign-
ed to, or required of them ? And muft the execu-
tive, in every fuch cafe make a new appointment ?
But, as a further reafon to reflore, by repeahng
this law, the old fyftem, an honourable member
from North-Carolina, has told us, the judges of the
fupreme court fhould attend in the ftatcs, to ac-
quire a competent knowledge of local inflitutions,
and for this purpofe Ihould continue to ride the cir-
cuits. 1 believe there is great ufe in fending young
men to travel ; it tends to enlarge their views, and
give them more liberal ideas than they might other-
wife pofTefs. Nay, if they relide long enough in
foreign countries, they may become acquainted with
the manners of the people, and acquire fome know-
Jedge of their civil inftitutions. But I am not quite
convinced, that riding rapidly from one end of this
country to the other, is the bed way to fludy law.
I am inclined to believe, that knowledge may be
more conveniently acquired in the clofet, than upon
the high road. It is, morever, to be prefumed,
that the firfl magiflrate would, in felefting perfons
.to fill thefe offices, take the bed charafters from
122
the difFcrent parts of the country, who already pof-
fefs the needful acquirements. But admitting that
the Prefident fhould not duly exercife in this refpeft
his difcretionary powers, and admitting that the
ideas of the gentleman are correft, how wretched
muft be our condition ! Thefe, our judges, when
called on to exercife their fun^lions, would but be-
gin to learn their trade, and that too at a period of
life, when the iutelleclual powers with no great fa-
cility can acquire new ideas. We muft, therefore,
have a double fet of judges. One fet of apprentice
judges to ride circuits and learn, the other fet of
maffer judges to hold courts and decide controverfi-
fies.
We arc told, fir, that the repeal aflced for, is
important, in that it may eftablifli a precedent ; for
that it is not merely a queftion on the propriety of
difbanding a corps of fixteen rank and file ; but
that provifion may hereafter be made, not for fixteen,
but for fixteen hundred, or fixteen thoufand judges,,
and that it may become necefiTary to turn them to
the right about. Mr. Prefident, I will not, I can-
not prefume, that any fuch provifion will ever be
made, and therefore I cannot conceive any fuch ne-
cefiity ; I will not fuppofe, for I cannot fuppofe, that
any party or fiilion will ever do any thing fo wild,
fo extravagant. But I will afic, how does this
{Irange fuppofition confifl: with the doftrine of gen-
tlemen, tliat public opinion is a fuflScient check on *
the legillature, and a fufEcient fafe-guard to the
123
^'edple.'- Put the cafe to its confequences, and what
becomes of the check ? Will gentlemen f;iy it is to
be found in the force of this wife precedent ? Is this
to control fucceeding rulers in their wild, their mad
career ? But how ? Is the creation of judicial offi-
cers the only thing committed to their difcretion ?
Have they not, according to the doflrine contended
for, our all at their difpofition, with no other check
than public opinion, which, according to the fuppo-
fition, will not prevent them from committing the
greateft follies, and abfurdities ? Take then all the
gentleman's ideas, and compare them together, it
will refult that here is an ineRimable treafure, put
into the hands of drunkards, madmen, and fools.
But away with all thefe derogatory fuppofitions.
The legiflature may be trufted. Our government
is a fyftem of falutary checks. One legiflative branch
is a check on the other. And fliould the violence
of party fpirit bear both of them away, the Prefix
dent, an officer high in honour, high in the public
confidence, charged with weighty concerns, refpon-
fible to his own reputation, and to the world, (lands
ready to arreft their too impetuous courfe. This
is our fyftem. It makes no mad appeal to every
mob in the country. It appeals to the fober fenfe
of men fele(5led from their fellow-citizens, for their
talents, for their virtue of men in advanced life,
and of matured judgment. It appeals to their un-
derftanding, to their integrity, to their honour, to
their love of fame, to their fcufe offliame. If all
R
124
thefc chcctcs (liould prove infufficient, and alas ! fuch
is the condition of human nature, that I fear they
will not always be fufficient, the conflitution has
given us one more. It has given us an independent
judiciary. We have been told, that the executive
authority carries your laws into execution. But let
us not be the dupes of found. The executive magi-
ftrate commands indeed your fleets and armies ; and
duties, impofls, excifes, and all other taxes, are col-
lefted, and all expenditures are made by officers
whom he has appointed. So far indeed he executes
your laws. But thefc, his afts apply not often to
individual concerns. In thofe cafes (o important to
the peace and happinefi of fociety, the execution of
your laws is confided to your judges. And therefore
are they rendered independent. Before then, that
you violate that independence Paufe. There are
ftate fovereignties, as well as the fovercignty of the
general government. There are cafes, too many
cafes, in which the intereft of one, is not confidered
as the intereft of the Qther. Should thefe conflift,
if the judiciary be gone, the queftion is no longer of
law, but of force. This is a ftate of things which no
honeft and wife man can view without horror.
Suppofe, in the omnipotence of your Icgiflative
authority, you trench upon the rights of your fel-
low citizens, by pafling an unconftitutional law : if
tlie judiciary department prelerve its vigour, it will
flop you fhort, Inftcad of a refort to arms, there
125
will be a happier appeal to arguments Suppofc a
cafe ftill more irapreflive. The Prefident is at the
head of your armies. Let one of his generals,
jBuflicd with viftory, and proud in command, pre-
fume to trample on the rights of your mofl: infigni-
ficant citizen. Indignant of the wrong, he will
demand the protection of your tribunals ; and, fafe
in the fliadow of their wings^ will laugh his op-
prcflbr to fcorn.
Having now, I believe, examined all the argu-
ments adduced to fhew the expediency of this mo-
t'loi^j and which, fairly fiftcd, reduce themfelves at
laft, to thefe two things, reftore the ancient fyf-
tem, and fave the additional expenfe, before I
clofej what I have to fay on this ground, I hope I
Ihall be pardoned for faying one or two words about
the expenfe. I hope, alfo, that notwithftanding
the epithets which may be applied to my arithmetic,
I ftiali be pardoned for ufnig that which I learnt
at fchool. It may have deceived me when it taught
that two and two make four. But, though it
ihould no'w be branded with opprobrious terms,
I muft sfill believe, that two and two do sti/l make
four. Gentlemen of newer theories, and of higher
attainments, while they fmile at my inferiority,
muft: bear with my infirmities, and take me as I am.
In all this great fyftem of faving, in all this oflen-
tatious economy, this rage of reform, how happens
it that the eagle eye has not yet been turned to
the mint i That no one piercing glance has beea
126
able to behold the expenditures of that department ?
I am far from wifhing to overturn it. Though it
be not of great nccclTity, nor even of fubflantial
importance ; though it be but a fplendid trapping
of your government : yet, as it may, by impreffing
bn your current coin, the emblems of your fove-
rcignty, have fome tendency to encourage a nation-
al fpirit, and to folter the national pride, I am
willing to contribute my fliare to its fupport. Yes,
fir, I would fofter the national pride. I cannot, in-
deed, approve of national vanity, nor feed it with
vile adulation. But I would gladly cheriih the
lofty fentiment of national pride. I would wifli my
countrymen to feel like Romans, to be as proud as
Engliflimen, and, going lUll further, I would wifli
them to veil their pride in the well-bred modefty of
French politenefs. But, can this eftablifliment, the
mere decoration of your political edifice, can it be
compared with the maffy columns on which rcfl
your peace and fafety ? Sha.ll the flriking of a few
half-pence be put into a parallel with the diflribu-
tion of juilice ? I find, fir, from the eflimates on
your t.^ble, that the falaries of the officers of your
mint amount to 10,600 dollars, and that the expen-
fes are eflimated at 10,900 ; making 21,500 dol-
lars.
I find, that the aftual expenditure of the lafl:
year, exclu five of falaries, amounted to 25,154 44
Add the falaries, 10,600
We have a total of, Dollars, 35^75^ 44
A fum which exceeds the falary of thefc fixteen
judges.
I find, further, that during the lafl: year they
have coined cents and half cents to the amount of
1 0,473 dollars and 29 cents. Thus, their copper
coinage falls a little ihort of what it cofts us for
their falaries. We have, however, from this efta-
bliihment, about a million cents, one to each family
in America. A little emblematic medal, to be hung
over their chimney pieces j and this is all their com-
penfation for all that expenfe. Yet, not a word has
been faid about the mint ; while the judges, whofe
fervices are fo much greater, and of fo much more
importance to the community, are to be (truck off
at a blow, in order to fave an expenfe, which, com-
pared with the object, is pitiful. What conclufion,
then, are we to draw from this predilection ?
I will not pretend to affign to gentlemen, tbe
motives by which they may be influenced ; but if I
fhould permit myfelf to make the inquiry, the flyle
of many obfervations, and more efpecially the man-
ner, the warmth, the irritability, which have been
exhibited on this occalion, would lead to a folution
of the problem. I had the honour, fir, when I ad-
drefTed you, the other day, to obferve, that I believ-
ed the univerfe could not afford a fpe(5tacle more
fublime, than the view of a powerful flate kneeling
at the altar of juftice, and facrificing there, her paf-
lion and her pride. I'hat I once follered the hope
of beholding that fpeftacle of magnanimity in Anxe-
1^
rica. And now, what a world of figures has the
gentleman from Virginia formed on his mifappre-
henfion of that remark. I never exprefTed any
thing like exultation at the idea of a ftate ignomini-
oufly dragged in triumph, at the heels of your
judges. But, permit me to fay, the gentleman's
cxquifite fenfibility on that fubjcft, his alarm and
apprehenfion, all fhew his flrong attachment to ftatc
authority. Far be it from me, however, to charge
the gentleman with improper motives. I know that
his emotions arife from one of thofe imperfect ions
m our nature, which we cannot remedy. They
are excited by caufes which have naturally made
him hoflile to this conftitution, though his duty
compels him, reluftantly, to fupport it. I hope,
however, that thofe gentlemen, who entertain dif-
ferent fcntiments, and who are lefs irritable on the
fcore of (late dignity, will think it eflential to pre-
ferve a conftitution, without which, the independent
cxiftence of the flates themfelves, will be but of
fhort duration.
This, fir, leads me to the fecond object I had
propofed. I fliall, therefore, pray your indulgence
while I confider how far this meafure is constitw
tionaL
I have not been able to difcover the expediency,
but will now, for argument's fake, admit it ; and
here, I cannot but exprefs my deep regret for the
fituation of an honourable member from North-
Carolma, Tied hft, as he is, by his inftrulions,
129
arguments, however forcible, can never be effet^ua'I.
I ought, therefore, to wifh, for his fake, that his
mind may not be convinced by any thing 1 fliall fay j
for hard, indeed, would be his condition, to be
bound by the contrarient obligations of an order,
and an oath. I cannot, however, but exprefs my
profound refpe6l for the talents of thofe who gave
bim his inftruftions, and who, fitting at a diflance,
without hearing the arguments, could better under-
ftand the fubjel than their fenator, on this .flopr,
after full difcuffion.
The honourable member from Virginia, has
repeated thcdiftinftion, before taken, between the
fupreme and the inferior tribunals ; he has infifled on
the diflin6tion between the words Jhall and may ;
has inferred, from that diitincflion, that the judges
of the inferior courts are fubjeds of legiflative dif-
cretion j and has contended, that the word may^ in-
cludes all power refpe^ling the fubjecl to which it is
applied j confequently, to raife up, and to put
down, to create, and to deftroy. 1 raufl: entreat
your patience, fir, while I go more into this fubje^
than I ever fuppofed would be necefTary. By the
article, fo often quoted, it is declared, " That the
Judicial power of the United States, JI?aU be vefted
in one fupreme court, and in fuch inferior courts,
as the Gongrcfs 7nay, from time to time, eflablifh.''
I beg leave to recall your attention to what I have
already faid of ,tliefe inferior courts. That the ori-
ginal Jurisdiclion of various subjects being givcp. eX"
i3o
to them, it became the bounden duty of Con-
gress to establish such courts. I will not i-cpeat the
argument already ufed on that fubjeft*. But I will
a/k thofc who urge the diftinftion between the
fnpreme court and the inferior tribunals, whether a
Jaw was not previoufly nccelTary before the fnpreme
court could be organized. They reply, that the
conftitution fays, there shall be a fupreme court,
and, therefore, the Congrefs are commanded to
organize it, while the reft is left to their difcrction.
This, fir, is not the fal. The conftitution fays, the
judicial power ftiall be vefted in one fupreme courts
and in m{fix\ox courts. The legiflature can, there-
fore, only organize one fupreme court, but they
may eftablifh as many inferior courts as they (hall
think proper. The defignation made of them, by
the conftitution, is, fuch inferior courts as the Con-
grefs may, from time to time, ordain and establish.
But why, fay gentlemen, fix precifely one fupreme
court, and leave the reft to legiflative difcretion }
The anfwer is fimple. It refults from the nature of
things, from the cxiftent and probable ftate of our
country. There was no difficulty in deciding, that
one, and only one, fupreme court would be proper or
neceffary, to which fliould lie appeals from inferior
tribunals. Not fo as to thefe. The United States
were advancing in rapid progreffion. Their popu-
lation, of three millions, was foon to become five,
then ten, afterwards twenty millions. This was
'well known, as far as the future can become an ob?
131
jeA of human comprehenfion. In this increafe of
numbers, with a flill greaterincreafcof wealth, with
the extenfion of our commerce, and the progrcfs of
the arts, it was evident, that, although a great ma-
ny tribunals would become neceiTary, it was impof-
fible to determine either the precife number or the
moft convenient form. The convention did not
pretend to this prefcience ; but had they poffelTed
it, would it have been proper to have cflablifhed,
then^ all the tribunals neceffary for all future times?
Wotild it have been wife to have planted courts
among the Chickafaws, the Chocktaws, the Che-
rokces, the Tufcaroras, and God knows how ma-
ny more, becaufe, at fome future day, the regions
over which they roam might be cultivated by polifli-
ed men ? Was it not proper, wife, neceffary, to
leave in the difcretibn of Congrefs, the number
and the kind of courts, which they might find it
proper to establish for the purpofe defignated by
the conftitution. This fimple ftatement of fafts,
fafts ot public notoriety, is, alone, a fufficient
comment on, and explication of, the word, on
which gentlemen have fo much relied. The con-
vention in framing, the people in adopting, this
compaft, fay, the judicial power Jhall extend to
many cafes, the original cognizance whereof fhall be
by the inferior courts ; but it is neither neceffary,
nor even poffible, now to determine their number
or their form ; ^ihat effential power, therefore, flialL
veft in fuch inferior courts, as the Congrefs may^'
132
from time to time, in the progreflion of time, and
according to the indication of circumftances, est a'
bitsh. Not provide or determine, but establish.
Not a n^re temporary provifion, but an establish'
ment. If, after this, it had faid, in general terms^
that^W^^j fliould hold their offices during good be-
haviour, could a doubt have exifted on the interpre-
tation of this aft, under all its attending circumftan-
ces, that the judges of the inferior courts were in-
tended, as well as thofe of the fupreme court ?
But did the framers of the conftitution ftop there ?
Is there then nothing more ? Did they rifque on
thefe grammatical niceties the fate of America ?
Did they reft here the moft important branch of
our government ? Little important, indeed, as to
foreign danger ; but infinitely valuable to our
domeftic peace, and to perfonal protection againft
the oppreffion of our rulers. No. Left a doubt
(hould be raifed, they have carefully connefted the
judges of both courts in the fame fentence ; they
have faid, " the judges both of the supreme and in--
ferior courts," thus coupling thom infeparably toge-
ther. You may cut the bands, but you can never
untie them. With falutary caution, they devifed
this claufe, to arreft the overbearing temper, which,
they knew, belonged to legillativc bodies. They
do not fay the judges, fimply, but the judges of
the supreme and inferior courts, fhall hold their
offices during good behaviour. They fay, there-
fore, to the legiflature, you may judge of the pro-
133
pricty, the utility, the neceflity, of organizing thefe
courts } but, when establijhed, you have done your
duty. Anticipating the courfe of paflion, in future
times, they fay, to the legiflature, you fhall not dif-
grace yourfeives, by exhibiting the indecent fpefta-
cle, of judges, eftablifhed by one legiflature, re-
moved by another. We will fave you alfo from
yourfeives. We fay, thefe judges Jhall hold their
offices ; and furely, fir, to pretend that they can
hold their office, after the office is deftroyed, is
contemptible.
The framers of this conflitution had feen much,
read much, and deeply reflefted. They knew, by
experience, the violence of popular bodies j and,
let it be remembered, that fince that day, many of
the ftates, taught by experience, have found it
neceffary to change their forms of government, to
avoid the effects of that violence. The convention
contemplated the very acl you now attempt. They
knew alfo the jealoufy and the power of the dates j
and they eftablilhed, for your and for their protec-
tion, this mod important department. I beg gen-
tlemen to hear and to remember what I fav. It is
this department alone, and it is the independence
alone of this department, which can fave you from
civil war. Yes, fir, adopt the language of gentle-
men ; fay, with them, by the aft to which you are
urged, " If we cannot remove the judges, we can
deftroy them." Eftablifli thus the dependence of
the judiciary department* Who will refort to them
for proteftion againft you ? Who will confide in.
134
who will be bound by their decrees ? Are we then
to rcfort to the ultimate reafon of kings ? Are
our arguments to fly from the mouths of our
cannon ?
We arc told that we may violate our conftitu-
tion, becaufe fimilar conflitutions have been violat-
ed elfewhere. Two ftates have been cited to that
cffcft, Maryland and Virginia. The honourable
gentleman from Virginia, tells us, that when this
happened, in the ftate he belongs to, no complaint
was made by the judges, I will not enquire into
that faft, although I have the protefl: of the judges
now lying before me ; judges, eminent for their
talents, renowned for their learning, refpeftable for
their virtue. I will not enquire what conflitutions
have been violated. I will not aik either when
or where this dangerous praftice began, or has
been followed. I will admit the fa^l. What does
it prove ? Does it prove, that, becaufe they have
violated, we alfo may violate ? Does it not prove
diredly the contrary ? Is it not the llrongefl: rea-
fon on earth for prefcrving the independence of our
tribunals ? If it be true that they have, with
ftrong hand, fcized their courts, and bent them to
their will, ought we not to give fuitors a fair
chance for juftice in our courts, or raufl the fuflTer-
ing citizen be deprived of all protection ?
The gentleman from Virginia has called our at-
tention to certain cafes, which, he confiders as
forming ncceffary exceptions to the principles for
135
which we contend. Permit me to fay, that neccfll-
ty is a hard law, and frequently proves too much ; .
and. Jet the gentleman recoUeft, that arguments
which prove too much prove nothing.
He has inftanced a cafe where it may be pro-
per to appoint commiilloners, for a limited time,
to fettle fome particular defcription f controverfies.
Undoubtedly it is always in the power of Congrefs
to form a board of commiffioners for particular
purpofes. He a/ks, arc these inferior courts, and
muft they alfo exift forever ? I anfwer, that the
nature of their offices mufl depend upon the law
by which they are created ; if called to exercife the
judicial funftions, defignated by the conftitution,
they muft have an exiftence conformable to its in-
junftions.
Again, he has inftanced the Miflifippi territory,
claimed by, and which may be furrendered to, the
ftaie of Georgia, and a part of the Union, which
may be conquered by a foreign enemy. And he
afks, triumphantly, are our inferior courts to re-
main after our jurifdiftion is gone ? This cafe
refts upon a principle fo fimple, that I am furprifed
the honourable member did not perceive the anfwer
in the very moment when he made the objeftion.
Is it by our aft that a country is taken from us by
a foreign eaemy? Is it by our confcnt that our
jurifdiftion is loft ? I had the honour, in fpeaking
the other day, exprefsly, and for the moft obvious,
reafons, to except the cafe of conqueft. As welj.
136
ipight we contend for the government of a town
fwallowed up by an earthquake.
General Mason explained : He had fuppofcd
the cafe cf territory conquered, and afterwards
ceded to the conqueror, or fome other territory
ceded in Heu of it.
Mr. Morris. The cafe is precifely the fame.
Until after the peace, the conqueft is not complete.
Every body knows, that until the celTion by treaty,
the original owner has the poflliminary right to a
territory taken from him. Beyond all queftion,
where Congrefs arc compelled to cede the territory,
the judges can no longer exift, unlefs the new fove-
J-eign confer the office. Over fuch a territory, the
authority of the conftitution ceafes, and of courfe
the rights which it confers.
It is faid, the judicial inftitution is intended for
the benefit of the people, and not of the judge ;
and it is complained of, that in fpeaking of the office,
we fay, it is his office. Undoubtedly the inftitu-
tion is for the benefit of the people.^ But the quef-
tion remains, how will it be rendered mod benefi-
cial ? Is it by making the judge independent, by
making it bis office ; or is it by placing him in a
ftate of abjeft dependence, fo that the office Ihall
be liis to-day, and belong to another to-morrow ?
Let the gentlemen hear the words of the cenftitu-
tion : it fpeaks of MWr offices, confequently, as ap-
plied to a fingle judge, of his office, to be excrcifed
137
by him, for the benefit of the people of America,
to which exercife, his independence is as neceiTary as
his office.
, The gentleman from Virginia has, on this occa-
fion, likened the judge to a bridge, and to various
other objects ; but I hope for his pardon, if, while
I admire the lofty flights of his eloquence, I abflaiii
from noticing obfervations, which, I conceive, to be
utterly irrevelant.
The fame honourable member has not only given
as his hiflory of the fupreme court, but has told us
of the manner in which they do- bufinefs, and ex-
prelTed his fears, that having little elfe to do, they
will do mifchief. We are not competent, fir, to ex-
amine, nor ought we to prejudge, their conduft.
I am pcrfuaded that they will do their duty, and
prefurae they will have the decency to believe that
we do our duty. In fo far as they may be bulled with
the great mifchief of checking the legiflative or ex-
ecutive departments, -in any wanton invafion of our
rights, I fliall rejoice in that mifchief. I hope, in-
deed, they will not be fo bulled, becaufe I hope we
fliall give them no caufe. But I alfo hope, they
will keep an eagle eye upon us, left we fhould. It was
partly for this purpofe they were eftablllhed, and , /
truji, that when properly c&Ued on, they will dare to
ad, I know this doftrine is unpleafant. I know it is
more popular to appeal to public opinion, that equi-
vocal tranllcnt being, which exifts no where, and >
every where. But if ever the occafion calls for it.
133
I truft, that the fuprcmc court will not negleft do--
ing the great mifchief of faving this conftitution
which can be done much better by their delibera-
tions, than by reforting to what arc called revolu-
tionary meafures.
The honourable member from North-Carolina,
fore prefl: by the delicate fituation in which he is
placed, thinks he has difcovered a new argument m
favour of the vote which he is inftrufted to give.
As far as I can enter into his ideas, and trace their
progrefs, he feems to have afTumed the pofitionr
which was to be proved, and then fcarched through
theconftitutlon, not to difcover whether the legifla-
turc have the right contended for, but whether, ad-
mitting them to poffefs it, there may not be fome-
thing which might not comport with that idea. I
ihali ftate the honourable member^s argument, as I
underftand it, and ifmiftaken, pray to be correfted.
He read to us that claufe which relates to im-
peachment, and comparing it with that which fixes
the tenure of judicial office, has obferved, that this
claufe mufl relate, folely, to a removal by the execu-
tive power, whofc right to remove, though not in-
deed any where mentioned in the conftitution, has
been admitted in a practice founded on legiflativa
conftrufticMi.
That as the tenure of the office is during good
behaviour, and as the claufe refpefting impeachment
does not fpecify niis behaviour, there is evidently a.
caufe of removal which cannot be reached by im-
139
peaclimcnt, and of courfe (the executive not being
permitted to remove} the right mud neceflarily de-
volve on the legiilature. Is this the honourable
member's argument ? If it be, the reply is very
fimple. Afisbelmviour IS not -A term known in our
law. The idea is exprelTed by the word ?nisdemca-
nor ; which word is in the claufe quoted refpefting
impeachments. Taking therefore, the two toge-
ther, and fpeaking plain old Englifli, the conftitu*
tion fays t " The judges fliall hold their offices fa
long as they fliall demean themfelves 'well^ but if they
iliall mis demean^ if they fliall, on impeachment, be
convifted of misdemeanor^ they fliall be removed.
Thus, fir, the honourable member will find that
the one claufe, is juft as broad as the other. He will
fee, therefore, that the legiflature can aflTume no
right from the deficiency of either, and will find
that the claufe which he relied on goes, if rightly
underftood, to the confirmation of our doftrine.
Is there a member of this houfe, who can lay
his hand on his heart, and iay, that confiftently
with the plain words of our conftitution we have a
right to repeal this law ? I believe not. And if
we undertake to conftrue this conitltution to our
purpofes, and fay, that public opinion is to be our
judge, there is an end to all conflitutions. To
what will not this dangerous doftrine lead ? Should
it to-day be the popular wifli to .defi:roy the firft
magiftrate, you can deftroy liim. And fliould he
to-morrow be able \.o conciliate to him the popular'
T
140
will, and lead the people to wifli for your deftruc-
lion, it is cafily efFe^ed. Adopt this principle, and
the whim of the moment will not only be the law,
but the conftitution of our country.
The gentleman from Virginia has mentioned a
great nation brought to the feet of one of her fer-
vants. But why is fliein that fituation ? Is it not
becaufe popular opinion was called on to decide
every thing, until thofe who wore bayonets decid-
ed for all the reft. Our fituation is peculiar. At
prefemt our national compaft can prevent a ftate
from ading hoftilely towards the general intereft.
But let this compaft be deftroyed, and each ftate
becomes inftantaneoufly vefted with abfolute fove-
reignty. Is there no inftauce, of a funilar fituation,
to be found in hiftory ? Look at the ftates of
Greece. They were once in a condition not un-
like to that in which we fliould then ftand. They
treated the recommendations of their Amphiftionic
Council (which was more a meeting of ambaifadors
than a Icgiflative aflembly) as we did the refolutions
of the old Congrefs. Are we wife ? So were
they. Are we valiant ? They alfo were brave.
Have we one common language, and are we united
under one head ? In this alfo there is a ftrong re-
femblance. But, by their divifions, they became at
firft viftims of the ambition of Philip, and were at
length fwallowed up in the Roman empire. Arc
we to form an exception to the general principles of
human nature, and to all the examples of hiftory f
141
And are the maxims of experience to become falfe,
when applied to our fate ?
Some, indeed, flatter themfelves, that our defti-
ny will be like that of Rome. Such indeed it
might be, if we had the fame wife, but vile, arifto-
cracy, under whofe guidance they became the maf-
ters of the world. But we have not tliat ftrong
ariftocratic arm, which can feize a wretched citizen
fcourged alraofl to death by a remorfelefs creditor,
turn him into the ranks, and bid him, as a foldier,
bear our eagle in triumph round the globe. 1 hope
to God we Ihall never have fuch an abominable in-
ftitution. But what, I afk, will be the fituation of
thefe ftates (organized as they now are) if, by the
diifolution of our national compaft, they be left to
themfelves ? What is the probable refult ? We
fhall either be the victims of foreign intrigue, and,
fplit into factions, fall under the domination of a
foreign power ; or elfe, after the mifery and tor-
ment of civil war, become the fubjeds of an ufurp-
ing military defpot. What but this compaft !
What but this fpecific part of it, can fave us from
ruin ? The judicial power ; that fortrefs of the
conflitution, is now to be overturned. Yes, with
honed Ajax, I would not only throw a ihield before
it, I would build around it a wall of brafs. But I
am too weak to defend the rampart againfl: the hoft
of affailants. I mufl call to my afliitance their good
fcnfe, their patriotifm, and their virtue. Do not,
gentlemen, fuffer the rage of paffion to drive reafon
l4Si
from her Icat. If this law be indeed bad, let us
join to remedy the defcfts. Has it been pafled in a
manner which wounded your pride, or roufed your
refentment ? Have, I conjure you, the magnani-
mity to pardon that ofTence. I intreat, I implore
you, to facrifice thofe angry paiTions, to the interclts
of our country. Pour out this pride of opinion on
the altar of patriotifm. Let it be an expiatory
libation for the weal of America. Do not, for
God's fake, do not fuffcr that pride to plunge us all
into the abyfs of ruin. Indeed, indeed, it will be
but of little, very little avail, whether one opinion
or the other be right or wrong it will heal no
wounds, it will pay no debts, it will rebuild no ra-
vaged towns. Do not rely on that popular will,
ivhich has brought us frail beings into political ex-
illence ? That opinion is but a changeable thing.
It will foon change. This very mcafurc will change
it. You will be deceived. Do not, 1 bcfcecU you,
in reliance on a foundation fo frail, commit the dig-
nity, the harmony, the exiftence of our nation, to
the wild win4 Trull not your treafure to the
waves. Throw not your compafs and your charts
into the ocean. Do not believe that iis billows
will waft you into port. Indeed, indeed, you will
be deceived. Call not away this, only anchor of
our fafcty. I have fecn its progrefs. I know the
difficulties through which it was obtained. I Hand
in the prefence of Almighty God, and of the world.
I declare to you, that if you lofc this charter, never,
143
no never ! will you get another. Wc are now,
perhaps arrived at the parting point. Here, even
here^ we Hand on the brink of fate. Paufe, then *\
Paufe For heaven's fake Paufe. ';;\
Mr. Breckenridge. It is high time, Mr. Prc-
fident, that the attention of the committee (hould be
again called to the red merits of the queftion under
dilbufTion. We have wandered long enough, withr
the gentlemen in the oppolition, in thofe regions of
fancy, and of terror, to which they have led us.
They mull indulge us in returning and purfuing our
objeft. '
I cannot, however, in juftice to my feelings go
into the difcuffion, without making fome remarks
on the manner with which the attempts of thofe
who are in favour of this repeal have been treate<^.
It has been echoed, and re-echoed at every feDJi-}
tence, that we are attacking a law, matured by
wifdom, and upon which the rights, and fccurity of
the nation depend. That we are about to demolilli
the principal pillar in the fabric of our conflitution,
and thereby dilTolve the Union : and we are polite-
ly reminded by the gentleman from Connecticut,
that the Roman government, alio once the favourite
fabric of the world, funk under the rude Aroke of
Gothic hands. Without inquiring what has entitled
thefe honourable gentlemen, to affume to them-
felves the exclulive guardianlhip of the conflitution ;
and without inquiring what their attachment to it
is_j I^do pretendj '\:iX^ and that \vithout paying to ray-
144
fcif any compliment, that great as theirs may. be,
nine is not lefs. Gentlemen may, therefore, for
the future, fave themfelves the trouble of attempting
to aroufe my fears on this fubjcft, when I once for
all alTure them, that my duty as a citizen, and my
oath as a Senator, are more operative with me, than
the warning voice of any man, or fet of men, from
what quarter foever it may come, and however
high the pretenfions to experience and patriotifra
are, which they may choofe to affume. But notwith-
ftanding my anxiety to preferve, inviolate this confti-
tution, I am not to be diverted from my objeV, by
every tocfin of alarm, which gentlemen may think
fit to found. Let me not be told of dangers to the
conftitution, and of dangers to the Union. Contemp*
tible, indeed, is the balls on which that conftitu-
tion refts, poor is the compliment to the good fenfc
and patriotifm of the people of America, if that con-
Hitution, and their liberties can, as has been con-
tended, be fliaken to the centre, by the repeal of a
fingle law, of but a fmgle year's duration ; fufpicious
indeed in its origin, burdenfomc and ufclcfs to the
community, and aifcling fimply a few individuals,
interefted againlt that repeal, by paltry pecuniary
confiderations only.
I (hall commence the remarks, I am about to
make, by afking a fmgle queftion, which applies to
all the obfcrvations of the gentlemen in the oppofi-
tion. Has any gentleman fliewed, or attempted to
flicw, that the irtcreafe of courts and judges, by this
145
law, was neceflary, or juftifiable, from the ftate of
things at the time it was pafl'cd ? They have, I ad-
mit, attempted to fhew, by reafoning at a great dif-
tance, that they may be wanting hereafter, that our
empire is large, that it is populating fail, and that
infurreftions might happen. Indeed, the gentlemen
in the oppolition have taken different, and incon-
fiftent ground. The honourable gentleman from
New-Hampftiire, venerable from his years, and re-
fpeftable from his talents, tells us this law was not
the offspring of a night, but has been well matured.
The gentleman from Vermont, requefts, that we
may not proftrate meafures from pique. The gen-
tleman from Maffachufetts takes different ground,
and denies the power of Congrefs to repeal the law :
and the gentleman from Connecticut fays, that the
original law, eftabliihing the judiciary, was but an
experitnent ; and that experience is the only fure
tefl: of all human contrivances.
Now for the confi/lency of gentlemen. Some
contend that the law was well matured, and ought
not to be difpenfed with. Others, th;it we cannot
repeal it at all, whethel- matured or not well ma-
tured ; and others, that it is a part of a fyftem of
experiment. ]f, fir, the firft law was an experi-
ment, this law is of courfe an experiment upon an
experiment. Now for the reafoning of the gentle-
man from Connelicut. " Experience is the only
fure tefl: of all regulations ;'* therefore, you m.ay
make an experiment, and even an experiment upon
146
an experiment, but yet tliefe experiments are unal-
terable. This is really an original notion about ex-
periments J that you may try them, to fee if they
will anfwer, but whether they do, or do not, they
are faftened on you.
The honourable gentleman from Georgia, could
not after two explanations atone to the gentleman from
Connefticut, for an inadvertent expreflion dropt by
him in the warmth of argument, which carried an
infinuation, that this law was made in -jipajjion. Let
the gentleman from Connefticut, therefore, have
it as he dated it, that the law paffed with great cool-
ness and deliberation. If gentlemen then fuppofed
it was to be an irrepealable experiment, and to be
entailed on their country, / 'uj ill say it was a wanton
experiment. I will fay more : It was an experi-
ment, which inftead of being juflified by a fliadow
of ncceffity, was negatived by the exilling Hate of
things, at the time it was made ; and that it was
an experiment never made upon earth before, to
try how courts and judges would anfwer without
bufmefs. The abfurdity moreover, with refpe^ to
this ftrangc doctrine of irrepealable experiments, is
increafcd, becaufe fome gentlemen admit, that you
may modify and change the law, but fo as not to
afFeft the judges. I underftand them then on that
point to mean, that you may modify and change the
law as you pleafc, providc^d you increafe the num-
ber of judges, or the expenfc of the fyftera ; but
that you violate the conflitution, if you diminifli the
147
number of judges, or attempt to economize the fyf-
tem : or in other words, it is conftitutional to abo-
Yiih any part, or all of the fyftem but what relates
to the falary part of it : which in plain Englifh,
would be " do what you pleafe, gentlemen, with
our fyftem ; but spare, oh spare, those for whom the
system was made, the Judges,**
The gentleman from Maffachufetts afks for any
inftance of an attempt fimilar to the one under con-
fideration. If he meant of an example of the aboli-
tion of courts and judges, which had become un-
necelTary, I refer him to the examples of Maryland
and Virginia, already cited ; States compofedofone
million two hundred thoufand inhabitants, andcom-
pofing more than one-fifth part of the Union, who
have each exercifed that power. An inflance, ex-
aftly, or very nearly fimilar to the one under confi-
deration, cannot, I fuppofe, be adduced ; for I
would allc him in my turn, if he can fliew m.e in the
Union, or the univerfe, an inftance of afet of courts
created without any bufmefs for them to aft on ;
and beneficial to the judges only ?
The gentleman from Mafl'achufetts has conce-
ded a point, which is at variance with the principal
ground he has taken. He admits, if a judge in a
particular dilfrift: be incompetent from iufanity, dif-
ability, or other fuiEcient caufe to perform his du-
ties, Congrefs might repeal fo much of the law as
relates to his diflrift, and thereby put down that
judge. How is this? If a law can be repealed,
U
148
and a judge put down, becaufe he is unable to dif-
charge the duties of his office, cannot a law be re-
pealed, and a judge be put down, where he has no
duties to difcharge. If, becaufe a judge who can-
not difcharge the duties aftually affigned him, (al-
though by the act of government) may be difpenfed
with, is it found reafoning to fay, that you cannot
difpenfe with a judge, although you have abolifhed
his duties ? Again, purfuing the gentleman's own
cafe, \? part of a law can be repealed, and a parti-
cular diftril and judge put down, what is it that
arrefls your power, as to all the diflrifis, and the
whole corps of judges ?
[Here Mr. Jonathan Mason rofe to explain ;
and faid the gentleman had mifunderflood him.
The idea he intended to convey was, that if Con-
grefs had power to put down one judge, or one dif-
trift, they had the power to put down all the courts
and judges, but that they had no power to do ei-
ther.]
Mr. Brec KEN RIDGE faid, he wasforryhe had
mifunderflood the gentleman j he had fo noted his
obfervation j but he would then beg leave to notice
an obfervation of the gentleman from New -York ;
which applies to this part of the fubjeft. That gentle-
man has admitted, that you may new model your
courts for the benefit of the people ; but you cannot af-
fetl the judges ; for they arei (to ufc his expreflionj
under the conftitution ; and he contends, that not
149
only the firfl: fee. of the 3d art. is i?nperative, *but
alfo the the 8th fee. of the firfl article, which gives
Congrefs the " power to conflitute tribunals inferior
to the fupreme court.'* This lafl feftion gives to
Congrefs the power alfo to pafs bankrupt laws, na-
turalization Jaws, tax laws, &c. &c. Are all thefe
powers imperative alfo ? And after you have eftab-
lifhed a pofl road, pafTed a bankrupt law, or a tax
law, are they all irrepealable, and are all the ofE-
cers created by them all, in alfo under the conllitu-
tion ? The fame conflru^ion applies to all ; and
fhews them all to be discretional powers. But this
modification is to be for the benefit of the people.
Can it be for the benefit of the people, never to abo-
lifh courts ? Two inflances have been alread y cited.
And what principle is it, which ought folely to ac-
tuate legiflators, in enaiffing, modifying, or repeal-
ing any law, but the good of the people ? Gentle-
men really argue, as if they confidered courts made
for thejudges, and not for the people.
Suppofe this fubjeft could be difcuffed by the
people and the judges, whatw^ouldbe the language
of each. The people would fay, thefe additional
courts are totally ufelefs. The judges would reply,
(if they hold the fame opinions, that the gentlemen
* It will be observed, that Mr. BreckeniiJge Kust have mis-
taken entirely what was said by Mr. ^.!.orri3, for this gentleman
had not noticed the Sth sedion of the ist article, either in his
speech of the Sth, to which this is an answer, or in that made this
day, of wh.ich Mr. Breckenridge takes no notice. The reason
for making the mistake is obvious.
150
in the oppofiiion do) that they are not ufclefs, for
they tend to infpire terror, and keep men honefl :
The people allege there is no bufinefs for them to
tranfaft : 'J'he judges anfwer, that the country is
incrcafing fafl in population, and there iff// ^f bufi-
nefs, perhaps, bye and bye : The people contend
they ought not to incur an expenfe, without fome
advantage : Their honours reply, it amounts to but
one cent a man, and is not worth growling about :
The people horwever declare their determination to
aboiilh thefe courts, as things for which they have
no ufe : The judges then reply, in the language of
the gentleman from New-York, " You are a den
of robbers^ your conftitution is gone, and all men
will fly your ihores.'*
The gentleman from Maflfachufetts admits, the
Prefident has power to remove, at pleafure, all offi-
cers appointed by him, but the judges j but does not
fee the force of my application of it. I apply it in
this way : Although thofc officers have a right to
hold their offices at the will of the Prefident, and
the Icgiflature cannot remove them during the conti-
nuance of their offices, yet the legiflature can re-
move without the will of the Prefident, by abolish-
ing their offices. In cafe, for example, the excifc
law is repealed, what will become of the {w-
pcrvifors, and other officers created by that law ?
They will go out with the law j for an extinguifli-
ment of their duties will neccffiirily carry with it an
cxtincflion of their offices, whether the Prefident
wills it or not.
151
But a judge ftands on more independent ground.
He lliall not be removed at the will of the Prefident,
nor be ftarved out by the legiflature. He fhall be
"removed from the exercife of his duties, for mifbe-
haviour only, whilst exercising thofe duties : and
during the continuance of his office, or, in other
words, his duties, the legiflature fhall not diminifh
the confideration annexed to thofe duties. His in-
dependence and honefty in office, therefore, arc
fufficiently fecured againft executive or legiflative
Influence. ,
But the gentleman from New- York has racked
his very fertile imagination to render familiar to
us by comparifons this wonderful and unprece-
dented thing ; an officer without an office, a judge
without a court, without duties, or without autho-
rity. He has likened him to a bridge, to a boat,
to the national debt, and to an eight per cent,
ufurer. I will fnare your gravity, and that of the
committee, by refraining to examine the limilitude
as to the firfl: two objefls. What likenefs is there
between the falary of a judge, and the national
debt ? The national debt is a 'oested right -^ a
jright not accruing for fervices which may be render-
ed, but for fervices, or money, actually rendered or
advanced. It is a debt, the confideration for which
we have acknowledged to have received, and for
the difcharge of which we have pledged ourfelves.
It is a debt we are undet moral obligations to pay,
having previoufly received from the creditors, its
152
equivalent. How ftands the cafe of the falary,
which is faid to be appofite ? Is that a vefted right ?
Is that a debt for which the community have re-
ceived an equivalent ? It is neither. It is a debt
which, from its nature, the public faith cannot
{land pledged to pay, except fo far only as the fer-
vices actually performed, require j it being depen-
dent in its very creation on fervices to be performed,
and which may be difpenfed with when they arc
no longer wanted.
Is the cafe of the eight per cent, ufurer more
tppofite ? If the occafions of men induce them to
refort to the hoards of ufurers, it is a voluntary al ;
they know its intent and confequences, and they
ought, in juftice, to be bound by their contract.
Although Shylock may not be entitled to his pound
of flefli, yet he is entitled to his ufury and intereft.
And the cafe of the petty ufurer ftands on the fame
ground, with all thofe important ufurers, who
loaned, at eight per cent, their money and flock to
the United States, during her late preparations to
fight the French.
* The gentleman from New- York exprefTes his
utter afloniflimcnt at the idea of judges and courts
being too numerous ; and refers us to the example
of Alfred, whofe courts and judges were fo nume-
rous and well organized, and had impofed fuch
terror into his kingdom, that a purfe of gold might
lay in fafety on the high-w^iy. I remember reading,
long fincc, of thefe hundred courts, courts leet,
153
courts baron, &c. and, if 1 am not miftaken, fir, he
had a court oi chivalry too, of much about the fame
value and advantage in his kingdom as your addi-
tional courts are here. But, if the gentleman me-
ditates fuch extenfion and perfection in our judicial
fyftem, why not refort to the fountain head, and
take example from Moses, who is certainly higher-
authority. He, fir, eftabliflied his rulers, or judges,
of thoufands, of hundreds, of fifties, and of tens ;
and men too, fays the book, hating co'oetotisness ;
that is, I prefume, having no faiaries. But I take
it, that both Alfred and Mofes, had a wider range
in legiflation than this Senate, and therefore, their
regulations cannot be very applicable.
The gentlemen, both from New -York and Con-
nefticut, have preffed upon us the policy of increas-
ing courts and judges, to prevent crimes and wrongs,
to protect the weak againft the ftrong, and infure
virtue and hamanity among the people. I deny
both the propofition and inference drawn fi-om it, in
the extent contended for. From whence. I a/k, do
gentlemen draw their authority for fuch extenfivc
legiflation ? From whence arifes their power to
pafs thefe laws, to prevent crimes, to prote(5l the
weak againft the ftrong, and to punifli the guilty ?
Not from the conftitution, I will fafely affirm ; for,
under it, but three or four fpecies of crimes are
punifliable by federal laws : to wit, treafon, pira-
cies, and felonies on the high feas, offences againft
the laws of nations, and counterfeiters of the fecuri-
154
ties or coin of the United States. Thefe conftitutc
their powers 0:1 the fubject of criminal jurifpru-
dence, and are the fuin total of our powers, wricten
or unwritten ; unlefs, indeed, the gentlemen draw
fome of their authority for their extenfive notions
of legiflation, from the lex non icripta of Alfred's
country, which, I am told, fome gentlemen confider
as attaching itfelf to our conftitution. But, admit-
ting the propofition to be true, is the conclufion
drawn from it well founded, that a multiplicity of
courts and judges infpire terror, and prevent litiga-
tion and the commiifion of wrongs. I coufefs I am
now, for the firft time, to learn, that to infpire
terror, and prevent wrongs, you ought to embody
an army of jodges ; and that to fupport or difcou-
rage litigation, you ought to embody another fet
of men, their general attendants, called lawyers,
who, it feems, for the firfl time, are to become
peace-makers ; who, with their robes and greea
bags, will flrike fuch terror into the nation, that a
purfe of gold may hang, in fafety, by the high-way.
Halcyon days thcfe, indeed, which are promifed
from a continuance of thefe judges ; and if not
vifionary, I could then anfwer the gentleman from
MalTachufetts, in the affirmative, that the millenium
was indeed approaching.
The ucccffity for numerous courts and judges is
alfo infilled on, by fuggeftions that foreign inva-
iions may happen, and that infurreftions may alfo
happen j that confequenlly great revenues will be
155
wanting, and confequcntly numerous courts to en-
force their colleftion. This is reafoning at a very
great diftance indeed from the fubje!, to prove its
utility. But I am willing to indulge the gentlemen
and admit, that invalion will happen, and annually,
if he chufes, and infurreftions quarterly ; I will
then contend, that until the population of America
amounts to five times the prefent number, we {hall
not ftand in need of as many judges as there now
are, to adminiiler juftice on all the fubjels, which
can rightfully, under the prefent conftitution, be
carried to federal adjudication.
The gentleman from New- York has favoured
us with another argument on this head, not adreff-
ed to the fears, but to the pride of the people, and
aflcs if the paltry additional expenfe ought to have
any weight, when it cannot amount to more than
one cent a man. I anfwer, fir, that one cent a man
will not, to be fure, opprefs the people ; but this is
a very unfair way of appealing to the ability of
the people, by fliewing them among the thoufand
items which compofe the aggregate of their bur-
dens, what each man's proportion is of one very
fraall item. But as that honourable gentleman has
told us, " that he confiders the government reding
on the reafon of man, as a folecifm,'* I fhould fup-
pofe, with due deference to him, that the better
way would be, to govern this machine man, to in-
creafe the army, rather than the judiciary. Twenty
thoufand regulars, properly difpofed of, would make
X
156
us as honcft as Alfred's fubjefts, and would cod ns
only three or four dollars a head. This, too, is a
kind of terror familiar in countries like Alfred's :
but an army of judges is a new experiment, as we
have been told this law is ; and was referved for
the politicians of thefe our enlightened times.
Much has been faid about the hardfhip which
will arife to judges, who have quitted lucrative em-
ployments, and taken feats on the bench, confidcr-
ing them as permanent provifions. One gentleman
defcribes them as a venerable fet of men, bending
under the weight of years, and not pofTeffing the
agility of pofl-boys ; another, as men who have
been induced to abandon the aftive and lucrative
purfuits of the law. Take them as pourtrayed by
cither gentleman. If they are men of the firft de-
fcription, there can be little hardfliip in permitting
them to return to that ftate of tranquillity and re-
tirement from which they mud have been no doubt
reluftantly drawn ; and to which their age and in-
firmities rauft: again invite their return. If they arc
men of the lafl defcription, can they not readily re-
turn to thofe fame aftive and lucrative purfuits
which they had quitted ? Have their talents and
faculties, for the purfuits of which they were bred,
been palfied, by a feat for a fmgle year on the
bench ? And can that fmgle year's derangement
of their affairs be retributed only by a penfion of
two thoufand dollars a year for life ? Such calcula-
tions and demands mull illy comport with the cha-
157
rafter of thofe of the firfl: defcription ; and they are
poor compliments, indeed, to the talents, legal. ac-
quirements, and legal {landing of the fecond. But
is there no hardftiip on the fide of the community ?
Is it enough for them to be told by thefe judges,
true it is you have eftablillied an ufelefs fet of
courts ; but we have been lucky enough to get into
office, the conititution protefls us there, and get us
out if you can ? I doubt, fir, this reafoning would
not be fatisfaftory to men polTeffing common ho-
nefty, and the ordinary notions of right and wrong.
It would not, however, be taken as a fatisfaftory fet
off againft the fifty thoufand dollars annually.
The gentleman from New- York has contended
Urongly againft an idea, which, he apprehends is
entertained of increafing the power and influence
of the ftates, by leflening your federal courts.
I hold out no fuch idea. It was a furmife of
the gentleman. I wifli the federal government to
poflefs and exercife all its rightful powers, but no
more. I wifli the ftates alfo, to be left in the exer-
cife of theirs. I do not wifti to fee every thing va-
luable extrafted from them. I do not wifh to fee all
pofiible fubje^ts drawn into the great vortex of fe-
deral legiflation and adjudication, I do not, in fliort,
wifti, as fome gentlemen may do, to see one mighty
consolidated sovereignty colleded frovfi and erected on
the ruins of all the state sovereignties.
It is now growing late, and the committee muft
be fatigued j I will trefpafs very little longer on them.
158
Many of the'obfervatlons, which I have anfwered,
were, ic is true, very foreign and irrelevent to the
fubjcft. They were, it is true, but the gleanings,
as the gentlemen who have preceded me left little
for me to anfwcr.
But permit me, for a fingle moment, to draw
gentlemen's attention to the real merits of this quef-
tion, and afk, have the arguments been fairly and
fatista6i:orily anfwered by the gentlemen in the op-
pofition ; arguments which went to the many dififi-
culties and abfurdities which would grow out of the
conilitution, under the conftruftion againft which I
contended ; which went to fhew, that the conflitu-
tion could only be fairly and rationally conflrued to
fecure the independency of a judge in office, dur-
ing the continuance of that office ; which went to
fhew, that the power of Congrefs, to ereft inferior
courts, was difcretional, and was, therefore^ neccf-
farily accompanied by the power to aboli(h them j
that by the confl:ru<^ion contended for, finecure of-
fices for life would be erefted under the conflitu-
tution ; that the abfurdity of an officer without an
office, would exifl: ; that the power of legiflation on
judicial fubjels would, in effi;;6t, be arrefted, in-
deed deftroyed ; and that it would produce the ex-
traordinary phenomenon in our government of an
officer not amenable to your laws, to your conftitu-
tion, or to the people themfelves ? I appeal to gen-
tlemen, if thefe have been fairly and fatisfaftorily
anfwered ? They have not.
X59
After Mr. Breckenridge concluded, the
houfe adjourned to the next day, Friday the fif-
teenth. The Vice-Prefident of the United States
attending, Mr. Baldwin who had been Prelident
pro tempore, opened the debate. He obferved
that in the feat with which he had been honoured
by the Senate during the preceding part of this de-
bate, his duty had obliged him to pay particular
attention to gentlemen who rofe to offer their opi-
nions : he had felt himfelf pleafed and inllru(fted
by one of the mod luminous difcufHons, in both
views of the queflion, that he had ever witnelfed,
which he hoped and trufted would guide the Senate
to a ufeful and proper refult. In this late ftage of
the debates it could not be expecled of him to be
able to contribute any thing new or important.
But, as gentlemen had fo generally thought proper
to exprefs their opinions, he would not withhold a
public declaration of his own.
He thought the range of this queflion, and the
field of argument had been made more extenfive
than ftridly related to the queflion ; but they
might be ufeful, in leading to a final determination
on the fubjeft of the refolution now under coiifider-
ation. The remarks that had been made of impro-
per motives and defigns, on the one fide and on
the other, either that there was an intention to
urge forward the powers of the government, till it
was carried altogether beyond its principles, or that
there was an inveterate fyftera of oppofition to it.
166
which fought nothing lefs than its overthrow, he
fhould take no notice of, as they had already been
extended farther than he had wiflicd. His refpeft
for worthy gentlemen, with the greater part of
whom he had fo long laboured in our public coun-
cils; his refpeftfor the people whom they reprefcn-
ted, and for the State Legiflatures who had on this
occafion preferred them to their fellow-citizens, it is
to be prefumed, from full experience of their talents
and virtues, forbade him to entertain any doubt of
their delire to promote the bed interefls of their
country, and to preferve our excellent conflitution,
which they are all fworn to fupport. If at any
time obfervatious different from thefe cfcaped
him, he hoped they would be conlidered as the fug-
geftions of his own infirmity, and not the refult of
deliberate reflexion. His own general opinion on
fuch fubjefts was, that it is the nature of all delega-
ted power to increafc : it has been very aptly faid,
to be like the fcrew in mechanics ; it holds all it
gains, and every turn gains a little more j the power
keeps conflantly accumulating, till it becomes abfo-
lutely infupportable, and then falls in ruins in a
tremendous crafli, and the accumulation begins
again ; fo that the hiftory of civil fociety is but a
general view of thefe vaft waves following each
other oftentimes in dreadful fucceffion. That this
was the tendency of fociety, he thought appeared in
fome meafure from our own fliort hiflory, whether
viewed in relation to our flate or federal govern*.
161
mcrit^ ; fcvcral of them had already made confider-
able adv-ances^'m this courfe ; he knew of none of
them that had declined. Though he hoped and
trufted, that this fatal progreffion would be flower
in our country, than it had ever been before on the
face of the earth, and that it would allow to us ma-
ny ages of great political happinefs, yet he did not
expeft it would be found in the end to be an excep-
tion to his general remark. He alluded to feveral
inftances in the federal government, and obferved
generally, that as we were now in the thirteenth
year, under the prefent conftitution, as we had
been thirteen years under the old fyftem of the ar-
ticles of confederation, he thought it ufeful in our
reflexions to make a comparifon between them : du-
ring the firfl: period of thirteen years, the federal .
government, as it was called, poiTeflTed neither legifla-
tive, nor judicial power, nor any revenue at all ;.
they were not able even to form their own body, by
compelling the attendance of their members j they
attended or were abfent, as they pleafed. Their
ideas of the encroachments that it was neceflfary to
make on the powers that were then in the poflfeflioQ
of the ilate governments appeared to have been
very different from ours ; they carried on a long
andobfliinate war, andas they fuppofed, had nearly fi-
tiiflied a fettlement of their accounts ; and yet there
was much lefs complaint of a want of power, unea-
fmefs and ftruggles for more, at the clofe of that
rfl: period of thirteen years, than at the prefent
162
time. He fliould not enlarge on tliis view of the
fubjeft ; when he faw that he was fpeaking in the
alTembly of the mod ancient flatefmen of our coun-
try, he knew that though he barely glanced at the
ideas, their own recollections would prefent them in
all their extent. The obfcrvations that had been
before made by gentlemen on this view, had been
fo general, that he could only meet and qualify them
by other general obfervations : he thought they
did not furnifh a foundation to apprehend an over-
throw of the government.
The refolution now under confideration, pro-
pofes to reconfider and repeal the new judiciary law
paffed lad feffion ; it does not follow, that this is an
effort of a general plan of deflrudion, as applied to
our federal government : all public bodies mufl: at
fomc times renew their own proceedings ; while
the maxim remains true, that it is the lot of human
nature to err, this muft be the cafe ; parliamenta-
ry aflemblies have provifions for reconfidering their
queftions, and courts of juflice for granting new
trials.
The firfl: and mofl natural fource of argument
that prefents itfelf on fuch occafions is the circum-
ftances in which the aft took place ; to enquire
whether there was any furprize or unfaimefs, not
according to principle and cuftomary form. Gen-
tlemen have had the candour feveral times to ac-
knowledge, and it was very frefh in his own recof-
leftion, that this was the cafe on the paffage of the
163
law, which the motion propofes to repeal ; that it
was verily believed at the time, not to poflefs an
aftual majority of the votes of the other houfe, and
therefore, every propofed amendment was rejected
by its friends in the Senate, as they did not confider
it fafe to fend it back open to any queftion in the
Houfe of Reprefentatives. He inftanccd the propo-
fed amendment to ilrike out Bairdftown, the place
fixed by the law for the court in Kentucky, which
was acknowledged to be a proper amendment, and
afterwards introduced in. a fupplemental law ; he faid
he was himfelf now acting under an impreilion that
that law never did unite here in its favor an a6lual
majority of votes, according to the rules of the Se-
nate and of the conftitution. He then read the rule
of the Senate which forbids a fenator to vote on a
queftion where he is interefled, and aclaufe in fec-
tion-6, article I. of the conftitution, which prohibits
a fenator or reprefentative from making an office to
hold it himfelf: he referred alfo to the fettled prin-
ciple in the inveftigation of truth, that a perfon's
relation of a common matter of fadt in a queftion of
a few fhilliugs value, could not be relied on, if he
had even a remote intereft in the refalt of it. He
hoped his alTurances would be accepted, that he did
not make thefe remarks to excite any unpleafant
fenfations ; he wifhed to avoid them ; he touched
them as flightly as he could, giving them their
proper place in the ai-gument ; he was fenfible they
did Dot prove that law to be a bad one j but they
Y
164
formed the firfl:
to fit in three places, as it was when limited to one
flate and one place ; or will gentlemen tell us that
if the judges of the diftricl courts had rcfufed to a6t
as judges of the circuit courts, whether they would
have been dill judges of the difl:ri6l courts after
they had been aboliftied ? Or will they fay that
the comraifTion of a diflrift judge, limiting his jurif-
diftion to a flate, is the fame as that of a circuit
judge extending it over three flates ? And whe-
ther the law authorizing the commiffion over three
ftates ought not to precede the commiffion veiling
that authority.
Mr. Wright a/Iced, if Congrefs, when exer-
cifmg their authority in the firll indance, to eltablifli
inferior courts, had not the right to limit their con-
tinuance to any p.riod and that at the end of that
period, if the law was not continued, what would be
the fituation of the judge appointed under the law,
would his authority continue ? Certainly not.
And will any gentleman contend on this floor, that
if a former Congrefs had a right to give limitation
187
to the continuance of a law, that the prefent
Congrefs have not the fame authority to limit
or to difcontinue. Honourable gentlemen, how-
ever ingenious, will find themfclves, he prefumed,
unable to folve thefe difliculties, or to reconcile
thefe inconfiftencies ; for his part, the authority by
which this fubje^l had been brought before them,
the recommendation of the Prefident, had been
powerful. The letter and fpirit of the conltitution,
when recurred to, had edabliflied him in that opi-
nion, that they were juftified in the meafure now
propofed, and the pradilce of Congrefs in abolifliing
the di{lril courts of Tenneffee and Kentucky, fatis-
fied him, that it was no new idea, no new exercife
of power ; and further, that nothing in the form
of a conllitution, can be drawn fo guardedly, that
gentlemen may not be found to differ on its true
conflrudlion ; and even, as in the prefent cafe, at
different times and on different occafions, differ
themfclves in the conflru(5lion of the fame inflru-
ment. If all thefe confiderations were not fuflicient
to fatisfy gentlemen, and we were obliged to recur
to the principles on which this inflrument rauft
have been eftabliflied, we fliall find, that we do not
in any degree violate them by the conflrui^lion we
put on them. If the Britifli government is recur-
red to, from whence the flate governments borrow-
ed their principles, or if the flate conftitutions are
reforted to, we fhall find thoroughly incorporated
the principles for which we contend, that the judges
Rb
188
are independent only of the executive, but never
above the law giving them their political exiftcnce.
He admitted, with the gentleman from New- York,
that judges ought to be the guardians of the conlii-
tution, fo far asqueftions were conflitutionally fub-
mitted to them ; but he held the legiflative, execu-
tive, and judiciary, each feverally the guardians of
the conftitution, fo far as they were called on, in
their feveral department?, to aft ; and he had rot
fuppofed the judges were intended to decide quef-
tions not judicially fubmittcd to them, or to lead
the public mind in legiflative or executive queflions,
and he confefTcd, he had greater confidence in the
fccurity of his liberty in the trial by jury, which
had in all times been confidered as the palladium of
liberty, than in the decifion of judges, who had, at
fome time, been corrupt. For his part, he did not
wifh to break down thejudiciary or the judges, or
to violate the conftitution ; though he confeffed, he
fhould feel as fecure in the decifion of the ftate judg-
es, in even federal quqIHons, with an appeal to the
fupreme federal court, as in the prefent judges ; and
indeed the conftitution, in the 4th article, 2d feftion,
which impofes on all ftate judges the oath to obferve
the conftitution and laws of the United States, al-
ways feemed to him to confider the ftate courts in a
certain degree judges of federal queftions. Nor
had he ever been able to raife a doubt in his own
mind as to the propriety ot trufting ftate judges
to decide federal queftions, with an appeal to a
189
federal court ; when he confidered that ftatc juries
had always been trufted to decide all queflions,
from whofe decifion there was no appeal j and in-
deed the ftate courts, at all times, had been the only-
judicial guardians of our rights, whoje integrity had
never been impeached. The gentleman from New-
York is fo careful of the conflitution, that he wiflied
it fecured by walls of brafs. Does he apprehend
others wifli to violate it, and himfel/ its exclufive
guardian, and that other gentlemen do not hold
themfelves equally bound to protect it, or have no-
thing worth protefting ? For his part, he had fworn
to protect it, and never fhould, intentionally, violate
it ; but he believed that no human invention could
make it more fecure than it was, depofited in that
hallowed temple, and locked up by the key qf our
holy religion.
Mr. HiLLHousE, of Conne<^Icut, obfervcd,
that he oppofcd the paiTage of the law now propo-
fed to be repealed ; but for tlie purpofe of getting
rid of a law which he did not like, he could not
feel himfelf juftified in tearing out a leaf of the
conilitution. In attempting to correal an error of a
former legiflature, we fliould be careful not to com-
mit one, in its confequences, more fatal than the
firfl. He did not hefitate to declare it as his opi-
nion, that not only the law under confideration,
but every other that had been pafied on that fubjed;
might be repealed ; but he was furprifed to hear
it faid that this could be done in a way that fliould
190
deprive a iad?;e, duly appointed, of his office and
fahiry. The words of the conflitinion are dire<^
and pofitive, that " the judges, both of the fupremc
and inferior courts, fliall hold their offices during
good behaviour ; and fhall at dated times, receive
for their fervices a compenfation which (hall not be
diminifhed during their continuance in office.'*
The conflitution no where fays, that the judiciary
fyftem of the United States, when once formed,
cannot be altered, the courts new organized, old
ones put down, and new ones created ; that is left
to Icgiflative difcretion, under this rellriftion only,
that there (hall always be a fupreme court, and
that no judge (hall be deprived of his office or fala-
ry. To abolifli a court, without deftroying the
office or falary of the judge, has not in pradlice
been found difficult. Mod of the flates, where
judges hold their offices during good behaviour,
have been in the habit of doing it ; the United
States have done it ; but in no inflance has a judge
been deprived of his office or falary, unlcfs in that
Hated to have recently happened in Maryland ;
which, if the fats are rightly reported, ought not
to be respected^ much lefs imitated by this Senate.
By a law of Maryland, courts had been eflabliffied
and judges appointed, who by the conflitution hold
their offices during good behaviour. This law
was repealed, and during the fame feffion of the
Icgiflature, a new law was paffi:d eftabliffiing the
fame courts, and almoil in the fame words of the
191
former law. What could be the objcft of this re^
peal ? Surely none other than the turning the judg-
es out of office. Could that be lefs a violation of
their conftitution than the paffing of a law directly
removing from office the fame judges ? It is too ab-
furd to fay that indirect means may be ufed to ef-
feft what might not be done by a direft and pofitive
law, or is abfolutely forbidden by the conilitutioni
to be done at all.
Here Mr. Hillhouse dated the various laws
of Virginia, in which they new modelled or altered
their judiciary fyflem, by which, faid he, it appears,
that this antient and important ftate has ever been
careful not to violate the principle here contended
for, and had, in no inftance, deprived ajudge of
his office or falary.
To juflify fuch a conftruftion of theconllitutlon
as will warrant a repeal, it is fiiid, if a law may pafs
one feffion authorizing the appointment of iixteen
judges, who cannot be removed, it may be extended
to fixtcen thoufand arguing that, liecaufe the
power may be abufed, that, therefore, it does not
exiit. But will this argument do ? Let it be telled
by other parts of the conftitution, Congrefs are
not limited in their power to borrow money, or
raife armies, which, during the period of one Con-
grefs, might be ufed to the total and irretrievable
ruin of the nation. The treaty making power is
vefted in the Prefident and Senate, a power which
has been recently exercifed in ratifying the conven-
102
tion with France, by which is relinquifhed the
claims of citizens of the United States, for fpoliation,
to a great amount ; there is nothing in the condi-
tution that reflrains this power or the abufe of it ;
or that would have prevented the introduction of an
article into this fame convention, ftipulating the
payment to France of an annual tribate of twenty
or thirty millions of dollars, a fum abfolutely ruin-
nous to the ITnited States. The fame remarks
will apply to fundry other powers ; yet it will not
be faid, that becaufe thcfe powers are liable to this
alnifc, that, therefore, they do not exifl:. There
never was a conftitution, or form of government
which contemplated it as a polTible cafe, that the
legiflative power ftiould be lodged in the hands of
madmen, or which attempted to provide againfl
fuch an event. Should this be the unhappy fitua-
tion of any country, there would be no remedy but
a refort to revolutionary principles. From whom
is this abufe of power refpc6ling the judiciary ap-
prehended ? The legiflaturc ; the fame legiflature
in whofe hands we are told the rights and liberties
of the people are perfectly fafe.
In no part of the conflitution isthePrefidcntdireft-
ly verted with power to remove any one from office ;
on that fubjeft, it is filent ; the reftriftlon, therefore,
in relation to the judges, cannot refer to the Prefi-
dcnt ; it mud have been intended to fecurc them
againfl: every department of the government. Any
other conflruflion would render the reftri<5lion fu-
193
tile, and wholly deflroy the independence of the
judges, who would be hable to be removed from
office at every feflion of Congrefs. All that would
be necefTajy, would be a repeal of the law under
which they hold their appointments, which, if the
principle of chis nefolution is admiiTible, may be
done without any violation of the conflitution. It
will certainly carry us to that extent. It was, moil
certainly, the^ intention of the convention who fram-
ed the conflitution, to fecure the independen ce of
the judges ; it was thought, by every one, to have
been done in a mofl: effcdlual manner, until this new
difcovery, which is of very recent date, of reforting
to a repeal of the law. The independence of judges
is, certainly, very important to enfure a due admini-
ftration of juflice, which, in every well regulated
government, is confidered as a matter of primary im-
portance. Other departments of the government
may be more fplendid, but courts of juflice come
home to every man's habitation ; their importance
is felt by every individual, to them he looks for fe-
curity and the protection of his perfon and pro-
perty.
The conflitutions of dates are limited in their
operation, and may be eafiiy altered or amended ;
different, far different is that of the United States.
This is the bond of union between lixteen fovereign
independent flates, fpread over a country of vaft ex-
tent, influenced by different views and interefts ;
watching, with a jealous eye, the movements of the
194
general government ; and whom it has been found
difficult, and will grow more and more difficult, to
unite in any agreement to alter or amend this con-
llitution, and which, once deflroyed by any impor-
tant or flagrant violation, it is my firm belief, will
never be renewed.
The Senate then adjourned till Monday, when
the further confideration was poftponed till Tuef-
day the 19th. Mr. White, of Delaware, opened
the debate on that day.
I fhall be believed, fir, when I aflure you, that
nothing lliort of the highefl fenfe of duty, and the
great refponfibility of the feat I have the honour to
hold, could enable me to overcome the extreme em-
barraffinent I feel in rifing to prefent my fcntiments
to the Senate, on this the mofi: important queflion
ever before them. I prefume not to think, after
the fuperior eloquence and talents that have been
here difplayed, it will be in my power to cafl on
thefubjecl a fmgle additional ray of ligh'. Already,
fir, has it been exhaufted, and, were I to confult my
own feelings only, I fhould not now have to tref-
pafs upon your patience, whilH:, in the execution of
a facred duty, I pafs, haflily, over part of the fame
ground, that has before been irod by fome of my
honourable friends, making fuch additional remarks
^Hs might have efcaped them. In the courfe of my
obfervations I fliall confine myfelf to the fame divi-
'fion of the queflion purfued by the honourable
mover, and which it naturally prcfents.
105-
Ift. As to tlic expediency, adly. As to the
conflitutionality of the meafure propofed in the
refolution.
That fome fyflem of courts is neceffary in our
country for the execution of laws and the admini-
ftration of juftice, gentlemen mofl hoflile to the
prefent eflabliflimcnt will readily admit. It is ac-
knowledged too, on the other fide of the houfe, that
the expenfes of the prefent judiciary are unworthy
your confideration j that it is one of the leaft evils
attending it ; but, fay gentlemen, it is upon too
large a fcale, it is ufelefs, it is dangerous.
Sir, upon the original plan of the courts, it was
found impoflible that the fix prefiding judges, tra-
verling this extenfive country, and holding their
feilions in every ftate, could either dojuftice to the
bufinefs, or at their advanced periods of life, with-
flaud the fatigue of fuch fevcre and confiant exer-
cife, fome alteration, fome amendment of the fyftem
was found indifpenfable ; the interefl of the coun-
try demanded it of thofe in office, and it is for the
execution of this duty that their political memories
are now fo illiberally reviled. It is well known, fir,
that the United States are increafing in population,
commerce, and wealth, beyond any former example;
that new fubjefts of litigation are every day finding
their way into your courts, and fhort-fighted indeed
^ would have been the founders of the eflablifhment
now under confideration, had they confined their
views to the prefent time. Previous to the palTing
Cc
196
of this law, no man who could avoid it, would
commit his bufinefs to your courts, their arrange-
ment amounted almofl to a denial of juflice ; fuitors
preferred taking their chance in the (late courts to
the delay and expenfe attendant upon the proceed-
ings in thofe of the United States. The conftant
change of prefiding judges at every fucceeding
court, totally unacquainted with what had been
done by their predeceflbrs, and introducing new
rules of practice, together with the unavoidable
(hortnefs of the terms, hung up the bufmefs to the
great inconvenience and injury of many fuitors, and
mufl in a fliort time have rendered that fyftem not
only ufelefs, but even a nuifance to the country j
people could not be expelled to apply for juflice to
a bench where time was not given to adminlftcr it.
Thtfe fir, among many others, are fome of the
reafons why bufinefs had not been originated in
your courts antecedent to the prefent law. Thefe
are the reafons, fir, why their dockets are now fo
low ; and permit me to fay, that the extrafts
contained in this document, even fuppofing them
correal:, which happens to be far from the facV,
prove nothing ; they were taken at a time when the
prefent courts had fcarcely commenced their opera-
rations, immediately after the firfl circuit, when no
gentleman will undertake to fay, there had been
any thing like an opportunity at a fair experiment
of them. And now, fir, before the people of the
country have even become acquainted with the
197
fyflem, and before any man, unlefs by the power of
mfpiration, can judge of its utility, it is in a mo*
ment to be daflied to pieces. Why, I aflc, fir, this
precipitance ? Do gentlemen fear that if the mea-
fiire is delayed until another feflion the experiment
might render the fyftem popular ? And thefe hateful
judges, for there is the rub, fir ; thefe hateful
judges will not be fo fafely got rid of. I hope
gentlemen, at leaft for the prefent, will quiet their
fears ; they need not, I can alTure them, apprehend
any immediate danger from this mighty army of
judicial veterans, {o terrible in found ; they are
now, I believe, fir, in winter quarters ; and even if
continued in fervice another year, could not totally
ruin and enflave the country, or, as has been indeed
very feelingly expreifed by the honourable gentle-
man from Georgia on my right, (General Jack-
soNjj lay our virtuous citizens in irons. The
honourable gentleman from the fame flate, on my
left, (Mr. Baldwin,) has been pleafed to tell us,
that the fame juftice was not to be expefted from
the courts of the United States as from thofe of
the individual dates, becaufe the judges of the
former cannot have a fufficient knowledge of the
ufages and cuftoms of the country, and their jurors
not being of the vicinage, can know nothing of the
parties or their fuits. I admired much, fir, the in-
genuity and candour of that gentleman, but this was
certainly among the lead folid parts of his argu-
ment ; unhappily the very reafons he adduced
198
proved direftiy tlie oppofite of what he willied.
Judges, fir, fliould be governed only by the law oi
the land, they carry it with them ; they arc its,
cxpofitors, and are fworn to decide according to it,
and have notliing to do with the ufages and cufloms
of the neighbourhoods where they may happen to
fit. And I have always underflood, that the great--
eft poffible fecurity for the impartiality of jurors, is
their being entire ftrangers to the contending par-
ties, and totally ignorant of their caufes until em'
pannelled to decide them ; they then view nothing
but the naked fafis arifing out of competent tefli-
mony, and are influenced only by law and juftice.
And fuch, fir, is the frailty of our nature, that the
bed man in fociety may be ailing under the influ-
ence of politics, friendfliip, paflion, or prejudice,
when he fuppofes himfelf governed by the purefl
motives. Well aware though, as I am fir, that
nothing fliort of the conftitution itfelf, and I feai*
not even that will be fuiHcient to preferve the inde-
pendence of the judiciary, from this bold onfet, I
ihall now proceed to the fecond divifion of the quef-
tion.
I admit, fir, that the law propofed in the refolu-
tidn to be repealed, is capable of much amendment,
and it has never been denied, but that Congrefs
had the power of altering it in any way, fo as not to
impair the independence of the judiciary, by touch-
ing the offices or falaries of the judges ; this cannot
be done, the words of the conflituiion on the fub-
199"
ject, are as explicit and certain as language can be.
By the firft feftion of the 3d article, it is declared,
that " the judicial power of the United States,
(hall be, vefted in one fupreme court, and in fucH
inferior courts as the Congrefs may, from time to
time, ordain and eftablifh. The judges, both of the
fupreme and Inferior courts Ihall hold their offices
during good behaviour." Does our language ad-
mit of words more pofitive than thefe, fir ? Not a
letter nor even a comma is wanting to complete the
meaning we affign to them j and I a/lc gentlemen to
point out any other words that the fraraers of this
inftrument could have ufed, that would have been
lefs equivocal, or that <:ould import with more cer-
tainty the conflruftion we now contend for ; it has
not yet been done, and I defy them to do it ; and if
a different conftrudion can be given to thefe words
this written conflitution is not worth a fous ; it is to
all ufeful purpofes a mere chart-blanch upon which
a legiflative majority may write what they pleafe.
In a preceding part of this conflitution, power
is given to Congrefs, to conftitute tribunals inferior
to the fupreme court ; by the aft to which the re-
folution on your table refers, they did fo^ and in
purfuance of that aft, the Prelident of the United
States ifiued commiffions to certain gentlemen as
judges, they accepted of thofe commiffions, and at
the moment of their becoming judges, the conrtitu-
tion attached to their offices, and guaranteed to
them the fame independence and permanency as
200
judges of the fupreme court j for it makes no dif-
tin(5lion. " Judges both of the fupreme and inferi-
or courts fliall hold their offices during good beha-
viour '* On the acceptance of their commiflions, a
complete contraft was formed between them and
the government ; the conftitution told them, that
the tenure of their offices fliould be their own good
behaviour ; the law told them, that for their fervi-
ces they (hould receive a certain fura annually ;
thefe were the terms, fir, that tempted them to leave
their other purfuits in life and carry into execution
this contraft ; and it is a contraft that no power on
earth can diflblve, but by firfl altering this conftitu-
tion in the manner it direfts, or by violating it ;
and any law, attempting its diflblution, operates rc-
trofpeftively, is an ex pofl fafto law, and in that
refpel too, unconfiitutional.
Bur, fir, in order to place beyond a queflion, for
ever, the entire independence of the judiciary, the
convention went ftill further, and in this fame fec-
tion, nay, in this fame fentence, for they followed
the thing clofely up, they declared, that thefc
judges, viz. of the fupreme and inferior courts,
" ftiall at flated times, receive for their fcrvices, a
compenfation which fiiall not be diminifhed during
their continuance in office." And under the words
of this conftitution, we have juft the fame power to
diminifh their falarics whilft they continue in office,
as we have to remove them from their offices and
ftrip them of all falary j they hold their offices dur-
01
ing good behaviour, and the full amount of iheir
falarles whilfl: in office by the fame (trength and
power of language ; fol* can it be faid, fir, that the
words " (hall not** are more prohibitory, than the
word " (hall" is mandatory ? Certainly not. Thefe
latter words apply efpecially to C4ongrefs : they muft
have been introduced for the exprefs purpofe of fix-
ing and marking the bounds of legiflacive authority
towards the judici ry. And it wouM feem as if the
wife framers of this inflrument had feared, not, fir,
that Congrefs would ever prefume themfelves au-
thorifed abfolutely to remove any judges froni their
offices without caufe, as is contemplated in that re-
folutibn, for fuch an idea could never have entered
their minds, after they had the moment before ex-
prefsly declared, in fo many Words, that the judges
both of the Ripreme and inferior courts (hould hold
their offices during good behaviour, but that the
afpiring pride and ambition of legiflative power, in
fome unhappy moment of intemperance or party
warmth, might attempt to impair the independence
of the judiciary in another way, by affiiming a dif-
cretionary power over the falaries of the judges,
and thus rendering them dependent upon legiflative
pleafure for a precarious fupport, make them fervile
iand corrupt.
Gentlenicn acknowledge that the judges of the
fupremc court are out of their reach (thank heaven
"that they happen to think fo, or they too would ac-
company their brethren) but fay they, the judges of
202
the inferior courts are creatures of our own, and
we can do with them as we pleafe. Let me admit,
fir, for argument fake, the pofitive meaning of the
conflitution to the contrary notwithflanding, that
thefc words, " The judges, both of the fuprerae
and inferior courts fhall hold their offices during
good behaviour ;" are equivocal. What reafons
can gentlemen have to believe, upon what poffible
grounds can they prefume, that the makers of this
conflitution did not intend to place the judges of
the inferior courts upon the fame independent foot-
ing as thofe of the fuperior courts ; do they not
belong to the fame great department of your govern-
ment ; intended to be kept feparate and diflinft
from the other two great departments ? Is not
their independence equally important to the faithful
adminiftration of juflice ? Certainly, fir, and if pof-
fible more h ; for it is to them the people, in mofl
inftances, mufl: firfl apply for juflice, and a vafl pro-
portion of the molt important bufmefs that palTes
through their hands, is never carried into the fu-
preme court.
As to the outcry that has been raifed about
fixteen hundred, or fixteen thoufand, or fixteen mil-
hons of judges if gentlemen pleafe, calculating on
the abufe of power by the conflituted authorities
in the ufe of it, the honourable gentleman from
Conneflicut has fo fully and unanfwerably replied to
it, that I fliall make no obfervations on the fub-
jeh
203
The gentleman from Georgia, on my right,
(General Jackson) has told us, that theconftitu-
tion cannot be altered in any other way than by two
thirds of Congrefs agreeing to it, and then, very
emphatically, afked, will two-thirds now agree ? I
hope not, fir ; but, becaufe a fufficient number of
us cannot agree upon altering it conflitutionally,
will gentlemen force their way through it by vio-
lence, in order to get at thefe judges ? The fame
honourable gentleman has been pleafed to compare
this fyftem, and thefe judges, to a cotton machine ;
when done, if it lliould not work to fuit the maker,
he tears it all to pieces and makes a new one. Are
we at liberty, to infer from this, fir, that the pre-
fent judges cannot be made to work to fuit the pre-
fent rulers, and that this fyflem is to be demolifhed,
to difplace them, in order to make a new one, and
feat upon your benches of juftice creatures more
pliable ? I hope not, fir, I am fure fuch cannot be
the views of any honourable gentleman.
It has been, day after day echoed, and re-echo-
ed, from one fide of this chamber to the other, that
this law was one of the lafl expiring afts of the for-
mer adminiflration, that the leo^iflature had no rifrht
to pafs it becaufe they knew it would be repeal-
ed. What, fir, are we told that a majority of the
lail Congrefs had no right to pafs a conftitutional
law ? This is novel doctrine indeed ; and were
they to omit doing good, becaufe they had reafon to
believe their fucceffors would do evil ? I acknow-
Dd
204
Icdgc, fir, that the eftabhfliiuent of this judiciary
fyftem was one of the lad ads of the former admi-
niflration, and it was the very befl aft ; the deftruc-
tion of it is Hkely to be one of the firft: afts of the
prefent adminiflration, and I pray God that it may
be the worft, but, from fuch a beginning, the end is
indeed incalculable.
Sir, thefe judges may, by the ftrong arm of le-
giflative power, be driven from their feats ; not
their own unimpeachable integrity, their virtue,
and their learning, or even the facred barriers of
the conftitution itfelf may be fuflicient to avert their
fate, but remember, though advanced in years, ma-
ny of them will live to fee, what the gentleman from
Maryland has called, the efflux of pafTion and reflux
of reafon they will live to fee the people of this
country, review, with horror, the prefent attempt,
and if, till then, they fliould happily preferve their
peace and liberties, wonder how it has happened.
I will now, fir, in conclufion, notice, in a flvle
that it deferves, the language which the gentleman
from Virginia, in the difcufijon of this quefiion,
applied to the flate of Delaware ; language un-
worthy of this floor. He tortured an cxpreflion of
my honourable friend from New- York, to furnifli
hirafclf with an opportunity of travelling far out of
the fubjeft, in order to infult the honour of the flate
I belong to. After fpeaking of the fuability of ftates,
he obferved, that " he fhould feel the fame inter-
eft for any ft ate, large or fmall, whether it were the
205 :
little ftate of Delaware herfclf, or the ftill more in-
fignificant republic of St. Marino.** The fpeech is
not yec in print, but if I am wrong the gentleman
will corre<5t: me. Mr. Mason explained j he did
not mean, by what hefaid, any thing derogatory to
the ftate of Delaware j on the contrary he enter-
tained a high refpeft for that ftate. Mr. White.
I hope, Mr. Prefident, I may be further indulged.
I did not, at the moment, diftinftly hear what the
gentleman faid ; but now muft infift on knowing,
explicitly, from him, not only what he meant, but
whether he believes the word " inlignificant," as
ufed by him, could, in any way, apply to the ftate of
Delaware. Mr. Mason was about to explain fur-
ther, when the Vice-Prefident rofe from his feat
and obferved, that he was not in the Senate when
the gentleman from Virginia fpoke, but if he had
ufed any fuch words, as were charged to him^ they
were improper, and ought not to have been' per-
mitted. That no refle(5tions on any ftate, or gen-
tleman, ftiould be fuffered in the Senate ; and that
he hoped the gentleman from Delaware would take
no further notice of it. Mr. White As the
gentleman is now pleafed to deny his intention, in
obedience to the chair, I fliall fpare myfelf the trou-
ble, and his feelings the pain, of a retort that very
readily prefents itfelf.
Mr. Chipman, of Vermont- Mr. Prefident.
After the length of time which has already b?en con-
fumed, and the abilities which have been difplayed
206
in this debate, I can have but little hope of exhibi-
ting any thing new for the confideration of the Se-
nate. Yet, momentous as I confider the dicifion to
be made on the prefent queftion, involving confe-
quences powerfully affefting the mofl important
principles of the conftitution, I cannot perfuade ray-
felf to give a merely filent vote on the occafion. la
the obfervations which I intend to make, I fhall en-
deavour, briefly, to examine fome of the principal
arguments only, which have been offered in favour
of the refolution on your table.
The arguments, in fupport of the refolution, have
been reduced under two general heads.
1. The expediency of repealing the law con-
templated in the refolution, and
2. The conftitutional power of Congrefs to re-
peal that law.
To evince the expediency of the raeafure it has
been faid, that the fyflcm of 1793 was adequate to
all thepurpofes of the national judiciary ; and that
the judges, appointed under that fyftem, were com-
petent to all the judicial duties required. Upon this,
fir, I (hall briefly obferve, that, from the number of
terms of the fupreme and circuit courts, and the im-
menfe di fiance to be travelled, the labour was un-
reafonably great. From the labours and fiitigucs of
riding the circuit, there could not be allowed time
fufljcient for thofe ftuties, and for that calm and de-
liberate attention, which is fo neccfllary to a proper
difcharge of the duties of a judge.
207
At times it has happened, that a fupreme judge
could not attend a circuit court ; from this circum-
stance, the court in the diltrift to which I have the
honour to belong, has more than once failed to be
holdcn. At other times the arrival of the judges
has been fo late, that the proper bufinefs of the
term could not be completed. Thefe failures occa-
fioued very great delay, expenfe, and vexation, to
the fuitors ; and we know, that the fame or greater
failures and delays have, unhappily been experienced
in other parts of the United States, failures and de-
lays which I cannot attribute to any criminal negli-
gence of the judges, but to the burthenfome duties
impofed by that fyftem, and the infirmities and ac-
cidents to which men mult ever be expofed, in the
performance of labours fo arduous and extenfive.
To prove that, judges of the fupreme court
muit have been competent to all the duties of that
and the circuit courts, the honourable gentleman,
who brought forward the refolution, drew a com-
parlfon from the courts and judges in England. He
has told us, that in England, there are but 1 2 judges,
and three principal courts, that thefe courts embrace,
in their original or appellate jurifdiclions, almoft the
whole circle of human concerns, that the two courts
of King's-bench and Common pleas, confifting each
of four judges, entertain all the common law fuits
of 4CS. and upwards, arifing among nine millions
of the raofl commercial people in the world ; and
that they have moreover, the revifion of the proceed-
208
iiigs of all the fubordinate courts in the kingdom,
down to the courts of piepoudre j and that, from
long experience, thefe courts have been found fully
competent to all thebufmefs of the kingdom. This
flatement, fir, is by no means correft. In England
the Houfe of Lords is the fupreme court of appeals
in the lafl refort, in caufcs both at law and in equi-
ty. Inftead of three, there are four fuperior courts.
The court of chancery, iu which are decided all
fuits and matters in equity, including a very numer-
ous and important clafs of caufes. 1 he courts of
king's-bench, common pleas, and exchequer, all of
which have original jurifdiftion in civil caufes ; and
the king's bench, befide being the higheft court of
criminal jurifdidlion, has alfo the correftion and re-
vifion of the proceedings of all the fubordinate
courts, by writ of error or otherwife. The fubor-
dinate courts, which were barely mentioned, arc
very numerous. There are, in England, exclufive
of Wales, more than forty counties, all of which
have their feparate courts and judges. Some of the
counties are regular franchifes. Lancafler, Chefler
and Durham, have their feparate courts, both of
law and equity, which claim cognizance of caufes
and parties, within their refpeftivcjurifdiftions.even
againfl: the courts at Weftminfler. There are alfo
an iramenfe number of cities and towns corporate
throughout the kingdom, the courts and judges of
which, though more or lefs limited in their jurifdic-
tion, entertain a vaft variety of civil fuits. There
209
are, befides thefe, the high court of admiralty, which'
has an excluflve jurifdiftion in maritime caufes ; the
courts of the two univerfities, the prerogative court
of the archbifhop of Canterbury, the archiepifcopal
court of York, the diocefan and other ecclefiaftical
courts, having alfoan extenfivejurifdidlion, of a civil
nature, in caufes tellamentary, and thofe relating to-
the diftribution of the goods of inteftates.
Wales is a principality, and its courts have ex-
cluflve original jurifdiftion within the territory. The
great felTions is the higheft court of the principality
from which a writ of error lies in the court of King's
b.ench. The fubordinate courts and. judges arc
equally numerous in proportion to the territory and
inhabitants with that of England. I omit the courts
of confrience and other inferior courts, and magif-
trates, almoft without number, From this view,
though imperfect, it is evident, that the comparifon
attempted by the honourable gentleman, is by no
means favourable to his conclulion. The population
of that country exceeds in number, that of the Uni-
ted States by one third, perhaps more. But its
whole extent, inclufive of Wales, though not com-
prehended in the Nifi Prius circuits, does not equal
one of the circuits of the United States, under the
fyftcmof 1793 ; and yet that country employs, it
is believed, more courts and judges, not only than
the government of the United States, but than all
the individual dates taken in addition. I do not
however conceive that any advantage is to be de-
210
rived from the comparifon to the one fide or the
other. The fituation of property and civil policy,
numerous and compHcated rights, introduced by an-
cient ufages and fupported by laws and habits, and
by intercfls public and private, may render a great-
er number of courts and judges, a more extenfive
judicial fyftem, neceffary in one country than in
another I think it ought to be laid wholly out of
the qneftion.
It has been faid, that a knowledge of the local
laws, of the cuftoms and manners of the fcvcral
ftates, is neceffary to the judges of the fupreme
courts, and cannot be difpenfed with, on appeals in
caufes arifmg in different parts of the Union, and
that the judges can acquire this knowledge in no
way but by attending the circuit courts in the feve-
ral ftates. But let me obferve, fir, that the laws of
the feveral ftates, which vary from the common
law, are to be found in their ftatute books, in the
decifions of their courts and their rules of praftice,
for no cuftom can as fuch become a law, until it fliatl
have been adopted by ufages and cftabllftied by ju-
dicial decifions. All thefe may be made to appear
on an appeal, either on the face of the record, in
the pleadings, or in a fpecial verdidl, or by proper
exemplification, and will afford the court in fuch
cafe a more correft knowledge, than the recollec-
tion of a judge, of what he has caught in the hurry
ind fatigue of the circuit.
211
A further objelion has been urged agaiufl: the
contmuance of the prefent judicial fyftem, from the
additional number of judges which it has introduced,
which, it is faid, may prove dangerous to the liber-
ties of the* country. An honourable gentleman from
^'Georgia (Mr. Jackson) cited the opinion of an
author who has written on the Briiifli conilitution.,
that the greateft political evil which could befall a
country, was the exigence of large judiciary bo-
^ dies, and who had illuftrated his ideas on that fub-
Vjeft by inftancing the parliaments of France This
obfervation does not, neither was it meant by the
author to apply to any particular number of courts
in due fubordination, each confiding of a fmall and
t limited number of judges, and employed folely in
'proper judicial bullnefs. But it applies with force
to courts compofed of numerous members and form-,
ing large bodies, who in addition to their proper
'judicial funftions, are permitted to aifame an au-
' thority in the political concerns of the nation. Such
were the parliaments of France, the late judicial
courts of that country ; particularly the parliament
of Paris, ''i'he members of this body were very
/numerous, and as it was necelTary that all royal
* cdifts, before they were to be co'nfidered as laws,
*'fliould be regiftered in that court, they claimed the
^ right of deliberating and deciding on the regiftra-
' tion of any edil offered by royal authority, and
confequently of permitting or refufmg it the fanc-
tion of a law. With this claim that body certainly
Ee
212
became dangerous to the cxifling government, and the
contefl which enfued between them and the king on
this fubje(l:, had, no doubt, a powerful effcft in
precipitating the late revolution in that country.
But there is nothing in all this which cao be applied
to the courts of the United States, Let rae ob-
ferve, fir, that there has always appeared to mc,
in the fyflcm of 1793, which is fought to be ref-
tored, a very great and manifeft impropriety.
The circuit courts were in that fyftem, though fu-
bordinate, in fome raeafure blended with the fu-
preme court, one or more of the judges of the
fupreme court being always judges of the circuit
courts. This rendered the fupreme court a fluctu-
ating body, fome of the judges of the fupreme
court being always excluded in the decilion ofcauf-
es coming by appeal from the different parts of the
United States. And when two fupreme judges
held the circuit courts, of the four remaining judg-
es who were to decide on an appeal, three might
reverfc a judgment againfl the opinion of the fourth
and the opinion of the two judges in the circuit
court. This has always appeared to me, to fay no
more, a very glaring impropriety in that fyftem.
The circuit courts under that fyftem have indeed
been compared to the Nifi Prius courts in England,
but the flighteft attention will convince any one
that they do not compare. The circuit courts in
our fyftem are courts of original and diftin^l jurif-
di<^ons J not fo the courts of Nifi Prius in England ;
2m
thej are confidered as a branch of the fuperior
courts at Weftminfler, and are held by a commiflion
of affize ufually ifTued to a judge of one of the fu-
perior courts, and an aflbciate for each of the lix
circuits into which England is for that purpofe divi-
ded. When a caufe in any of the fuperior courts
is, by the pleadings, put on an iffue of faft, it is with
the record fent to be tried at Nifi Prius by a jury
of the proper county ; inflead of calling up a jury
to try it at bar in W^ftminfter Hall. After the tri-
al at Kifi Prius, the verdi'ft with the record 'is re-
mitted tothe court, out of whicb it was fent, and
there the opinion of the Nifi Prius judge and the'
conduft of the jury are examined and confidered asl
matters paffing in the farce court. Here then the^
comparifon wholly Ulh; there is nofimilarity be-
tween the two fyftems, except that of a judge riding
tha.circuit.
Here, fir, I ihall wave any further obfervalions
on this pare of the fubjeft, and come to the great
queftioa which it is neceffary to decide. Have
GoDgrefsf the conftitutional power to repeal the law
as contemplated by the honourable mover of this re- .
folution? To abolifli the courts eflabhftied by that
law, put down the judges and abolifli their falaries ?'
It is true, as was obferved by the honourable gentle-
man from Georgia (Mr. Baldwin) that the refolu-
tion d(!)es not neceflarily involve that quefl:ion, be-
caufe the repealing aft, if the refolution fliould be
adopted, may be fo modified as to avoid any diffi-
214
cultyou the great point. But as the honourable ino.
ver avowed his intention to be an aboHtion of the
courts, the offices of the judges and their fabrics,
and as the principal arguments have in the courfe
of this debate been dircftcd by that view of the fub-
jeft, I (hall be permitted to confider it on that
ground.
One fource of argument in favour of the mea-
fure propofed, has been derived from the powers
confidcred as incident to every legiflative body. It
is faid that a power to repeal all its legiflative a6ts
is infeparably incident to every fovereign legifla-
ture that the aft, the repeal of which is contem-.
plated, is a legiflative aft of Congrefs, therefore
Congrefs ncccflfarily have the power to repeal it
that to admit the contrary, k to fay that the power
of Congrefs at one time is not equal to its power at
another time that a fubfequent may be bound by
the afts of a former Congrefs, contrary to a very
important maxim in legiflation in a word, that it
is to make the creature greater than the creator,
as it denies to Congrefs the power over its owa
afts, which it has paflcd, and will in courfe put a
flop to all amendments, all improvements of our
laws. This doftrine, here meant to be alTcrted, is
not in the full extent applicable to the legiflative
powers under our conflitution. There are afts
which Congrefs are, by that inflrument, exprcfsly
denied the power of pafling there are ads which,
whenever paflTed, Congrefs cannot repeal, or rather
215
the effefts of which they cannot even fufpend, much
lefs can they deftroy. They are cxprefsly denied
the power of pafUng ex poft fafto laws ; and this
appHes no lefs forcibly to a repealing aft than to
any other aft it is by its operation that the na-
ture of the aft is in this cafe determined. Every
aft which in its operation attempts to diveft any
right previoufly acquired, whether by a former
aft of legiflation, or by any other lawful means of
acquifition, is in name, nature and eiTence, ex pofl
fafto.
Indeed, fir, I apprehend that forae gentlemen
i^have been led into a raiilake on this fubjeft, by an
incautious admilfion of maxims and theories of
legiflative powers in another government ; but
which do not apply to our government, as inflituted
and limited by our conftitution. There are, fir, in
every nation two kinds of legiilative powers. The
one is original and extraordinary ; and may be
called the power of political legillation. It is by
an aflbciating nation employed in forming and or-
ganizing the government, in difpofmg its powers
and defining, or limiting their exercife. The other
is derivative, the ordinary power of legiflation, and
is employed in the civil regulations of the commu-
nity* .In the firll confifts the political fovereignty
of the nation. This power is tranfcendant. It is
paramount to all other powers in the nation. It
can create powers, rights and duties, and can abo-
iifli them at pleafure j not becaufe what it does, is
216
always wife or even juft ; but becaufe no other
power iO' the nation can have a right, or can be
equal to control its operations. In Great-Britain;
from ancient ufage, the confent of thcnation wit-
neffed by long and general acquiefcence, both the
ordinary and the extraordinary powers of legifla-
tion are confidered to be vefted in the parliament
of the nation^ ailing in this capacity of political
fovereign of the nation, the Bfitifti parliament can
create rights, and can -deilroy exifting riglus at will ;
although in cxercifing fuch acls of power, they pro-
ceed wifh great caution-, aiid are careful to indenftui-
fy individuals whofe rights they may have injured*
It this capacity, it can, as it has done, new model
the government. It can fix and alter the duration
of parliaments, and change and limit the defcent of '
the crowuv Indeed vefted with this power, in* ad-
dition to the ordinary powers of legiflation, the fi-
gure is hardly too bold, by which, when ading on
fubjets within the reach of its authority, it is faid'
to be omnipotent^ Not fo the Congrefs of th^
United States, they poflefs not that tranfcendant
power, that uncontrolable fovereignty of the nation ;
they poflefs the ordinary powers only of legifla-
tion ; and thefe powers they derive under the con-
ftitution of the United States : by this inflrument
their powers arc inftituted, limited and defined.
This inflrument is the a^ of the political fovercign,
the people of the United States. To them it was
propofcd, and they through their agents impowercd
fil7
for that purpofe, ena<9:ed it the fandamental and fu-
.preme law of the national government. They have
faid, as they Jiad a right to fay, on this fnbjeft
i.-Congrefs fliall aft : or that they may ad at their
t.idifcretion j here the congrellional power is Hmi'iecJ,
fvthere is placed a barrier which ihall not be paffed.
7* 4,Congrefs, as: 1 obferved, poffefs not this paramo'ant
f^powe^^ but in one made, provided for altering -and
amending the conftitution, they are under certain
rcilriftions, permitted an inceptive power. They
.have a right to originate propofals of amendment?,
which, when ratified by three-fourths of the Hate
iegiflatures, to which the national fovereignty is in
thisinitance referred, are adopted into and become
a part of that inftruraent ; in another mode the
. ftate Iegiflatures have the power of inception. They
.alfo may originate propofals of amendments,
which Congrefs muft refer to a convention of the
..people for their ultimate acceptance and ratification.
In this inftance alone have the people of this coun-
try referved to themfelves a portion of the national
fovereignty, in the exercife of which only is found
that voice of the people, which, becapfe it is not to
be refifted, is fometimes called the voice of God.
This, fir, is the authority of that fupreme law un-
. dcr which we aft, the conftitution of the United
States ; an authority indifpenfably binding. We
have -no right, when we wifli to<:arry a favourite
meafure, to which we find fome barrier oppofed by
the cQuftitution, to proftratc or overleap that bar-
218
rier. We have no right to fay that the national
foverdgn, could it now be confulted, would dif-
penfe with the limitation, would remove the barrier,
which, in our prefent opinion, (lands oppofed to the
public good. No, fir, we may not approach this
ground. It is dangerous ; it is an ufurpation of
the national fovereignty. We are but agents of
the nation afting under a limited authority. All
our afts which exceed that authority are void.
Thefe are the principles to be applied in the in-
veftigatlon of conftitutionaj powers. Let us then
examine the conflitution upon thefe principles, and
fairly determine whether we are permitted the
power for which it has been contended, the con-
ftitutional power to remove a judge, by abolifliing
the office, and confequently to deprive hira of his
falary? The firft provifion which we find in the
conflitution relating to the judicial department is in
the fecond feftion, where among other powers enu-
merated, it is declared that Congrefs /hall have
power " to eflabllfh tribunals inferior to the fu-
premc court." Upon this it was obfervcd by the
honourable gentleman from Georgia (Mr. J.; that
this being a grant to Congrefs of a legiflative pow-
er to cRablifli inferior courts, necefTarily includes
the incidental power to repeal ; that this being a
firfl grant, cannot be reflrained nor taken away by
any fubi'cquent provifion in the conflitution upon
the fame fubjeft ; that we are to take the rule of
conllrn^tion, that the firfl grant, and thcfirfl words
319
of the grantor in a deed, fliall prevail over a fub-
fequent grant, or fubfequent words of a different
import. Are we, indeed, lir, to apply in the con-
ftrudiiion of the conftitotion, the law, the fupremc
law of the nation, the rules devifed for the cor-
ftrulion of a deed, a grant, by which a few paltry
acres arc transferred from one individual to ano-
ther ? No, fir, very different are the rules of con^
ftru^Hon ; the firft a*^: of the grantor, but the lafl
al of thelegillature, fliall prevail ; or where, in any
cafe, is the power to repeal ? Another rule more
univcrfally applicable is, that you fhall fo conftrue a
law that every part of it, if pofTible, may (land toge-
ther, that every part may have its operation. Thus
if there be a general provifion in the former part
of a law, and there follow a particular provifion,
which cannot take efFel unlefs fome part of the
former provifion befet afide, the latter fliall becon-
fidered as a limitation of the former, and which fliall
be carried into efFel fo far only as it is not incom-
patible with the latter.
In the third feftion of the confl:itution is a fur-
ther provifion, " That the judicial power of the
United States fliall be vefted in one fupreme court,
and in fuch inferior courts, as the Congrefs may
from time to time ordain and appoint.'* The
highefl: judicial authority fliall not be divided into
two courts. It fliall, to ufie a ruder phrafe, be one
and indivifible. 1 confider it as imperative to Con-
grefs to eflabliihnot only a fupreme court, but alfo
Ff
220
to eflablifli fomc courts of inferior jurifdiftion,
which may be modified and extended from time to
time as experience and future expedience Ihall dic-
tate, fo that it be without violence to any part of
the conftitution. The words, *' as Congrefs may
from time to time ordain and appoint," were intro-
duced with intent fo far to give a difcretion on the
fubjeft. The power of erefting courts, is here
taken for granted, and is contained in the claufe be-
fore cited, from the 2d feftion, fupplied by the
general claufe by which it is declared, that " Con-
grefs ihall have power to make all laws which fhall
be neceffary and proper for carrying into effeft all
the powers vefted by the conftitution in the govern-
ment of the United States, or in any officer or
department of the government.'* I cannot undcr-
ftand it ; for how is it poffible fo to underftand it,
that the words " may ordain and appoint," in their
connexion, imply alfo a power to abolifh ? Cer-
tainly it is not a neceffary implication. That Con-
grefs are required to make a provifion of inferior
courts, that the thing is not merely optional, is very
clear from another part of thisfedlion, declaring to
what clafs the judicial authority of the United
States fhall be extended. (Read that part of the
feftion.) Here obferve, the fupreme court has
original jurifdi(flioo in the fmaller number only of
the cafes fpecified ; fo thit without a provifion of
inferior courts, there would be no provifion for the
greater number, and the judicial authority, inftcad
'^1
of being extended to all the cafes enumerated,
would in fament,
which is not vefted with the unlimited national fo-
vereignty, but from that derives its powers, nor
"with the pofitivc and folemn declaration of the con-
ftitution. That conftitution is a fyftera of powers,
limitations and checks. The legiflative power is
there limited, with even more guarded caption than
225
the executive ; becaufe not capable of a check by
impeachment, and becaufe it was apprehended,
that left unlimited and uncontrolled, it might be ex-
tended to dangerous encroachments on the remain-
ing ftate powers. But to what purpofe are the
powers of Congrefs limited by that inftrument ? To
what purpofe is it declared to be the fupreme law
of the land, and as fuch, binding on the courts of
the United Slates, ,and of the feveral ftates, if it
may not be applied to the derivative laws to teft
their conftitutionality ? Shall it be only called in
to inforce obedience to the laws of Congrefs, in oj>
pofition to the als of the feveral ftates, and even
to their rightful powers ! Such cannot have been
the intention. But, fir, it will be in vain long to
expeft from the judges, the firmnels and integrity
to oppofe a conftitutional decifion to a law, either
of the national legiflature, or to a law of any of the
powerful ftates, unlefs it fhould interfere with a law
of Congrefs j if fuch a decifion is to be made at
the rifk of office and falary, of public character,
and the means of fubfiftence. And fuch will be
thefituationof your judges, if Congrefs can, bylaw,
or in any other way, except by way of impeach-
ment, deprive them of their offices and falaries on
any pretence whatever. For it will be remember-
Gd, that the legiflative powers of the feveral flates,
as well as thofe of Congrefs, are limited by the con-
ftitution. For inftance, they are prohibited, as well
as Congrefs, to pafs any bill of attainder or ex poft
226
fa^lo law. The decifions of the judges upon fuch
laws, and fuch decifion they have already been
called upon to make, may raife againft them, even
in Congrefs, the influence of the mod powerful
ftates in the Union. In fuch a fituation of the
judges, the conflitutional limitation on the legifla-
tive powers, can be but a dead letter. Better
would it be they were even expunged.
Thus, fir, it appears, that the independence
of the judges, even of Congrels in their Jegiflativc
capacity, is agreeable to the nature of our go-
vernment, to the whole tenor as well as the exprefs
letter of the conftitution. But, fir, at this late
ftagc of the debate I will not farther enlarge ; I will
only add that upon thcfe principles, and with thefc
views of the fubjeft, I {hall give a hearty negative
to the refolution on your table.
Mr. Wells, of Delaware. I know not what apo*
logy 1 Ihall make for rifmg at this late period of the
debate, unlefs I find it in the importance of the fub-
jciSt under difculTion. Coming, as I do, from one of the
fraailer ftates, all of whom, from their peculiar fitu-
ation, feel perhaps more than a common intcreft
with their fifter ftates, in the prefervation of this
conflitution, 1 could not be indifferent to the pro-
grefs of the prcfcnt queftion. To a ftate circum-
(lanced like that to which I have the honour to be-
long, the conftitution of the United States is the
charter of her rights, and the palladium of her li-
berties. I muft, therefore, be forever induced by
227
ii^ntiments of attachment as well as duty to refifl
a meafure calculated to fubvert that conllitutioa*
Such, 1 believe, is the tendency of the refolution oft
your table. When I fay fo, I do not mean to im-
pute any unworthy moiive to the gentleman who
moved the refolution ; or to thofe who have fup-
ported him. AfTured I am that thofe gentlemen
regard this bufinefs in a very different light from
what we do, or they would not have brought it
forward. Believing that the law in qucftion is a
bad one, and may be conftitutionally repealed, it
was their duty to endeavour to effeft its repeal.
Permit me now, fir, to glance in as curfory a
manner as poffible, that I may take up no more of
your time than need be, at fome of the reafons which
have been afTigned by the friends of this refolution.
We have been told that the law propofed to be re-
pealed, is unneceffarily expenfive. That it is not
calculated to promote the proper obje6ls of a judi-
ciary, and may be conftitutionally repealed. That
the old fyftem, which this has fuperfeded, was fuf-
ficient for the due adminiftration of juftice, and
therefore it is expedient to revive it.
It is true, fir, that the retrenchment of expences
has been recommended to us by the Prefident. It
was his duty to do fo. It is what the people had
a right to expert from us, as well as him. And
thefe expe(51;ations, I truft, woiild not have been dif-
appointed, even if our attention to it, had not been
invited by the executive. We are placed now in a
Gg
228
very different fituation from what we have been
for feveral years. The war in Europe is over.
A war, permit me to fay, more dreadful than any
we read of It has raged like a tremendous tem-
pefl: bearing down almofl: every thing before it. It
was not to have been expe^ed that this our nation,
towering hke the majeftic oak, fhould have efcaped
its fury, yet it has left us {landing ; the pride of the
forefl and the only one to which it has not done
fome cruel mifchief. But the florm is paffcd by ;
the danger is over ; and many expenfive cftabliih-
nients may now be reduced which could not before
have been relaxed. It may now be economy to
fave, what it would have then been ruin not to
have expended. But is the judiciary of a nature
to be reduced to what is called a peace cftablifh-
ment. From the manner in which gentlemen have
talked of the expenfe of this department, it would
feem that the fum to be faved by the meafure now
contemplated was 137,000 dollars, whereas the
real amount is only about 30,000 dollars. It is true,
fir, this fum itfelf, were it even lefs, w ould be too
much to fquander away. But when you confidcr,
that if you revive the former law, you mufl unavoid-
ably incrcafe the number of the judges of the fu-
preme court, the difference of expence between the
two fyftems will, probably, be about 12 or 15,000
dollars. And for this fum, amounting, among the
people, to lefs than one third of a cent per m.an,
will gentlemen pcrfifl: in a meafure calculated, in the
229
opinion of almofl: half of the members of this body
to fubvcrc your conflitution ? Is this the economy
which our conflituents require from us ? Do they
wifh us, Hke rafli and greedy gamefters, to rifque
their all upon one fmgle call of the die? If the
gentlemen are right, we fave about 12 or 15,000
dollars. If they are miftaken in their opinions, we
lofc our conftitution. Is there any poflible com-
parifon between the advantage and the rifque ? But
for argument fake be it admitted, that the danger
on either hand is equal. Let us then examine the
claims of each opinion to preference :
By the former law, which it is now propofed to
repeal, there were fix judges of the fupreme court
appointed in the United States. In each ftate was
placed one diftrift judge. For each flate there was
held a circuit court twice a year : this was compo-
fed of one or more of the judges of the fupreme
court and the diftril judge. 'J he diilrift judge in
each flate held a court of his own four times a year.
The judges of the fupreme court, befide holding
thefe circuit courts, were twice a year to hold a fu-
preme court at the feat of government. One ob-
jection, in my mind, to the old fyflem, was the du-
ties of the inferior and fuperior judges being blen-
ded together and not fufficiently feparated. Thus
the judge of the diftrift court was called to go up
and affociate himfelt with thejudge of the fupreme
court ; who was obliged to come down from the
highefl court to hol,d^, circuit court. Your judges
250
^CTcYikc a Proteus ; conftantly changing their cha-
raftcr. Each fet of judges, in my opinion ought to
have their appropriate fpherc, and fhould never be
fufTcred to move out of it. Another objeftion is not
without its weight. The fame judges did not al-
ways attend the fame circuit court; and, according
to the gentleman from Georgia, (Mr. Baldwin)
this change is neceflary, in order that the jodges
may in turn become, all of them, acquainted with
the municipal laws and cufloms of the different
ftates. What was the confequence ? A judge after
attending a circuit court, and hearing a learned ar-
gument was obliged foraetimes to poftpone his de-
termination to the next term. When that arrived,
a judge of the fupreme court attended ; but not be-
ing the fame that attended before, a new argument
became neceffary. This, fir, may have been delight-
ful fport for the gentlemen of the bar : the poor
clients mufl: have felt far differently. Tut the
ftrongefl: obje<5^ion to the fyftem was the impoffibility
of the judges difcharging the duty rcqirired of them.
Thcfe fix judges were to attend among them eight
and thirty courts in one year. Confidering the im-
menfe extent o' country over which thefccourts were
fpread, and making due allowances for the many
caufcs which would probably always prevent two
or more of the judges from attending the circuits,
each judge would have to attend twelve courts in a
year. If this fy ft em is \o prevail, you mufl feled
your judgcSj as you inliil your foldicrs. Inftead of
231
enquiring for lawyers of integrity and talents, you
mud look out for able lx>died men ; for fuch as arc
bed fitted to (land the fatigue of conflant travelling,
and lead liable to be affcifted by the inclemencies of
weather. It is impoffible, if gentlemen will reflc(fl,
that they can believe It expedient to revive a fyflem
fo liable to objeftions, fo impoffible to be executed.
Let us now for a moment examine the law which
is propofcdto be repealed. It clafies the United States
into fix circuits. In each of the dates comprifiug a
eircult, there is a circuit judge. In each circuit
there is a court compofed of the circuit judges hv-
ing within that circuit. The judges of the fupreme
court hold their feffions at the feat of government
twice a year. There is an appeal from the didrl6l:
court of each date, to the court of the circuit with-
in which that date is claded. From the determina-
tion of the circuit court there Is a final appeal to
the fupreme court. The fame judges are not here,
as under the former law, judges of the fuperlor and
inferior courts. Each has his proper dation. No
judge will here have to adl: upon an appeal from his
own decifion. In the one there Is order and fymrae-
try ; in the other nought but confufion.
But it would.feem In vain to reafon upon the re-
lative value of the two fydems ; for gentlemen
think that they have difcovered by arithmetical cal*
culations that the late law was unnecefi^ary. They
endeavour to prove that the fuits were dccreafing
in number at the time the additional judges were
"N
232
appointed. The document they rely upon for this
purpofc, is a return made from the clerks of the dif-
ferent circuit courts ; ihewing the annual number of
fuits brought in each court fmce the year 1 790. This
return is not only inaccurate, but furniflies direftly
the reverfe conclufions from thofe which have been
drawn from it. I fay it is inaccurate, becaufe the
return from the court of Maryland is entirely omit-
ted, and the aggregates of the fuits in the dates of
TennelTee and Kentucky are only given. It is incor-
rect in another refpeft. On the returns from the
ilates of Maflachufetts and Virginia, it isflated that
the suits depending are not included in thofe columns
which fhew the number of fuits annually inftituted.
This document, therefore, is two glaringly incor-
rcl to be relied upon for eftablifhing any conclu-
fions which ought to guide us in bufmefs of this im-
portance. But let us take it as we find it, and fee if
the calculations of the gentleman from Kentucky
(Mr. Breckenridge) are more to be relied upon
than the document itfclf. The gentleman fays
that in 1799 there were 1277 fuits inftituted ; and
in 1800 there were 687 fuits commenced ; fliewing
a decreafe " notwithflanding,** as he fays, " all
the temporary and untoward fources of federal ad-
judications," of 590 fuits. There is one circum-
flance of importance to be noted in making this cal-
culation. In the year 1799, there were 423 fuits
brought in South Carolina, which is more than one
half of the whole number of fuits brought in that
flatc for ten years tojcther. The greater part of
233
thcfc fuits were brought by Whitney and compa-
ny, for the infringement of a patent right which they
had obtained. The largeft number of fuits brought
in that ftate in any one year preceding the year
1799, was 104. The gentleman from Kentucky
includes thefe fuits in that year's account 423
He includes all the criminal fuits brought in
thofe ftates from which the returns arc
made amounting to 132, ai>d all other
fuits amounting to 722 854
Making, for fuits brought in the year '99
the number of . '^'^n
Then he allows for the fuits of i8oo,
only 687
He omits the whole of the criminal
fuits of that year, which amounted
to 102, and of other fuits iqo : ma-
king together, thus omitted 202
Making together 889
Leaving a decreafe of fuits, inftead of 590,
only 388
It will be obferved, as before-mentioned,
that there are included in the account of
fuits brought in the year 1799, 423 fuits
brought that year in the (late of South-
Carolina. Thefe exceed by 319 the
highefl number of fuits brought, in any
preceding year in that flate. It will
therefore be neceflarv to deduft thefe
234
out of the above number in taking a fair
view of this fubjeifl i^ig
The real decreafe, between the years 1799,
and 1800 will only be 69
But in order to place this bufinefs in a flill
clearer point of view, I beg leave to fubmit a cal-
culation (hewing the annual aggregate number of
fuits from '90 to 1800, from which I have exclud-
ed the whole of the fuits brought in South-Carolina
lince the firfl eftablilliment of the courts :
1790
111
1791
306
1792
'793
400
1794
3^5
1795
527
1796
466
1797
924
1798
614
1799
854
1800
781
The following calculation is made in order to
fliew the number of fuits brought, including thofc
of South Carolina for 1790 to 1800 :
1790 I 1791
III I 3'3
1792
333
1793
446
1794
3^5
795
6(4
1797
977
1798
7^9
1799
1277
1000
889
1796
490
Thus, although it is apparent that there has
been a gradual increafe of fuits, fince the firfl efta-
blifliment of the judiciary, yet the geutleman from
Kentucky has cndcavoarcd to imprefs an opinion,
that the fuits have decreafed in the proportion that
687 bears to 1 277 j and this, to ufe the gentleman's
235
language, " notwithftanding all the temporary and
untoward iburccs of federal adjudication.'* Yet
he has taken fpeciai care, in order to fwell up the
fuitsof the year 1799, to draw, from " thefe tem-
porary and untoward fources of federal adjudica-
tions,*' all the criminal fuits of that year, and to in-
clude the 319 fuits of Whitney and company; but
obferve when he comes to put down the fuits of
1800 to contrail them with the number brought in
1799, thefe " untoward fources** arc immediately
dried up, for he excludes from his account all the
criminal fuits of that year, and 100 other fuits. Pray
fir, what kind of arithmetic is this ? Is this the fe-
deral arithmetic which gentlemen have talked fo
much about ?
Permit me now, fir, to fay but a word or two
upon the unconftitutionality of this meafure. The
conftitution has declared, that the judicial power
Ihall be veiled in a fupremc court, and in fuch in-
ferior courts as Congrefs may, from time to time,
create. It 2ias added, that the judges of both the
inferior and fuperior courts fhall hold their offices
during good behaviour ; but may be removed on
impeachment, by the Houfeof Reprefentatives and
convidion by two thirds of the Senate. What
words can go ftronger to the exclufion of every de-
pendence of that department upon the pleafure of
any other. The people have thus duly fecured
the two great objefts they had in view the inde-
pendence of the judges and their refponfibility.
Hh
236
This however is a new way of getting at the judge
without affefting his independence. We will not
touch the judge but we will flip the office from un-
der him. Wc will not lower his falary while he is
in office, but we will fo contrive it that he flaall be
divefted of his office and falary at the fame time.
Thus a mere majority of each houfe,with the concur-
rence of thePrefident, fliall eSci, without any fault
in the judge, what the people defigncd fliould be
brought about only by impeacliment. But we arc
aiked " fuppofe Congrefs fliould appoint an array
of judges." I will fuppofe no fuch thing. There is
every fecurity the nature of the caufe will admit of,
that they will not do it. I will fuppofe the abufe
of no power wliich is delegated by the confl:itotion,
except what is fuppofcd and guarded againfl: by
that confl:itution. If gentlemen will fuppofe the
abufe of power in creating unneceflfary offices, it is
equally fair to fuppofe the abufe of the power
which they contend for ; viz. Tliat of defliroying
the courts. I may fuppofe that it will be done to
get rid of judges however falutary the fyfl:ttm under
which they may be appointed.
I truft, therefore, fir, that this refolution wiJI
not prevail, fiuce it manifeflly appears that the fyf-
tem which geiHlemen propofe to deflroy, is in itfclf
preferable to that which they intend to revive ; and
that the expenfe between the two is inconfiderablc.
But how much more ought this meafure to fail,
when without any poffiblc benefit from the change,
237
it is to deflroy the independence of the judges, and
prepare the way for the fubverfion of our conftitu-
tion.
Mr. CoLHouN, of South Carolina. Much
time, Mr. Prefident, has been fpent in the impor-
tant debate on the refolution before you : great
ingenuity, great abihties, and much eloquence,
have been difplayed on the occafion, by gentlemen
on both fides of the queftion, and the fubjel prefent-
e'd in almofl every poilible point of view. For me,
therefore, at this late flage of the debate, to rife,
for the iirfl time, in this houfe, on a fubjeft of
fuch magnitude and intricacy, already fo ably dif-
cuffed, and expeft to throw much light on the fub-
jeft, or find much new ground to tread on, would
be prefumptuous. But, thinking as I do, that the
prefent queflion, both in principle and in its confe-
quences, is of the higheft importance to the Union ;
under this impreffion, under this cojiviftion, I fhould
be unfaithful to my own feelings, were I to give a
iilent vote on the occafion. If I can, therefore,
throw but the weight of a feather in the fcale that
I think ought to preponderate, I fliall think myfelf
juftified in doing fo. But, fir, the fubjeft has been
fo much exhaultcd, as well as the patience of the
houfe, that I fliall endeavour to be as concife as
poffible, and draw into as narrow a circle as fo ex-
tenfiveafubje-
flitution, on the face of it, appears to have been
drawn with precifion and correftnefs ; nothing fuper-
fluous, nothing difficult. Had the convention in-
tended the conftruftion now infifted for by the fa-
vourers of the relblution, to wit : That the judges
of the inferior courts hold their offices, not during
good behaviour, but at the will of the legiflature ;
an explanatory claufe, after the words " good be-
242
haviour," would have been nccdGTary, and jfhould
have been inferted to this effect : " Provided
always, that the judges of fuch inferior courts fhall
hold their offices only during the exiflencc of the
law under which they may be appointed.*' By the
clearnefs with which every part of the conftitution
has been penned, it is right, it is fair, by analogy of
reafoning, to fay, that as no fuch provifion is infert-
ed, no fuch fuppofed conftruftion was intended,
and that therefore the plain letter and fpirit of the
conflitution muft prevail. But, if pofTible to make
the matter more clear and conclufive, I beg indul-
gence whilft I (late three collateral arguments,
which greatly flrengthen and inforce the conflruc-
tlon which I advocate, of that part of the conflitu-
tion. The firft is, that all enlightened flatefmen, at
lead fmce the American revolution, with concur-
rent teftimony agree, that the judiciary ought to be
kept feparate from, and independent of, the legifla-
tive and execurive powers ; that without this check
and control, there could be no true and rational
liberty. Secondly, that the framers of the confli-
tution, who were themfelves amongfl the bcfl in-
formed and mofl diftinguiflied citizens of the
Union, intended to keep them diflinft and feparate,
as the three great divifions and fupporiing pillars
of the conflitution ; this appears from the diflinft
pofition they afllgned each on the face of that in-
flrument. And thirdly, by the latter part of the
Ifl fcftion of the 3d article, the legiflature have no
24i
power to leffen a judge's Talary, even to the amount
of one cent. This rellriction mufl refer to the
legiflature, as they alone have control over the
funds of the government, for the rule of law is,
" that is certain which can be rendered certain.**
If, therefore, this claufe reflrains the legiflature
from even diminifliing the falary of t!ie judge, a
fortiori, it prevents the removal from the oiEce it-
felf, as the words compofing the whole claufe are
equally plain and expreflive. Thus then it appears,
at lead to me, by the plain and obvious coniirucStion
of the words of the conftitution, confirmed and ex-
plained by the makers of it, that all thejudg s have
a right to hold their offices during good behaviour,
and that the legiflature, as a creature of that con-
flitution, cannot by any legiflative aft, remove
them. The gentlemen, who advocate the refolu-
tion, in fupport of the meafuie, fay, that Virginia,
M-aryland, and the lafl: Congrefs, afford examples
of a legiflature abolifliing courts, and removing
from office judges, who under a conftitution held
their appointments, as in the prefent cafe, during
good behaviour. Let us examine the fafts and fee
if they apply.
Virginia had a general court, with common law
jurifdiftion, which extended throughout their ftate,
a court of chancery with equitable jurifdiftion,
equally extenfive, and a court of admiralty ; the
judges of thefe three courts, conftitutcd the, court
of appeals. About the year 1787, the legiflature
li
of tj^at ilatc found it necefTary to cftablifli circuit
courts, and in the law, cnaftcd, that * the judges
of the court of appeal flioiild be the circuit court
judges.* This law the judges refufed to execute
as unconflitutional, and faid, ' they confidered
themfelves as forming one of three pillars on which
the great fabric of government was erected, and
that when this pillar was endangered a rcfignation
would fubjeft them to the reproach of deferting
their ftations, and betraying the facred intcrefts of
fociety intrufted with them ; that the propriety and
neceflity of the independence of judges is evident
in reafon and the nature of their office, and that
this applies more forcibly to exclude a dependence
on the legiflature, a branch of whom, in cafes of
impeachment, is itfelf a party. This was the opinion
formed on the law, by the then judges who were
fomeof the ablefl lawyers, and greatefl ftatefmen in
the Union. I believe the event was, they protefl-
cd againfl: the law as unconflitutional, refigned
their offices, had the refignations recorded, and af-
terwards were appointed circuit judges. If thit
flatement is correft, which I prefume in fubflance
it is ; can it be faid, that it affords an example
that would juftify, or in the fmallcll degree fup-
port the principles of tlie refolution .? In the cafe
of Maryland I have not had full information, there-
fore, cannot decide. In the cafe of TennefTee and
Kentucky, the didridl courts were aboliflicd ; the
jndges were not removable ftom office j but by
245
law continued as circuit court judges uith addition^
al duties and additional falary of 500 dollars each.
They neither vacated their office, nor had to take
a new oath or new commiflion ; therefore in this
cafe, there was no violation of the conftitution.
But- to fum the bufmefs up, the cafe of Virginia, is
againfl: them j the cafe of Kentucky and Tcnneflee,
not in point, and Maryland, fhould it afford, an ex-
ample, is the only and folitary one. But let us now
fuppofe for argument fake, though the fad is other-
wife, that half of the ftates in the Union palTed
fuch laws ; if thofc laws are founded on wrong
and unconftitutional ground, fliould they be a pre-
cedent for us f Surely not. If they were found-
ed in error, we ought to correal and not continue
the error. Some gentlemen have faid, although
we cannot remove the judge from the office, yet
we can remove the office from the judge. To me,
this is a paradox in legiflation. Do we mean to
aft indireftly what we would, not profefs to do
openly and direftly ? Are the gentjemen prepared
to meet this queftion in all its confequences ? Let
me fuppofe they are, and /ketch a law founded on
the confequences of their repealing ad, and exhi-
bit the cafe in its real and true light. In framing a
law the preamble fhould flate fafts, and explain the
reafons for paffing the aft. Suppofe then, we
fhould introduce inffcead of their prefent repealing
law, the following, viz. Whereas A, B, C, &c.
the fixteen federal judges appointed under the late
246
aft of Congrefs ; although they have been commif-
fioncd during good behaviour, and have difcharg-
ed the duties of ths office with integrity, ability,
and honour, yet, we the legiflature in Congrefs af-
fembled, finding their number to be more than we
judge neceffary for theadminiftration of juftice to the
good people of the United States, and deeming
the law under which they aft not the befl: poflible
fyflem that could be adopted, and thinking alfo,
that the public good requires, that the judges of
the inferior courts fhould not hold their offices dur-
in.:: good behaviour, but fliould hold them at the
will of the legiflature: Be it therefore enaftcd,
&c that the faid fixteen federal judges (hall be,
and they hereby are removed and difcharged from
their rcfpeftive oiBces as judges, and fliall not be
entitled to any compenfation or falary after the
paffing of this aft. This aft and preamble would
be in trurli only what the repealing aft in its ef-
fefts intended, and will naturally produce.
Are we prepared to vote for a law in this form,
with all the true reafons ftated on the face of the
aft, and to wifh that publicity fliould be given to it
amongfl: our conflituents, as an aft that completely
deflroys the independence of their judges ? For the
removal of the judges, I may venture to afl'crt, is
the great objeft of the repeal ; and in this confifls
the injury, from the legiflature aflTuming a power
"without giving any reafon in the aft, as in the prc-
iient cafe, ' to repeal at plcafure any law cftablilh-
247
ing an inferior court,* and by that means difmifTing
the judges from office. Party fpirit, caprice, or
perfonal diflike, would be fufficient caufc of remo-
val from office ; the judges would know this, and
perhaps fome of them foon ftel it. Let us fuppofe,
and it is even fuppofable, that a caufe came on be-
fore one of the dependent judges, between an in-
fluential member of Congrefs and a poor and ob-
fcure citizen ; would any perfon fay, that the parties
flood on equal ground, and that the fcales of juftice
hung equal between them ? It would be alraoft
beyond human nature, for this dependent judge to
be impartial, efpecially, if his falary was the only
means of fubfflence, and men of great abilities and
well fitted for the office, might be in that fituation,
for a wife man tells us, that '* the race is not al-
ways to the fwift, nor riches to men of underftand-
jng.'* So fully am I convinced, that the judges
ought to be independent of the legiflature as well
as of the executive, that if there could be a doubt
that they are not fully and completely fo, the con-
flitution ought to be amended for that exprefs
purpofe. Hitherto the judges have fuppofed them-
felves independent, and the people have acquiefced
under that belief, and ought, and do wifli their
judges to be independent. One or two obferva-
tions will prove their opinion on this point. All
the dates in the Union have in t^eir feveral confti-
tutions made their judges independent. The peo-
ple at large in every ft ate, having fent members to
248
their refpeGivc conventions, thofe conventions ha-
ving fixed the conditional durability of office in
their judges, and the people uniformly acquicfcing
under their fyfbems, afford fufficient evidence of the
public fentiment. Bcfides, in the cafe of Mr.
Chief Juftice Jay, when appointed envoy extraor-
dinary to the court of Great Britain ; was not op-
pofition to the appointment echoed from one end
of the continent to the other ? That the example
was dangerous, it put the judges under the influence
of the executive ; that although the profpeft of an
honorary appointment, within the gift of the Prefi-
dent, was remote, yet, it might influence and lefTen
their independence. If then the people were fo
alive and quick in feeling, when the caufes of alarm
were fo remote and contingent ; what will, what
raufl be their opinion, when they find out, that the
judges, from being independent by holding their
offices during good behaviour, are reduced to the
fervile fituation of holding the office at the will, at
the caprice, of a legiflature ? Is the public mind
prepared for a fhock of this kind ? Shall the legif-
lature with a ftrong arm, and by an affiimcd power,
dcftroy their independence, and thereby, their cxif-
tence, as one of the pillars of the conllitution ! In
this fituation of your judiciary will the flreams of
juflice flow equally to the habitation of the rich and
the cottage of the poor ? No man who knows hu-
man nature, will anfwcr in the affirmative.
Let us now for a moment examine the confc-
quences of giving a negative to the prefent refolu-
tton. If the refolution is not agreed to what arc
the dreadful and fatal cojjfcquences that would
follow ? I anfwer, the word that can poflibly hap-
pen is the annual payment of about thirty thoufand
dollars, the falaries of all your circuit court judges,
who do the whole bulinefs of thcfe circuits through-
out all parts of the Union. Their number will nei-
ther impede juftice, nor injure the principle or exe-
cution of it. It is not in the controverfy, the right
of the legiflature to arrange and modify all the
courts of jufllce, fo as to make them beft anfwer
the diftrihution of juftice with convenience to the
citizens j the whole judiciary can be fyftematifed
and put on the bed and moft refpe^lable footing,
without violating your conftitution. If the circuit
court judges are too numerous, fay in your revifing
law, when vacancies happen, that fuch vacancies
Ihall not be filled up, until the whole are removed,
or as many of them as it may be neceffary to remove.
Thus the evil would be continually remedying it-
felf, and at no very remote period would be totally
removed, and that without any interference with
the conftitution. ' ^-^-^^^
On the other hand, fliould the refolution be
carried j what are the evils that would refult ? Your
judges in that cafe would hold their offices at the
vi^ili of the legiflature, and be their mere creatures,
fubfervient to all their whims, caprice, and party
250
fpirit, would ceafe to be a check or barrier, bcfween
them and the people, in cafes of unconflitutional afts
and abufc of power ; it would alfo produce, agree-
able to the courfe of human nature, a fervile difpofi-
tion, which by degrees would enervate the mind, and
completely, in procefs of time, deftroy that manly in-
dependence and firmnefs, fo effential to an upright
and good judge.
If then the evils, as I have dated, would be
greater from adopting the refolution, than thofe
that would refult from pafling a negative on it ; and
we add to that balance, at lead the doubt of its be-
ing a^ainft the conftitution ; and that this doubt is
well founded, is evident, from the nearly equally di-
vided opinions of the members within the walls of
the Senate, and by the fenciments of thoufands
throughout the United States of the ableft ftatef-
men and belt citizens. Let us then, on this, at lead
precarious and doubtful ground, tread light and flep
with caution ; for to dedroy the independence of the
judges, is wounding the conditution in a vital part,
it is removing one of the main pillars that fupports
it. If we begin to infringe the conditution in one
indance, we may in another, and by flow and al-
mod imperceptible degrees, alter all the great and
leading principles of it, until at lad, the fubdance
would be gone, and the fliadow only remain ; for
like a body of water, if one drop makes its paflage,
the whole dream will foon follow.
251
Mr. CoLHouN then went at fome length into a
ftatement of the defeats which he perceived in the
judiciary, and of the amendments which he deem-
ed it expedient to make ; after which he moved,
that a committee (hould be appointed, to enquire
whether any and what amendments were neccffary
in the judiciary fyftem. This was rejefterl by the
'Vice-Prefident, as being out of order ; whereupon
Mr. Dayton moved that the word repealed in the
original motion fhould be ftruck out, and the words
re'vised and amended be inferted. On this the
Yeas and Nays were taken, and flood as follow :
Mei&s. Chipman,
Colhoun,
Dayton,
D. Fofler,
Hillhoufe,
Howard,
J. Mafon,
YEAS.
MelTrs. Morris,
Olcott,
Sheafe,
Tracy,
Wells,
White. 13.
Mcffrs. Anderfon,
Baldwin,
Breckenridge,
Brown,
Cocke,
Ellery,
T. Fofler,
Franklin,
NAYS.
MefTrs. Jackfon,
Logan,
S. T. Mafon,
Nicholas,
Stone,
Sumpter,
Wright--15.
Kk
25J
The main qucftion was carried by a fimilar divi-
sion, and Meflrs. Anderfon, Baldwin, and Brecken-
ridge, were appointed a committee to bring in a
bill.
On Friday the 22d, Mr. Anderson brought in
the bill, which was read, and a fecond reading or-
dered.
On Monday, the 25th, it was read a fecond
time, and made the order of the day for Tuefday,
the 26th, when Mr. Dayton moved, " That it
fliould be referred to a feleft committee, with iu-
ilruftions to confider and report the alterations
which may be proper in the judiciary fyftem of the
United States ; and the proviiion to be made re-
fpeEling the judges of the circuit courts, eftabliflied
by the atl of the 13th of February, 1801, in cafe
the faid al (hall be repealed." On this the Yeas
and Nays were taken, and flood as follow :
YEAS.
Mcffrs. Chipman, Meflrs. Ogden,
Dayton, Olcott,
D. Fofter, Rofs,
Hillhoufe, Shcafe,
Howard, Tracy,
J. Mafon, Wells, and
Morris, White 14.
253
NAYS.
Mcflrs. Andcrfon,
Mcflrs,
, Franklia,
Baldwin,
Jackfon,
Breckenridgc,
Logan,
Brown,
S. T. Mafon,
Cocke,'
Nicholas,
Colhoun,
Stone,
Ellery,
Sumpter, and
T. Fofter,
Wright 1 6.
On the queftion,
fliall the bill
I go to a third
reading, the Yeas and Nays were
alfo taken, and
flood as follow :
YEAS.
Mcflrs. Anderfon,
Meflrs,
. Jackfon,
Baldwin,
Logan,
Breckenridge,
S. T. Mafon,
Brown,
Nicholas,
Cocke,
Stone,
Ellery,
Sumpter, and
T. Fofter,
Wright 15.
Franklin,
NAYS.
Meflrs. Chipman,
Meflirs,
. Ogden,
Colhoun,
Olcott,
Dayton,
Rofs,
D. Fofter,
Sheafe,
Hillhoufe,
Tracy,
Howard,
Wells, and
J. Mafon,
White 15.
Morris,
254
The Houfe being equally divided, the bill was
carried to a third reading by the vote of the Vice*
Prcfident.
On Wedncfday the 27th January, after filling
the blanks,
Mr. Dayton faid, that although he had been
defeated in two attempts to arrelt the progrefs, or
turn the courfe of this bufincfs, he was not however
fo far difcouraged as to be deterred from making
one other. It would, he faid, be recollected that
all which had been afked by him and by the oppo-
fers of this meafure, in the firfl inftauce, was to at^
tempt fome modification of the law propofed to be
repealed ; but this was refufed them. It was then
propofed that both parties fhould unite their labours
with a view to revife and amend the wholejudicia*
ry fyflem ; but this alfo was denied to them Yef-
terday he had offered an amendment combining
both objects ; but it was negatived. He was en-
couraged, however, to renew it, with a little varia-
tion, even in this late f^age of the bill, becaufe he
had learned that it had not been perfeftly heard
and understood by one c^f the gentlemen who had
voted againfl it. He took leave to remind honour-
able members that thefe conciliatory motions had
been rcjtfted by a majority of one, or at mod two
only, and that of courfe the iienaie were almoft
equally divided.
Mr. D. concluded by faying, that it could not
come to good, if meafiircs admitted by fome to be
255
bold and violent, and believed by many others to be
unconftitutional, fhould be carried by a bare majo-
rity, and he trufled, therefore, that this proportion
would now fucceed.
He then moved that the bill be referred to a
feleft committee, with inftruftions to coniider and
report the alterations which may be proper in the
judiciary fyftem of the United States.
Mr. CoLHouN begged to be indulged with the
exprefCon of a few ideas, which he confidered the
more important as the bill was likely to be carried
by a cafling vote. He had before thought, and he
ftill thought, the belt way was to appoint a com-
mittee to prepare a fyflem that would accommo-
date the varying ideas of gentlemen. He had voted
yefterday againfl: the propofition made, under the
impreflion that provifion was thereby to be made
for the judges. 1 his he thought quite premature, be-
fore it was known that the aft would be repealed.
As it was at any rate doubtful whether one half
the Senate did not think the meditated repeal a
violation of the conflitutiofi, he thought, for har-
mony, it was bell to reer the bill to a feleft com-
mittee. The feffion would be two or three months
longer, and if the report made by the committee fhould
not prove agreeable, there would be time enough
to bring in another bill. I'his attempt to harmo-
nize ail parties can do no injury, while on the other
hand, a fyftem might be framed that gentlemen may
be better pleafed with than even a repeal of the a6l.
256
Mr. Nicholas faid, he flattered himfelf the
fubje6t was well underftood by the Senate. What
IS now the quefiion ? The fame that has been fo
often decided. Gentlemen in oppofition have faid,
amend, but do not repeal. He could fay that
every vote of that houfc, in every flage of the dif-
cuiTion, had faid repeal, and do not amend. He
believed the old fyflem required but little amend-
ment. It was the bed fuited to the interefts of the
United States, and of the dates. The law of the
iafl fefTion was in facl a bar to improvement. Gen-
tlemen fay why not provide for thele judges as you
have provided for a judge of the fuprcme court ?
He would reply that the lad operation was fimple
and eafy of execution; but how were we in this new
mode to get rid of the circuit judges without hav-
ing thefe courts in one part of the Union, and not
in another ?
The gentleman from New-Jerfey, haS faid, this
meafure is admitted to be bold and violent. By
whom is it admitted ? Not by me, or gentlemen
who think with me. As to a regard to the conditu-
tion, there is no man here, let his boad of federal-
ifm be what it may, that can take dronger ground
than I hold. Gentlemen profefs a great refped
for the conditution ; but our principles are not to
be evidenced by mere profefllons. They are to be
evidenced by the feries of our alions. My con-
duft, faid Mr. N. fmce the formation of the condi-
tution to this day, is known by thofc who know
257
mc, as well as the conduft of gentlemen is known
by thofe who know them. To the people I appeal.
I am not' to be alarmed by the tocfin of hoftility to
the conftitution that is fo loudly founded in our ears.
1 hopej fir, we fliall have the queftion.
The queftion was then taken on Mr. Day-
ton's motion by Yeas and Nays, as follows :
YEAS.
feffrs. Colhoun,
Ogden,
Chipman,
Olcott,
Dayton,
Rofs,
D.Fofter,
Sheafc,
Hillhoufe,
Tracy,
Howard,
Wells, and
J. Mafon,
White. I j.
Morris,
NAYS.
MeiTrs. Aiiderfon,
Jackfon,
Baldwin,
Logan,
Breckenridge,
S. T. Mafon,
Brown,
Nicholas,
Cocke,
Stone,
Ellery,
Sumpter, and
Th. Fofter,
Wright. 15.
Franklin,
There being an equal vote, the Vice-Presi-
dent declared himfelf in the affirmative, and the
reference was carried.
258
The Vice-President, faid he felt difpofcd to
accommodate gentlemen in the expreflion of their
wifties, the fincerity of which he hi.d no reafon to
queftion, to ameliorate the provifions of the bill,
that it might be rendered more acceptable to the
Senate. He did this under the impreflion that their
objeft was fincere. He fliould, however, difcounte-
nance by his vote, any attempt- if any fuch fhould
be made, that might in an indired way, go to defeat
the bill.
The bill was committed to Meflrs. Baldwin, Col-
houn, Dayton, Anderfon, and Morris.
On Monday, the ill of February, Mr. Breck-
EN RIDGE, gave notice, that he fhould, the next
day, move to difcharge the committee.
On Tuefday, the 2d February, Mr. Ross, pre-
fented a memorial of the Philadelphia bar, againfl
the repeal. I e obferved, that it was not his inten-
tion to embarrafs the motion of which notice had
been given, by moving, in the prefent (lage of the
bufmefs, a reference of the memorial to the com-
mittee now propofed to be difcharged. He offered
it, that the Senate, having before them information
of importance, from a number of refpeftable men,
belonging to both the parties which divide the
country, might give due weight to the fads which
they allege. The opinions exprefTed were unani-
mous, and flrongly enforced by a letter r.ccompany-
ing the memorial, addreffed to his colleague and
himfelf, on behalf of the bar, by MefTrs. Dallas and
259
I, M*Kean, the one the attorney of the drflrid>, and
the other the attorney-general of Pennfylvania.
Mr. Breckenridge. It will be recollected,
that I yefterday gave notice I iliould move to-day to
difcharge the feleft committee, to whom the judi-
ciary bill was laft week committed. As there ar$
fome gentlemen now in the Senate, who were not
prefect during any part of the difcuffion which that
fubjeCt met with, I deem it proper to fay a few
words as to its progrefs, and the real fituation in
which it now (lands.
Early in January, this difcuffion commenced on
a motion for the unqualified repeal of the judiciary
law of the lad feffion. After many day's debate,
and at the moment when thequeftion was about to
be put, an attempt was made to transform it into a
motion for amendment. This was negatived. The
refolution was pafl:, a bill was brought in, and car-
ried to the fecond reading, when another attempt was
made, by a motion to recommit it to a felefl: com-
mittee, This was alfo negatived. The bill was
then ordered to a third reading, and on the quef-
tion for its paffage, the fame motion was again
made for its commitment to a feledl committee,
and carried by the carting vote of the chair. la
this fituation it now refls.
During the whole difcuffion, thofe in favour of
the repeal have uniformly argued and voted againfl
any thing like amendment. 1 hey over and again
declared, that they would not confent to any amend-
LI
260
ments in the judiciary fyftcm, till that law was re-
pealed. That they confidered its cxiftence as an
infuperable bar to all amendments, and that indeed
the only great amendment they wifhed for, at this
time, was a repeal of that law ; the obnoxious ten-
dencies of which were, cancer-like, to be only cer-
tainly removed by cutting it out by the roots.
On the other hand, the gentlemen in oppofition
contended, that the law was enaded with great de-
liberation and wifdom, that it was eflential to the
due adminiftration of juflice, and to the peace of the
nation, that it requires no amendment, that it can-
not be amended, for that even admitting the courts
and judges erefted by that law were ufelefs and
burthenfome, yet Congrefs have not the power to
put down thofe courts and judges, becaufc they arc
in under the conflitution. We are therefore at ifTue
upon the fimple point, (hall this law be repealed or
not.
What then, I afk, in this ftate of things, can be
cxpefted from the labours of the committee ? Can
they, on the one hand, forward the views of thofc
who carried to a third reading, a bill to repeal a
certain aft which they confider as fundamentally
vicious, by attempting to amend that aft ? Or, on
the other hand, can they forward the views of thofe
who fay that law was the refult of experience and
wifdom, that it wants no amendment, nay, that you
cannot rnake any amendment, becaufe it is faftened
on the nation by the conflitution ? Can they, I fay.
261
xpeft to reconcile two fuch contradiftory and op-
pofite opinions opinions at variance in principle,
and not in detail. They can not ; and it is impossible
that thofe gentlemen can seriously expe^l: it.
This, Mr. Prefident, is a great conteft upon a
constitutional principle. A committee ought not, and
can not fettle principles. On the floor of this Houfe
alone, can thofe principles be fettled, which furni/h
the ground-work of legiflatioa. Details only are
proper for committees. Sir, we will not abandon
this quefliion of principle ; it shall not be fuffered
to efcape us, or be entangled in forms // must he
settled. We will have no modification of this bill.
Gentlemen must on this floor meet the plain unqua-
lified question of repeah And in order that we may
be enabled to do fo, 1 now move you that the com-
mittee to whom the bill was referred, on Wednef-
day laft, be difcharged from proceeding further
therein. The bill will then be ready for its paflage,
and the whole merits of the queftiion open for dif-
cuflTion.
Mr. Dayton. I fliould not have rifen fo foon,
if the honourable member from Kentucky had been
more correft in the information he has given to the
Senate. It mull: be recollefted, fir, very contrary
to that gentleman's ftatement, that neither the
firft:, fecond, nor third motions made on the fubjedl,
were the fame. The firfl: motion was to revife and
amend, inftead of repeal, the a61>of laft fcflion : the
fecond was for revifing the whole judiciary fyfliera.
262
and, connected with it, was a propofition to make
provifion for the judges, if they fliould be difmifTed ;
this latter part was difapproved of by one honour-
able gentleman, who afterwards voted with us, and
the motion was, in confequence, negatived : the
third differed from the fecond by the omiffion of
that claufe, fo as to be agreeable to that honourable
member, and was confequently agreed to, and a
committee accordingly appointed. To difcharge
this committee is the objeft of the prefent morion,
and I aik, Mr. Prefident, whether it is ufual, whe-
ther it is proper, whether it is even decent to make
fuch ufeof a majority fuddenly acquired by the ca-
fual acceilion of a fmgle member.* Where, or
when has an inftanceof this fort ever before occur-
red ? It is abruptly propofed to dilcharge a com-
mittee to whom was referred one of the moft im-
portant fubjefts of legiflation, whilft they are active-
ly engaged in the bufmefs committed to them,
difpo''ed to perform it with all pofTible expedition,
v^ithout their having a/ked to be difmifTed. Is it
pofTible that fo extraordinary a meafure can receive
fupport ? Will there not be found among the ad-
vocates of the original refolution, one, at leaft, to
give it a decided difapprobation ? Will not confide-
rations of delicacy towards the committee, or a fen-
Mr. Bradley ot Vermont had arrived, and he was kno\v to
be ef the: iniiufterial p^rty, so tliat tliry had a majority of one,
even had Col. Howard, who was momently expeftcd, have
been in his place.
263 *
timent of refpeft for the majority who ordered the
commitment, or at leaft a regard for appearances,
prompt honourable gentlemen to fcout fuch a propo-
iition ? Ought not the honourable mover himfelf
to be induced to withdraw it ? Were he a man of
any moderate (hare of ambition, he might furely be
contented with the agency he has already had in
this Lufinefs. Me was the author^ at leaft the oslen-
I sibk author, of the projeft he was the nwuer of
I the refolution the mouth-piece of his party and a
t tnember of the committee who prepared tlie repeal-
ing bill. Whilft he and his coadjutors, in the holy
Work of deftruftion, were confulting together upon
the death-warrant of our judiciary fyftem, and with
it, of the confiitution, their folemn deliberations
were not difturbed, no attempt was made to catch
at a majority for the purpofc of difcharging that
committee, Mltho* there were times when a majority
might have been found unfriendly to it. On the
contrary, they were fuffered to take their own
time to mature and report their bill. The difcuf-
fion of its merits has been too ample and too recent
to be forgotten. It will be recollefted that it was
fuggcfted, as our laft hope, that fomcthing further
ought to be attempted, and that it was more than
poflible that fome expedient might be propofed, or
fome fyftem devifed, which would be acceptable to
a majority, and thus render a decifion of the confti-
tutional queftion unneceflary. It was further inti-
mated that the aft itfelf afforded fuch a fcaifolding
264
as wouH be ufeful to enable us to build up a more
perfect flrufture of jurifprudencc ; but, if we began
by dcmolifhing it, inltead of deriving aid from the
materials of which it was compofed, it would be-
come a heap of rubbifli, and fatally obflruft our
progrefs. Thefe fuggeftions were fo much liflened
to, and approved of, as to produce the appointment
of a committee, with extenfive powers *' to revifc
aud amend the whole judiciary fyflem.'*
It was indeed very unfortunate, that the gen-
tleman from Kentucky, the honourable mover of
this proportion, had not been chofen on that com-
mittee. I well remember the anxiety fhewn by
the friends of that honourable member on that oc-
cafion, and his own great mortification at the dif-
appointment. I am very forry it has carried him to
fuch an excefs, and led him to make the extravagant
propofition on your table. And yet, Mr. Prefident,
one would have thought, that without this, he had
already rendered himfelf fufficiently prominent
and confpicuous. He has been the firil and chief
ai:or in thefe fcenes of legiflative tragedy, but he
feems to think that the goodly work of deflrulion
cannot go on with fuflicient certainty and rapidity,
if his agency be difpenfcd with in any ftage of the
bufmefs, or his deftroying arm be arrcfled even for
a moment.
I trufl: fir, that that gentleman's motion for dif-
charging the committee will be rejected, and that
wc fhall not find in its adoption a prafticai com-
265
ment on the conciliatory language of the Prefldcnt,
which had been fo often echoed by gentlemen on
that fide of the houfe.
Mr. Ross. I have long had a feat in this
houfe, and this is the firft time 1 ever heard
a motion made to difcharge a committee, un-
lefs by a member of the committee itfelf. And
what is the reafon afligned ? Difference of opi-
nion on principle. With whom does this differ-
ence exift ? Surely not with one political par-
ty in this country, as difllnguifhed from another,
for we have jufl heard the opinions of gentlemen of
high talents, and the firm adherents to the fame po-
litics with thofe of the honourable gentleman from
Kentucky, that the fyflem is fufceptible of amend-
ment. Nay, that the law which he wiflies to re-
peal, is, in effeft, a very important amendment of
the old fyflem. Shall we then fay, that it is not
fufceptible of amendment ? Are gentlemen pre-
pared to decide inflantaneoufly, without information
or refle(ftion, againft opinions fo refpe^lable ? Sure-
ly, this is not legiflating with the cuftomary cau-
tion.
Are gentlemen prepared to fay there is no mid-
dle ground ? The wifeft men deliberate the long-
efl. Why not wait till the committee report ?
Why not hear what they offer ? If it be bad, re-
ject it, but firfl hear. What appearance will this
hafly procedure have ? One day the Senate are
equally divided^ and by a caution and moderation
266
which will not foon be forgotten, the bill is refer-
red Shortly aftrrwards before the committee
can poflibly prepare a report, although opinion is
ftrengthening on the fide of thofe who voted for
a commitment, yet all modification, and all chance
of modification, is rejeftcd. The fubjel is to be
brought forward all at once, in general terms, to
a hafty decifion. I cannot confider this as wife
1 hope the houfe will proceed with caution. I
hope they will not inconfiderately advance, by ra-
pid fteps, to a point that may be attended with
dangerous confequences.
Mr. Breckenridge. It is fald that what I
have done (liould fatisfy a moderate man, and that
my ambition fliould be fatiated. But what ambi-
tion can / feel ? What profpe^ls of ambition lie
before me, in propofing the repeal of this law. In-
flead of opening profpe^ls of office to ;;/ed, that the bufi-
nefs of the national courts has dccreafed, and that
the fame neceffity for the new eflablifliment as
formerly, does not now exill.
Permit me fir, to obferve, that while our popu-
lation is encr;a{ing beyond all former example:
while our treaties are growing in number and our
ftatute book is enlarging, it is a neceflary confe-
qence that the bufmcfs of our courts muft encreafe ;
and if bufinefs did not encreafe under the old fyflera,
it is a concluiive proof that that fyftem was radically
wrong. I admit, that it is very dliEcult to make a
provifion exactly commenfurate with the public
wants ; but it is certainly more fafe to have fuch
provifion too broad than too narrow ; and as the
fyftem must be uniform, it muft be fo extenfive as to
afford a fpeedy and convenient adminiftration of
juftice to fuch portions of the country, as may mofl
require it.
' he refult, Mr. Prefident of this comparifon,
unde* ail iheie circumftances, clcar:y is, according
to my judgment, that the fyftem has luch advanta-
ge's over the old, as well in ics greater propriety as
in its perfed pra6ticability and fuperior convenience.
504
as will, by many times, outweigh that trifling addi-
tional expenfe which ought never to have been fct
up againft it.
But fir, the gentlemen on the other fide of the
room, appear to me, in a great meafurc to have
given up this point, and feem ardent to rufli, eve
without a neceffity, to give fi^ch a conftrudion to
the conftitution, as will render xhtjudiciary entirely
dependent on the legijlature ; this opens a great con-
ftitutional point, to the difcuillon of which I ap-
proach with trembling.
It appears to me, fir, that the three pillars,
namely, the legiilative, executive and judicial, upon
which our goverment (lands, are entirely independent
of each other that the funftionaries in thefe three
great departments are irresponsible to each other,
and that they equally derive their official being and
existence immediately from the conftitution itfelf, and
pot from any laws, which may from time to time be-
come necelTary to bring thefe great departments into
complete operation.
I fay, fir, they are independent of each other,
bccaufe, there is no dependence or connexion be-
tween them, created by the conftitution the firft
article, whereof, fcftion i and 2, provides for the
legiflative, the manner in which they fhall be chofen,
and the term of their offices. So, article i, feftion
Jl, provides in the like manner for the executive j
and article 3, fe6tion i, makes fimilar provifion for
the judicial. Now, fir, the fages who framed this
305
onftitution would not have made thefe branches
thus co-equal, co-ordinate, and independent of each
other, if they had intended that either one might, by
a law, be rendered dependent on either of the others ;
they perfectly knew, that it is as natural in politics,
as attrai>ion is in phyfics, that the greater body mud
eventually draw within its vortex every lelTer one,
unlefs balanced and counterafted; they therefore,
inflead of creating any dependence of any one
branch upon any one of the others, which they
would have done if they had fo intended, have ex-
prefsly provided that the executive fhould continue
in office ^ox four years ^ fenators for six years ^ repre-
fentatives for two years, and judges during good
behaviour. How can it be faid that one co-ordi-
nate branch can abridge the time of the political
cxiftence of either one of the others and who can
fhew that if the legiflature can do this in regard to.
one of the other branches, why it may not do the
fame in regard to the other.
It has been obferved, that independent judges
for life, may become dangerous, by having a com-
plete control over your laws. I anfwer that we arc
here, not making hut acting under the conftitution,
which has created this independence, and we are
bound not to impair it. But, fir, I believe that
this independence is in perfeft conformity with the
genius of the American people, and that it is dear
to them.
306
Our forefathers came from a land where this in-
dependence exifted in the then greatefl: extent in
the known world. Thry boafted of it with pride
to their children, as the highefl birth-right of a free
citizen. They complained incelTanily that ben it
was not fo ; that their judges were not indepen-
dent, and this very reafon, m our declaration of in-
dependence, is afSgned as one of the caufes of our
reparation from our mother country.
All the /^merican conftitutions, in conformity
to this idea, have endeavoured to preferve the fame
independence of judges, by the mod exprefs terms,
and the inflrument now under confideration, ufes
the mod unequivocal language that human wifdom
can di^ate, to fecure ( as far as can be secured by
paper") the independence of the judiciary. Suffer
me further to obferve^ that our government is a
government of checks that the power given by
the conftitution to the legiflature is not general but
special, that it is not omnipotent but limited and
that therefore, necessarily^ a check againfl it muft
fomewhere exift. Suppofe thelegiflaturefhould pafs
bills of attainder, or an unconditutional tax, where
can anopprcffed citizen any where find proteftion,
but in a court of jurtice, firmly denying to carry
into execution an unconflitutional law ; what power
clfe can proteft the flate fovereigntibs, (bould the
other branches combine againft them ? And letmc
afk, where can fuch power be more fafdy lodged,
than in that branch of the government, which
307
holding nelthef thefword nor thepurfe of the natlort,
cannot have either the ambition or the means of
fubvcrting, to their own benefit, the provifions of
our conftitution ? I contend, fir, that by our con-
ititution, judges are not only indcpendmt bat irre-
sponsible^ except in the mode therein pbinftbd^ but,
which is by impeachment, and if liable t6 be piit
down in any other way, they will become depen-
dent and fervile creatures ; if the propofed law ob-
tains, they will be put down, without iTriJDeachmcnt,
without trial, and for no reafon whatever, except it
be, either to save the smallest part of a mis'drahiefar'
thing-, or on account of the great sin of hdmn^been ap-
pointed under the former administration. I hope,
fir, that fuch an unworthy reafon, or fuch vindidive
paflions will never operate to produce a meafure
which will fhake and diminilh the confidence which
confiderate men- have hitherto had in thit fecurity,
which they thought they poffefTcd undct thiis con-
ftitution.
The argument, moft worthy of notice, from the
other fide of the Houfe, appears to me to be that
which is founded on an idea, that the judges about
to be put down, were not created by the conftitu-
tion, as it is faid the judges of the fupreme courts
were, but by the legiflature, and that, as the crea-
ture cannot be out of the reach of the creator, fo
thefe judges muft be dependent on the legiflature.
Firft, I anfwcr, that no found diftinftion can be
made between the tenures by which judges of the
Rr
308
fupremc and judges of the inferior courts hold their
offices, according to the conftitution, and it having
been admitted in argument, that the judges of the
fuprerae court are not thus Hable to be put down,
it follows, that judges of the inferior courts are not
thusr liable ; but, fir, a difl:in^ion has been aimed
at ; it has been faid, that the word shall has been
ufed, in reference to the one, and the word may in
reference to the other ; but I believe the word
jhallk equally applicable to both cafes. Take the
words ' the judicial power fhall be vefted in one fu-
preme court, and in fuch inferior courts as Congrefs
may frotn time to time eftablifh.' Can any one
doubt that the word shall is not equally imperative
in the cafes of both fpecies of courts, and that the
evident meaning of the conftitution is, that Con-
grefs fliall appoint as well inferior court judges, as
fupreme court judges, and that the word may is
only introduced to take away, in regard to the in-
ferior courts, that limitation which is made in ref-
pcft to the fuprerae court ; the language then is,
there J^^2// be but one fupreme court, although there
fliall be as fiiany inferior courts as Congrefs may ef-
tablilh. But this diftinftion, in regard to the te-
nure by which thefe refpedive judges hold their
offices, altogether vanilhes from my mind, when I
read in the conftitution, that the judges, both of
the fupreme and inferior courts fhall hold their of-
fices during good behaviour ? The wit of man could
not have invented more explicit terms. But, it is
309
faid, that a law was neceflliry to bring into official
exiftence, the judges of inferior courts. I anfwer,
a law was equally neceflary to bring into official
cxiftencc, judges of the fupreme court, and a law
for the purpofe was aftually paffed : How then
can it be faid, the one corps is created by the con-
ftltution and the other by a law ? The truth is,. fir,
that no fuch diflinftion cxifts as the one which has
beenfet up, and if the prefent law paifes, it will be
an irrefiftable precedent, to any future legiflature
who may be difpofed by a law to put down the fu-
preme court judges, and no ingenuity will be able
to point out any folid diftincHiion between the two
cafes.
Again, Mr. Prefident, it is evident, that the
neceffity of having made a law, in order to give of-
jScial being to thefe judges, does not make them de-
pendent on the legiflature, or prove that they do not
hold their offices under the confl;itution ; becaufe
if fuch reafoning were good, it would equally prove,
that the Prefident, Vice-Prcfident, Senators, and
Reprefentatives, do not hold their refpeftive offices
under the conftitution ; but under thofe refpe^live
^ laws which have been necefl!arily paffed to bring
them into exiftence j fuch as the laws for the ap-
pointment of eleftors, for eledion of Senators and
Reprefentatives, and for determining the number
of Reprefentatives, by fixing the ratio t Will any
one pretend, that by repealing the refpe6live laws
under which ele- I
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