TUESDAY, January 12

_Judiciary System._

The Senate resumed the consideration of the motion made on the 6th

instant, "That the act of Congress passed on the 13th day of February,

1801, entitled 'An act to provide for the more convenient organization

of the Courts of the United States,' ought to be repealed."

Mr. JACKSON, of Georgia.--I rise with an impression of awe on the

present question; for we must tread on constitutional ground, which

should not be lightly touched on, nor too hastily decided. Every step we

take ought to be well examined, and our minds convinced before we give

that vote which cannot be recalled, and which will fix a principle on

Legislative construction, which, perhaps, will prevail as long as we

remain a nation.

In the early stage of this discussion, I had almost determined to say

nothing, and am at present determined not to say much; but a

justification of the vote I shall give, has impelled me to offer my

reasons for it to the State I represent; and I have made up my mind,

decidedly, to vote for the resolution before you, if I cannot be

otherwise convinced.

We have been asked, if we are afraid of having an army of judges? For

myself, I am more afraid of an army of judges, under the patronage of

the President, than of an army of soldiers. The former can do us more

harm. They may deprive us of our liberties, if attached to the

Executive, from their decisions; and from the tenure of office contended

for, we cannot remove them; while the soldier, however he may act, is

enlisted, or if not enlisted, only subsisted for two years; whilst the

judge is enlisted for life, for his salary cannot be taken from him.

[See 12th division, 8th Section, 1st Art. Constitution.] Sir, it is said

these evils will not happen. But what security have we for the truth of

the declaration? Have we not seen sedition laws? Have we not heard

judges crying out through the land sedition! and asking those whose duty

it was to inquire, is there no sedition here? It is true, the sedition

law had expired with the last Administration, and he trusted it would

not exist, or at least be acted on, under the virtuous Jefferson. But

hereafter, if it should exist, your judges, under the cry of sedition

and political heresy, may place half your citizens in irons. I thank

God, that no such law now exists, or is likely to exist. I thank God,

that we are not now under the influence of an intolerant clergy, as is

evident from their abuse of the President; and that we are not under

dread of the patronage of judges, is manifest, from their attack on the

Secretary of State. And I trust, that we shall long keep this patronage

off, by not sanctioning the religious persecution of the clergy on the

one hand, nor the political violence of the judges on the other.

But, upon the principles of gentlemen, the law which creates a judge

cannot be touched. The moment it is passed, it exists 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 necessary to return

to the creator, and to inquire what this creator is. My principle is,

that the creator is the people themselves; that very people of the

United States whom the gentleman from New York had declared ourselves

to be the guardians of, to save the people themselves from their

greatest enemies; and to save whom from destroying themselves he had

invoked this House. Good God! is it possible that I have heard such a

sentiment in this body? Rather should I have expected to have heard it

sounded from the despots of Turkey, or the deserts of Siberia, than to

have heard it uttered by an enlightened legislator of a free country,

and on this floor.

I am clearly, therefore, of opinion, that if the power to alter the

Judiciary system vests not here, it vests nowhere. It follows, from the

ideas of gentlemen, that we must submit to all the evils of the present

system, though it should exhibit all the horrors of the Inquisition.

But, said Mr. J., gentlemen say the United States embrace a vast extent

of territory, from fifteen to seventeen thousand miles in length. What

is the inevitable deduction to be drawn from this fact? Why, that a

system which is to apply to this extent of country, embracing different

laws and different habits, will require frequent alterations: whereas,

if we are tied down to a system of inferior tribunals once formed, we

cannot even touch the plan of the Judicial system of the little District

of Columbia. Nor can we touch the inferior jurisdictions in the

North-western Territory, nor in the Mississippi Territory, in both of

which the systems were acknowledged to be adapted only to present

circumstances, and in the last of which the rights of Georgia were

implicated. It follows, that whatever these rights may be, the system is

sacred; and, as to the Mississippi Territory, if grounded on this

doctrine, notwithstanding the claim of Georgia, her jurisdiction is

totally lost. To revert to the sedition law. If the doctrine supported

now were true, then, had the sedition law been incorporated as a system

by itself, an inferior tribunal, and officers been attached to it, would

it have been perpetually tacked to the constitution? That law under

which so many of our citizens have been imprisoned for writings and

speakings; and one, among others, for wishing that the wadding of a gun

had been lodged in a certain Presidential part.

The gentleman had dwelt on the inconveniences and evils of the old

system, and had particularly condemned that part of it, which, as he

termed it, had converted the judges into post-boys. But I will appeal to

the gentleman, if in England, where so much more business is done, there

are more than twelve judges, and whether those judges do not ride the

circuit? And why shall our judges not ride the circuits? Shall we have

six judges sitting here to decide cases which require a knowledge of the

laws, the morals, the habits, the state of the property of the several

States? Would not this knowledge be much better obtained by their riding

the circuits, and in the States themselves, making themselves acquainted

with whatever relates to them, and the cases of appeals to come before

them? It has been remarked by a celebrated writer on the English

Constitution, that one of the greatest political evils that could befall

a people, was the existence of large judiciary bodies. To illustrate his

ideas, he had instanced the Parliaments of France. If the spirit which

last session gave existence to sixteen new judges continued, who could

say by what number they would be limited? They might indeed soon become,

what they had been likened to, an army of judges.

I do not wish to be severe in my remarks on the conduct of the late

Administration. I admire the private character of Mr. Adams. But I do

believe the succession of his political acts tended ultimately to

accumulate in, and attach all powers to, a particular person or favorite

family.

If I wished to bestow on Mr. Jefferson this mass of patronage, which I

contend this horde of officers bestows, I should be in favor of the bill

that it is now moved to repeal; but, as a political person, I am no more

for Thomas Jefferson than for John Adams. When he acts, according to my

opinion, right, I will support him; when wrong, oppose him; and I trust

a majority on this floor will act in the same way.

Mr. TRACY, of Connecticut.--Feeble as I am, I have thought it my duty to

offer my sentiments on this subject. Owing to severity of indisposition,

I have not been in my place, nor have I heard any of the discussion.

This circumstance will be my apology, if, in the remarks I shall make,

repetitions shall occur on the one hand, and apparent inattention to

arguments on the other.

Having been a member of this Government during several years, and being

impressed with the difficulties attending the formation of a judiciary

system, I have thought proper to give a concise history of Legislative

proceedings on this important subject. Permit me to say, sir, that the

first institution of such a system must be an experiment. It is

impossible to ascertain, until tried, the effects of a system

co-extensive with the vast territory of the United States, and which

ought to be adapted to the different laws and habits of the different

States.

Soon after the first law was enacted, as early as the year 1793, and I

believe sooner, complaints were made of the system of circuit courts.

The Union then being divided into three circuits, and two of the six

judges were obliged to attend each court, if one judge failed, all the

business of course was continued to the next term. Judges complained of

the distance they had to travel, and suitors and lawyers complained of

delays. In 1793, if my memory is correct, the law passed allowing one

judge to attend with the district judge in each district, with some

other modifications not important in the present view of the subject.

If, by reason of distance, badness of roads, sickness, or any other

accident, this one judge failed of attendance, or if he and the district

judge differed on any point, a delay was occasioned. If the same judge

attended the same circuit at the next term, another delay, and so on,

till experience taught us, that some alteration in the system was

requisite. It will be recollected, that the judges had to travel over

this extensive country twice in each year, and to encounter the extremes

of both heat and cold. Of this they complained; but this was not all;

the business was not done.

Although this subject had been recommended before, and committees had

contemplated a revision and alteration of the system, I do not remember

that a bill had ever been presented to either House of Congress until

1799. In that session, a bill was reported similar in its features to

the act which passed last session. It might have been acted upon in the

House of Representatives; of this, however, I am not confident; but I

recollect it was printed, and the members of both Houses had it before

them; and at the last session, with some alterations and amendments, it

was enacted into a law. I believe all parties wished for a revision and

amendment of the system, in respect to circuit courts; the difference of

opinion was principally this: some supposed an increase of the Judges of

the Supreme Court to such a number as would render the duties of the

circuit practicable for them, and provide for the completion of

business, would be the best amendment; the others thought the law, as it

passed, was preferable.

I acknowledge, that in deliberating upon this subject, we always assumed

the principle, that the establishment of courts was important to protect

the rights of the people; we did not fear an army of judges, as has been

hinted by the gentleman last up, (Mr. JACKSON.) In this opinion we might

be mistaken, but we were honest in our professions. Although some

believed, that more of the business of the United States might be

confided to the State courts; yet it is not within my recollection, that

the question was considered, in any measure; a party question. I am

confident, that at the session of 1799, and for a long time before that,

the friends of this law, which eventually passed last winter, could not,

nor did not, contemplate any change of administration. A revision of the

system was long a subject of deliberation; we believed an increase of

circuit judges, to the number requisite to perform the duties, would be

an inconvenient increase of the Supreme Court; and though it was

desirable for the Judges of the Supreme Court to see the people and be

seen of them, yet the preference was given to the system now proposed to

be repealed. We supposed it would be an evil to increase the number of

Judges of the Supreme Court to thirteen, fifteen, or seventeen. A court

which is to act together, should not be numerous; on this subject, all

men have agreed; here may be danger of an "army of judges," as the

gentleman says; for although in Great Britain the twelve judges are

sometimes called to give an opinion, yet no man will feel equal

confidence in a tribunal of judges for the business of a court,

consisting of many as of few; from three to five, the good sense and

experience of all nations, has declared to be about the proper number;

and we thought it conducive to the general good, to establish tribunals

in such manner as to carry justice to the door of every man.

Is this system so very vicious, that it deserves nothing but abhorrence

and destruction? It costs us a little more than thirty thousand dollars,

and by it the number of circuit judges is increased to sixteen; and by

it likewise is contemplated reducing the number of supreme judges to

five, when it can constitutionally be done. Is the expense an object,

when by that expense, we extend the jurisdiction of a court over this

vastly extensive, growing country, and carry law and protection to every

man? This country is in a singular condition; a great tract of unsettled

lands is peopling with rapidity, and numerous emigrations increase our

population far beyond its natural increase; is it not of importance that

courts should be located among them, early, to correct the restless

spirit which is frequent in new and scattered settlements? And are not

the emigrations composed of such as require the prompt assistance of the

law, to preserve among them regularity? Punishment, to us, and to all

good men, should be a strange work; but to prevent crimes, is the work

of a God. I speak to gentlemen, who have many of them graced the judge's

bench, and adorned the professional robe they have worn, and am

therefore not obliged to be particular that I may be understood; a word

to the wise will be sufficient. A judiciary, in a national point of

view, is absolutely necessary, and an extension of it to every national

purpose, is equally necessary. To depend upon State courts, not under

obligations, nor amenable to you, besides having as much business

allotted to them by the respective States as they can accomplish, and

depending, upon them, and not on us, for existence--will require only to

be mentioned, to be exploded. Locating your judges in various parts of

the country, by them promulgating the national laws, which it is well

known has been a subject of great difficulty, and giving them daily

opportunity of mixing with people, not well disposed to order and law;

may prevent disorders and insurrections, and save millions of expense,

which pecuniary saving will be the least of the important events arising

from such a system.

But there is another objection to the repeal of the judiciary law, which

in my mind is conclusive: I mean the letter and spirit of the

constitution.

In the formation of every Government, in which the people have a share

in its administration, some established and indisputable principles must

be adopted. In our Government, the formation of a Legislative,

Executive, and Judiciary power, is one of the incontrovertible

principles; and that each should be independent of the other, so far as

human frailty will permit, is equally incontrovertible. Will it be

expected, that I should quote Sidney, De Lolme, Montesquieu, and a host

of elementary writers, to prove this assertion? There is, probably, no

conflict of opinion upon this subject. When we look into our

constitution of Government, we shall find, in every part of it, a close

and undeviating attention to this principle. Our particular form is

singular in its requirements; that full force and operation be given to

this all-important principle. Our powers are limited, many acts of

sovereignty are prohibited to the National Government, and retained by

the States; and many restraints are imposed upon State sovereignty. If

either, by accident or design, should exceed its powers, there is the

utmost necessity that some timely checks, equal to every exigency,

should be interposed. The Judiciary is established by the constitution

for that valuable purpose.

In the British Government, the Legislature is omnipotent to every

legislative effect, and is a perpetual convention for almost every

constitutional purpose. Hence it is easy to discern the different parts

which must be assigned to the Judiciary in the two kinds of government.

In England, the Executive has the most extensive powers; the sword or

the military force; the right of making war, and in effect the command

of all the wealth of the nation, with an unqualified veto to every

legislative act. It is, therefore, rational for that nation to preserve

their judiciary completely independent of their Sovereign. In the United

States, the caution must be applied to the existing danger; the

Judiciary are to be a check on the Executive, but most emphatically to

the Legislature of the Union, and those of the several States. What

security is there to an individual, if the Legislature of the Union, or

any particular State, should pass a law, making any of his transactions

criminal which took place anterior to the date of the law? None in the

world, but by an appeal to the Judiciary of the United States, where he

will obtain a decision that the law itself is unconstitutional and void,

or by a resort to revolutionary principles, and exciting a civil war.

With a view to those principles, and knowing that the framers of our

constitution were fully possessed of them, let us examine the instrument

itself. Article third, section first: "The judicial power of the United

States shall be vested in one Supreme Court, and in such inferior courts

as the Congress may, from time to time, ordain and establish. The

judges, both of the supreme and inferior courts, shall hold their

offices during good behavior; and shall, at stated times, receive for

their services a compensation, which shall not be diminished during

their continuance in office." Are there words in the English language

more explicit? Is there any condition annexed to the judge's tenure of

office, other than good behavior? Of whom shall your judges be

independent? We are led to an erroneous decision on this, as well as

many other governmental subjects, by constantly recurring to Great

Britain. That their courts should be independent of their Sovereign, is

an important object; he is the fountain of honor and power, and can do

no wrong; our President, at least for several years past, has been

considered as the fountain of dishonor and weakness, and if there was

any maxim upon the subject, it was that he could do no right. Of course

the great object of the independence of the Judiciary must here have

reference not only to our Executive, but our Legislature. The

Legislature with us is the fountain of power. No person will say that

the Judges of the Supreme Court can be removed, unless by impeachment

and conviction of misbehavior; but the judges of the inferior courts, as

soon as ordained and established, are placed upon precisely the same

grounds of independence with the Judges of the Supreme Court. Congress

may take their own time to ordain and establish, but the instant that is

done, all the rights of independence attach to them.

If this reasoning is correct, can you repeal a law establishing an

inferior court, under the constitution? Will it be said, that although

you cannot remove the judge from office, yet you can remove his office

from him? Is murder prohibited, and may you shut a man up, and deprive

him of sustenance, till he dies, and this not be denominated murder? The

danger in our Government is, and always will be, that the Legislative

body will become restive, and, perhaps, unintentionally break down the

barriers of our constitution. It is incidental to man, and a part of our

imperfections, to believe that power may be safely lodged in our hands.

We have the wealth of the nation at command, and are invested with

almost irresistible strength; the Judiciary has neither force nor wealth

to protect itself. That we can, with propriety, modify our judiciary

system, so that we always leave the Judges independent, is a correct and

reasonable position; but if we can, by repealing a law, remove them,

they are in the worst state of dependence.

WEDNESDAY, January 13.

_The Judiciary System._

The Senate resumed the consideration of the motion made on the 6th inst.

that the act of Congress passed on the 13th day of February, 1801,

entitled "An act to provide for the more convenient organization of the

Courts of the United States," ought to be repealed.

Mr. MASON, of Virginia.--I feel some degree of embarrassment in offering

my sentiments on a subject so fully and so ably discussed. I believe

that the ground taken by my friend from Kentucky has not been shaken by

any arguments urged in opposition to the resolution on the table. Yet as

some observations have been made, calculated to excite sensibility, not

here, but abroad; as they appear to have been made with a view to that

end; and as an alarm has been attempted to be excited on constitutional

ground, I think the observations ought not to go unnoticed.

I agree with gentlemen, that it is important, in a well-regulated

government, that the judicial department should be independent. But I

have never been among those who have carried this idea to the extent

which seems at this day to be fashionable. Though of opinion that each

department ought to discharge its proper duties free from the fear of

the others, yet I have never believed that they ought to be independent

of the nation itself. Much less have I believed it proper, or that our

constitution authorizes our courts of justice to control the other

departments of the Government.

All the departments of a popular government must depend, in some degree,

on popular opinion. None can exist without the affections of the people,

and if either be placed in such a situation as to be independent of the

nation, it will soon lose that affection which is essential to its

durable existence.

Without, however, going into an inquiry of what kind of organization is

most fit for our tribunals; without inquiring into the fitness of making

the judges independent for life, I am willing to enter into a

consideration, not of what ought to be, but of what is. Whatever opinion

I may individually entertain of the provisions of the constitution

relative to the Judiciary, sitting here under that constitution, I am

bound to observe it as the charter under which we are assembled.

When I view the provisions of the constitution on this subject, I

observe a clear distinction between the Supreme Court and other courts.

I am sensible that when we come to make verbal criticisms, any gentleman

of a sportive imagination may amuse our fancies by a play upon words.

But this is not the way to get rid of a genuine construction of the

constitution. With regard to the institution of the Supreme Court, the

words are imperative; while, with regard to inferior tribunals, they are

discretionary. The first shall, the last may be established. And surely

we are to infer from the wise sages that formed that constitution, that

nothing was introduced into it in vain. Not only sentences, but words,

and even points, elucidate its meaning. When, therefore, the

constitution, using this language, says a Supreme Court shall be

established, are we not justified in considering it as of constitutional

creation? And on the other hand, from the language applied to inferior

courts, are we not justified in considering their establishment as

dependent upon the Legislature, who may, from time to time, ordain them,

as the public good requires? Can any other meaning be applied to the

words "from time to time?" And nothing can be more important on this

subject than that the Legislature should have power, from time to time,

to create, to annul, or to modify the courts, as the public good may

require, not merely to-day, but for ever; and whenever a change of

circumstances may suggest the propriety of a different organization. On

this point, there is great force in the remark of the gentleman from

Georgia, that among the enumerated powers given to Congress, while there

is no mention made of the Supreme Court, the power of establishing

inferior courts is expressly given. Why this difference, but that the

Supreme Court was considered by the framers of the constitution, as

established by the constitution, while they considered the inferior

courts as dependent upon the will of the Legislature.

If the arguments now urged be correct, that a court once established

cannot be vacated, we are led into the greatest absurdities. Congress

might deem it expedient to establish a court for particular purposes,

limited as to its objects or duration. For instance: the United States

has taken possession of the Mississippi Territory, rightfully or not, I

will not pretend to say. This territory has been heretofore in the hands

of various masters, viz: France, England, Spain, and Georgia; and it is

now possessed by the United States. All these Governments, except the

United States, made certain grants of lands in the territory, and

certain settlers spread their conflicting patents over the country.

These different titles will open a wide field for litigation, which will

require able tribunals to decide upon. Suppose, then, Congress should

establish special tribunals to continue for three, four, or five years,

to settle these claims. Judges would be appointed. They would be the

judges of an inferior court. If the construction of the constitution now

contended for be established, what would the judges say, when the period

for which they were appointed expired? Would they not say, we belong to

inferior courts? Would they not laugh at you when you told them their

term of office was out? Would they not say, in the language of the

gentleman from New York, though the law that creates us is temporary, we

are in by the constitution? Have we not heard this doctrine supported in

the memorable case of the mandamus, lately before the Supreme Court? Was

it not there said that, though the law had a right to establish the

office of a justice of the peace, yet it had not a right to abridge its

duration to five years; that it was right in making the justices, but

unconstitutional in limiting their periods of office; that, being a

judicial officer, he had a right to hold his office during life--or,

what is the same thing--during good behavior, in despite of the law

which created him, and, in the very act of creation, limiting his

official life to five years.

I may notice another case, more likely to happen, to show the absurdity

of this construction. Congress have assumed jurisdiction over the

Mississippi Territory, and have established a court, composed of three

judges, which court is as much an inferior court as the circuit or

district courts. Of this jurisdiction Georgia denies the validity. The

contest is in a train of settlement. Suppose it shall turn out that the

United States are convinced of the injustice of their claim, relinquish

it, and restore the territory to Georgia, what becomes of the judges?

Their offices, their duties, are gone! Yet they will tell you, we are

vested with certain constitutional rights, of which you cannot deprive

us. It is true the territory is no longer yours. You have no

jurisdiction, we have no power, yet we are judges by the constitution.

We hold our offices during good behavior, and we will behave well as

long as you will let us. Is not this a strange situation? You have

judges in a territory over which you have no jurisdiction; and you have

officers which are perfect sinecures, pensioners for life. Such an

absurdity I am sure the constitution never meant to justify. It is an

absurdity equally repugnant to the letter and genius of the

constitution.

But it would seem that the argument urged on this occasion, and the

general course of our legislation, had been grounded more on the

convenience and emoluments of those appointed to office, than on grounds

of public utility. First, we appointed six judges of the Supreme Court,

divided the United States into three circuits, two judges to ride each

circuit, in which, with the district judge, to form a court. The law

fixed the duties and the compensation, and gentlemen of the first

character were ready to accept the places. The salaries indeed had been

thought high; in some parts of the Union they were thought enormous. But

a little time passed before they complained of the hardships of their

duties; and the law was altered, not so much for the public good as for

their personal convenience. Where two judges were required to hold a

court, one was now declared sufficient. Thus you continued their full

salaries, while you lopped off half their duties. Shortly after you

assigned them, under the pension law, inconsiderable duties; and they

refused to perform them. Thus, while they showed themselves ready to

abate of their duties, they adhered to their salaries. Next came the law

of last session, which takes away all their duties. It leaves them

simply a court of appeals. And what have they got to do? To try ten

suits; for such is the number now on their docket, as appears from a

certificate just put into my hands; and the average number on their

docket amounts to from eight to ten. Thus, for the trial of the immense

number of eight or ten suits, you have six judges, one with a salary of

four thousand, and five others with salaries of three thousand five

hundred dollars each.

I fear, said Mr. M., that if you take away from these judges that which

they ought officially to do, they will be induced, from the want of

employment, to do that which they ought not to do; they may do harm.

They may be induced, perhaps, to set about that work gentlemen seem so

fond of. They may, as gentlemen have told us, hold the constitution in

one hand, and the law in the other, and say to the departments of

Government, so far you shall go and no farther. This independence of the

Judiciary, so much desired, will, I fear, sir, if encouraged or

tolerated, soon become something like supremacy. They will, indeed, form

the main pillar of this goodly fabric; they will soon become the only

remaining pillar, and they will presently become so strong as to crush

and absorb all the others into their solid mass.

We, have been told, that no State in the Union has presumed to touch the

Judiciary establishment, except the State of Maryland. I will not answer

for others; but, with respect to Virginia, I will answer that she has

touched it. Her constitutional provision for the independence of the

judges is nearly similar to that of the United States, and yet she has

established, modified, and entirely put down particular departments of

her system.

Notwithstanding the remarks of gentlemen, I am inclined to think these

ideas of the extreme independence of the judges, and the limited powers

of the Legislature, are not very old, but that they are of modern

origin, and have grown up since the last session of Congress. For, in

the law passed last session, that very law which it is now proposed to

repeal, is to be found a practical exposition in direct hostility with

the principle now contended for, which does not betray that sacred

regard for the office of a judge, that is, on this occasion, professed:

in that very law will be found a clause which abolishes two district

courts. The words of the twenty-fourth section say, expressly, "the

district courts of Kentucky and Tennessee shall be and hereby are

abolished." Will gentlemen tell this House how this express provision

came into the act of the last session; and will they say, that though

they voted for this law, yet no power exists in the Legislature to

abolish a court? It is true, that it has been said that, though you put

down two district courts, you promoted the officers, by increasing their

salaries and making them judges of the circuit courts; but the fact is,

you have abolished their offices; they are judges no longer of the

districts of Kentucky and Tennessee; and they are to every purpose,

whatever may be their name, in reality circuit judges. Though you have

not lessened their salaries, you have deprived them of their offices.

However, therefore, gentlemen may calculate as to the benefit or injury

done these two judges, the principle is not affected by any result;

their offices are gone. It is not enough to say, that though you

destroyed their offices, you offered them others with higher salaries.

You took away from them, in express terms, their offices, by abolishing

the offices. You had stripped them of their offices, you had robbed them

of their vested right, and then, to make friends, offered them a

compensation; but whether the compensation thus offered for the

deprivation they had suffered, was really equivalent to their loss, is a

mere matter of calculation, and does not affect the constitutional

principle. It is proper, however, to observe, that they were no parties

to the proposed compromise, and that indeed they had no choice left

them. They were obliged to accept of what you offered them, or have

nothing. If they did not agree to become judges of the newly organized

circuit courts, they could not remain judges of the district courts, for

these courts were absolutely and completely abolished.

By the seventh section of the law of the last session, which transforms

the district into circuit courts, which melts down the judges and

recoins them, it is enacted, that there shall be a circuit court,

composed of one new circuit judge and two old district judges, to be

called the Sixth Circuit. Have you not then established a new office by

the destruction of the old one? Have you not done more? Have you not

violated the constitution, by declaring, by law, who shall fill this new

office, though the constitution declares, article second, section two,

"That the President shall nominate, and, by and with the advice and

consent of the Senate, shall appoint all officers which shall be

established by law."

Where were these guardians of the constitution--these vigilant sentinels

of our rights and liberties, when this law passed? Were they asleep on

their post? Where was the gentleman from New York, who has, on this

debate, made such a noble stand in favor of a violated constitution?

Where was the _Ajax Telamon_ of his party, or, to use his own more

correct expression, the _faction_ to which he belonged? Where was the

hero with his seven-fold shield--not of bull's hide, but of

brass--prepared to prevent or to punish this Trojan rape, which he now

sees meditated upon the constitution of his country by a wicked

_faction_? Where was Hercules, that he did not crush this den of robbers

that broke into the sanctuary of the constitution? Was he forgetful of

his duty? Were his nerves unstrung? Or was he the very leader of the

band that broke down these constitutional ramparts?

I shall now, sir, trouble you with a few remarks on the expediency of

repealing this law. It has been said, that there is nothing peculiarly

disgustful in this law; that there has been no public clamor excited

against it; that it was enacted with solemnity, on calm and deliberate

reflection; and that time has not yet been given to test it by

experience.

As no member, who has taken part in debate, was a member of this body

when the law passed, I will say something of its history. I am not

disposed to excite the sensibility of gentlemen, by any remarks which I

shall make, or to call up unpleasant recollections of past scenes. But

when I hear it said that this law was passed with calmness, after mature

reflection, and that we are now, in a fit of passion, going to undo what

was thus wisely done, I think it necessary that the public should have a

correct statement.

It is true, that under the last Administration, when there existed (what

I trust will never, in an equal degree, exist again,) an immoderate

thirst for Executive patronage, a proposition was made to establish a

new judiciary system; a system worse than the present; as it proposed,

according to my recollection, thirty-eight judges instead of sixteen.

This law was very near passing. It was, however, rejected in the House

of Representatives by a very small majority. But it was circulated as a

project of a law among the people. It was illy received. It was thought

too rank a thing, and met with general disapprobation throughout the

United States, so far as I have been able to learn. After this

reception, it was softened down to the plan introduced at the last

session. What temper accompanied the progress of the bill in the other

House I know not, or, if I did know, would it be proper for me here to

say? But with respect to the acts of this body, I am not of opinion they

added any dignity to our common course of procedure. The bill was

referred to a committee, who, although it was very long, reported it

without any amendment. Various amendments were offered, some of which

were admitted to be proper. But they were not received. One, indeed,

proposed by a member from Connecticut, who was chairman of the

committee, and was then hostile to the plan, did pass in the early

stages of the bill, but on the third reading it was expunged. All

amendments proposed by the minority were uniformly rejected by a steady,

inflexible, and undeviating majority. I confess that I saw no passion,

but I certainly did see great pertinacity; something like what the

gentleman from Connecticut had termed _a holding fast_. No amendments

were admitted; when offered, we were told, no; you may get them

introduced by a rider or supplementary bill, or in any way you please;

but down this bill must go; it must be crammed down your throats. This

was not the precise phrase, but such was the amount of what was said.

I will say that not an argument was urged in favor of the bill, not a

word to show the necessity or propriety of the change. Yet we are told

that there was great dignity, great solemnity in its progress and

passage!

But there is something undignified in thus hastily repealing this law!

in thus yielding ourselves to the fluctuations of public opinion! So we

are told!--But if there be blame, on whom does it fall? Not on us, who

respected the public opinion when this law was passed, and who still

respect it; but on those who, in defiance of public opinion, passed this

law, after that public opinion had been decisively expressed. The

revolution in public opinion had taken place before the introduction of

this project; the people of the United States had determined to commit

their affairs to new agents; already had the confidence of the people

been transferred from their then rulers into other hands. After this

exposition of the national will, and this new deposit of the national

confidence, the gentlemen should have left untouched this important and

delicate subject--a subject on which the people could not be reconciled

to their views, even in the flood-tide of their power and influence;

they should have forborne, till agents, better acquainted with the

national will, because more recently constituted its organs, had come

into the Government. This would have been more dignified than to seize

the critical moment when power was passing from them, to pass such a law

as this. If there is error, it is our duty to correct it; and the truth

was, no law was ever more execrated by the public.

Let it not be said, postpone the repeal till the next session. No--let

us restore those gentlemen to private life, who have accepted

appointments under this law. This will be doing them greater justice,

than by keeping them in office another year, till the professional

business, which once attached to them, is gone into other channels.

Mr. STONE, of North Carolina.--Before entering into an examination of

the expediency of the repeal, it may be proper to remark, that gentlemen

who have spoken against the repeal, whose talents and eloquence I highly

admire, have not correctly stated the question. The true question is,

not whether we shall deprive the people of the United States of all

their courts of justice, but whether we shall restore to them their

former courts. Shall we, or shall we not, continue an experiment made,

or attempted to be made, I will not say improperly, because my respect

for this body and for my country, forbid the imputation; but I will say

that the length of time we remained without this system, and the

repeated ineffectual attempts made to establish it, present strong

reasons for inferring that there are not those great apparent reasons in

favor of it, that have been stated. A system somewhat similar to the

present had been rejected by the Legislature, because they preferred the

former system. Another evidence to the same purport is, that during the

last session, when the subject was again revived, and the present plan

adopted, an amendment was offered, to amend by extending and enlarging

the former establishment.

[Here Mr. S. read the amendment proposed, which augmented the number of

judges of the Supreme Court, and assigned their circuits.]

This amendment was rejected, and from the vote entered on the journal of

that day, it appears that the difference of votes against the amendment

was formed of those gentlemen who were nominated to appointments made

vacant by the promotions under the new law. I do not state this

circumstance as an evidence that these gentlemen were influenced by

improper motives; but to show that the manner in which the new system

was formed, was not calculated to establish, in the public mind, a

decided preference of it over the old system. Having made these remarks

on the great deliberation said to have been manifested in the adoption

of this plan, I hope I may be permitted to express my perfect

coincidence with the gentleman from Connecticut, that courts are

necessary for the administration of justice, and that, without them,

our laws would be a dead letter.

But it appears to me essential to the due administration of justice,

that those who preside in our courts should be well acquainted with the

laws which are to guide their decisions. And, I apprehend, that no way

is so much calculated to impart this knowledge, as a practical

acquaintance with them, by attending courts in the several States, and

hearing gentlemen who are particularly acquainted with them, explain and

discuss them. It is, therefore, absolutely necessary, in my mind, that

the Judges of the Supreme Court, whose power controls all the other

tribunals, and on whose decisions rest the property, the reputation, the

liberty, and the lives of our citizens, should, by riding the circuit,

render themselves practically acquainted with their duties. It is well

known, that the knowledge of the laws of a State, is not to be suddenly

acquired, and it is reasonable to conclude, that that knowledge is most

correctly possessed by men whose whole lives have been devoted to the

acquisition. It is also perfectly well known, that the knowledge of the

modes and principles of practice in the different States, or of any

State, is most effectually to be acquired in courts, where gentlemen of

skill and experience apply those principles to use upon existing points.

This defect, then, of the present plan, is, in my opinion, so radical,

that, of itself, it would decide, with me, the question of expediency.

To what source, then, shall we resort for a knowledge of what

constitutes this thing, called misbehavior in office? The constitution,

surely, did not intend that a circumstance so important as the tenure by

which the judges hold their offices, should be incapable of being

ascertained. Their misbehavior, certainly, is not an impeachable

offence; still it is the ground upon which the judges are to be removed

from office. The process of impeachment, therefore, cannot be the only

one by which the judges may be removed from office, under, and according

to the constitution. I take it, therefore, to be a thing undeniable,

that there resides somewhere in the Government, a power to declare what

shall amount to misbehavior in office, by the judges, and to remove them

from office for the same, without impeachment. The constitution does not

prohibit their removal by the Legislature, who have the power to make

all laws necessary and proper for carrying into execution the powers

vested by the constitution in the Government of the United States. But,

says the gentleman from New York, the judges are officers instituted by

the constitution, to save the people from their greatest enemies,

themselves; and therefore, they should be entirely independent of, and

beyond the control of the Legislature. If such was the design of the

wise men who framed and adopted the constitution, can it be presumed

they would have provided so ineffectual a barrier, as these judges can

readily be shown to be? It is allowed, on all hands, the Legislature

may modify the courts; they may add judges, they may fix the times at

which the courts shall sit, &c. Suppose the Legislature to have

interests distinct from the people, and the judges to stand in the way

of executing any favorite measure--can any thing be more easy than for

the Legislature to declare that the courts, instead of being held

semi-annually, or oftener, shall be held only once in six, eight, ten,

or twenty years? Or, in order to free themselves from the opposition of

the present Supreme Court, to declare, that court shall hereafter be

held by thirteen judges. An understanding between the President and the

Senate, would make it practicable to fill the new offices with men of

different views and opinions from those now in office. And what, in

either case, would become of this boasted protection of the people

against themselves? I cannot conceive the constitution intended so

feeble a barrier; a barrier so easily evaded.

It is not alone the sixteen rank and file, which the gentleman from New

York has so ludicrously depicted, that I apprehend immediate danger

from, but it is the principle which converts the office of judge into a

hospital of incurables, and declares, that an expiring faction, after

having lost the public confidence, may add to those sixteen, until they

become sixteen hundred or sixteen thousand; and that the restored good

sense of the Legislature, the whole Government and constitution, retains

no means of casting them off, but by destroying itself, and resorting to

revolutionary principles. The Legislature may repeal unnecessary taxes,

may disband useless and expensive armies, may declare they will no

longer be bound by the stipulations of an oppressive treaty; and if war

should follow, the constitution is still safe. But if the construction

which gentlemen contend for, be correct, a band of drones, to any amount

in number, under the denomination of judges, may prey upon the substance

of the people, and the Government retains not the power to remove them

but by destroying the constitution itself.

THURSDAY, January 14.

_Judiciary System._

The Senate resumed the consideration of the motion made on the 6th

instant, that the act of Congress passed on the 13th day of February,

1801, entitled "An act to provide for the more convenient organization

of the Courts of the United States," ought to be repealed.

Mr. OLCOTT, of New Hampshire, said this subject was of the most

important kind, and though many able arguments had been already offered,

he could not pass it over with a silent vote.

It has been suggested that the act now proposed to be repealed, came in

on the influx of passion, and that the influx of reason should sweep it

away. He did not know that this was the case. Some gentlemen contend

that it was adopted with great deliberation.

He thought the reasons for a repeal of this law insufficient. It is not

said, that if the constitution vests a right to office in the judges,

that we can affect them. He thought the constitution did vest the right,

and he held it to be sacred.

The provisions of the constitution appeared to him so plain, that they

scarcely admitted of illustration. He who undertakes to explain the

text, must find more explicit terms than those contained in it. He could

not find any.

After dwelling upon the different provisions of the constitution, Mr. O.

went upon the question of expediency, at some length, and concluded that

a repeal was as inexpedient as unconstitutional.

Mr. COCKE, of Tennessee, followed Mr. OLCOTT. He said he was sorry

gentlemen attempted to make quack doctors of them, by saying we may give

a wound, but cannot heal it. He wished the Senate to inquire whether the

law now proposed to be repealed was constitutional or not. If it was

not, we should act like honest men, acknowledge that we have violated

the constitution, and restore it to its purity by repealing the law. Let

us recur to the journals of 1799, and see what was the understanding of

these champions of our liberties, and whether they have not since

changed. The journals would prove that the judges were to mix with the

Legislature, were to be locked up in a closet, and to declare who was to

be our Executive Magistrate.

[Mr. COCKE here went into an examination of the arguments on the

constitutional point.]

We have been told that the nation is to look up to these immaculate

judges to protect their liberties; to protect the people against

themselves. This was novel, and what result did it lead to? He shuddered

to think of it. Were there none of these judges ready to plunge their

swords in the American heart? He did not think it proper to be alarmed

by the terrors held out. He wished to know no man; to take things as

they are. But if gentlemen will attack, they must expect a reply.

Mr. COCKE then dilated upon the several points of the discussion, and

concluded with the expression of the hope that the Legislature would

repeal the law, and that they would not give way to the ideas of

gentlemen, that the Government was made for a chosen few, for the

judges, to whom we are to look up for every thing.

Mr. MORRIS.--Mr. President, I had fostered the hope that some gentleman,

who thinks with me, would have taken upon himself the task of replying

to the observations made yesterday and this morning, in favor of the

motion on your table. But since no gentleman has gone so fully into the

subject, as it seems to require, I am compelled to request your

attention.

After these preliminary remarks, I hope I shall be indulged while I

consider the subject in reference to the two points which have been

taken, the _expediency_ and the _constitutionality_ of the repeal.

In considering the _expediency_, I hope I shall be pardoned for asking

your attention to some parts of the constitution, which have not yet

been dwelt upon, and which tend to elucidate this part of our inquiry. I

agree fully with the gentleman, that every section, every sentence, and

every word of the constitution, ought to be deliberately weighed and

examined; nay, I am content to go along with him, and give its due value

and importance to every stop and comma. In the beginning, we find a

declaration of the motives which induced the American people to bind

themselves by this compact. And in the fore-ground of that declaration,

we find these objects specified, "to form a more perfect union, to

establish justice, and to ensure domestic tranquillity." But how are

these objects effected? The people intended to _establish justice_. What

provision have they made to fulfil that intention? After pointing out

the courts which should be established, the second section of the third

article informs us:

"The judicial power shall extend to all cases in law and

equity, arising under this constitution, the laws of the

United States, and treaties made, or which shall be made,

under their authority; to all cases affecting ambassadors,

other public ministers and consuls; to all cases of

admiralty and maritime jurisdiction; to controversies to

which the United States shall be a party; to controversies

between two or more States; between a State and citizens of

another State; between citizens of different States;

between citizens of the same State claiming lands under

grants of different States; and between a State, or the

citizens thereof, and foreign States, citizens, or

subjects.

"In all cases affecting ambassadors, other public ministers

and consuls, and those in which a State shall be a party,

the Supreme Court shall have original jurisdiction. In all

the other cases before mentioned, the Supreme Court shall

have appellate jurisdiction, both as to law and fact, with

such exceptions and under such regulations as the Congress

shall make."

Thus then we find that the judicial power shall extend to a great

variety of cases, but that the Supreme Court shall have only appellate

jurisdiction in all admiralty and maritime causes, in all controversies

between the United States and private citizens, between citizens of

different States, between citizens of the same State claiming lands

under different States, and between a citizen of the United States and

foreign states, citizens, or subjects. The honorable gentleman from

Kentucky, who made the motion on your table, has told us that the

constitution, in its judiciary provisions, contemplated only those cases

which could not be tried in the State courts. But he will, I hope,

pardon me when I contend that the constitution did not merely

contemplate, but did, by express words, reserve to the national

tribunals a right to decide, and did secure to the citizens of America,

a right to demand their decision, in many cases evidently cognizable in

the State courts. And what are these cases? They are those in respect to

which it is by the constitution presumed that the State courts would not

always make a cool and calm investigation, a fair and just decision. To

form, therefore, a more perfect union, and to ensure domestic

tranquillity, the constitution has said there shall be courts of the

Union to try causes, by the wrongful decision of which the Union might

be endangered or domestic tranquillity be disturbed. And what courts?

Look again at the cases designated. The Supreme Court has no original

jurisdiction. The constitution has said that the judicial powers shall

be vested in the supreme and inferior courts. It has declared that the

judicial power so vested shall extend to the cases mentioned, and that

the Supreme Court shall not have original jurisdiction in those cases.

Evidently, therefore, it has declared that they shall (in the first

instance) be tried by inferior courts, with appeal to the Supreme Court.

This, therefore, amounts to a declaration, that the inferior courts

shall exist. Since, without them, the citizen is deprived of those

rights for which he stipulated, or rather those rights verbally granted,

would be actually withheld; and that great security of our Union, that

necessary guard of our tranquillity, be completely paralyzed, if not

destroyed. In declaring, then, that these tribunals shall exist, it

equally declares that the Congress shall ordain and establish them. I

say they shall; this is the evident intention, if not the express words,

of the constitution. The convention in framing, the American people in

adopting, that compact, did not, could not presume, that the Congress

would omit to do what they were thus bound to do. They could not

presume, that the Legislature would hesitate one moment, in establishing

the organs necessary to carry into effect those wholesome, those

important provisions.

The honorable member from Virginia has given us a history of the

judicial system, and in the course of it has told us, that the Judges of

the Supreme Court knew, when they accepted their offices, the duties

they had to perform, and the salaries they were to receive. He thence

infers, that if again called on to do the same duties, they have no

right to complain. Agreed: but that is not the question between us.

Admitting that they have made a hard bargain, and that we may hold them

to a strict performance, is it wise to exact their compliance to the

injury of our constituents? We are urged to go back to the old system;

but let us first examine the effects of that system. The Judges of the

Supreme Court rode the circuits, and two of them, with the assistance of

a district judge, held circuit courts and tried causes. As a Supreme

Court, they have in most cases only appellate jurisdiction. In the first

instance, therefore, they tried a cause, sitting as an inferior court,

and then on appeal tried it over again, as a Supreme Court. Thus, then,

the appeal was from the sentence of the judges to the judges themselves.

But say, that to avoid this impropriety, you will incapacitate the two

judges who sat on the circuit, from sitting in the Supreme Court to

review their own decrees. Strike them off; and suppose either the same

or a contrary decision to have been made on another circuit, by two of

their brethren, in a similar case. For the same reason you strike them

off, and then you have no court left. Is this wise? Is it safe? You

place yourselves in the situation where your citizens must be deprived

of the advantage given to them of a court of appeals, or else run the

greatest risk that the decision of the first court will carry with it

that of the other.

The same honorable member has given us a history of the law passed the

last session, which he wishes now to repeal. That history is accurate,

at least in one important part of it. I believe that all amendments were

rejected, pertinaciously rejected; and I acknowledge that I joined

heartily in that rejection. It was for the clearest reason on earth. We

all perfectly understood, that to amend the bill was to destroy it; that

if ever it got back to the other House, it would perish. Those,

therefore, who approved of the general provisions of that bill, were

determined to adopt it. We sought the practicable good, and would not,

in pursuit of unattainable perfection, sacrifice that good to the pride

of opinion. We took the bill, therefore, with its imperfections,

convinced that when it was once passed into a law, it might be easily

amended.

We are now told, that this procedure was improper; nay, that it was

indecent. That public opinion had declared itself against us. That a

majority (holding different opinions) was already chosen to the other

House; and that a similar majority was expected from that in which we

sit. Mr. President, are we then to understand that opposition to the

majority in the two Houses of Congress, is improper, is indecent? If so,

what are we to think of those gentlemen, who, not only with proper and

decent, but with laudable motives, (for such is their claim,) so long,

so perseveringly, so pertinaciously opposed that voice of the people,

which had so repeatedly, and for so many years, declared itself against

them, through the organ of their representatives? Was this indecent in

them? If not, how could it be improper for us to seize the only moment

which was left for the then majority to do what they deemed a necessary

act? Let me again refer to those imperious demands of the constitution,

which called on us to establish inferior courts. Let me remind gentlemen

of their assertion on this floor, that centuries might elapse before any

judicial system could be established with general consent. And then let

me ask, being thus impressed with the sense of the duty and the

difficulty of performing that arduous task, was it not wise to seize the

auspicious moment?

Among the many stigmas affixed to this law, we have been told that the

President, in selecting men to fill the offices which it created, made

vacancies and filled them from the floor of this House; and that but for

the influence of this circumstance, a majority in favor of it could not

have been found. Let us examine this suggestion. It is grounded on a

supposition of corrupt influence derived from a hope, founded on two

remote and successive contingencies. First, the vacancy might or might

not exist; for it depended as well on the acceptance of another, as on

the President's grant; and secondly, the President might or might not

fill it with a member of this House. Yet, on this vague conjecture, on

this unstable ground, it is inferred that men in high confidence

violated their duty. It is hard to determine the influence of

self-interest on the heart of man. I shall not, therefore, make the

attempt. In the present case, it is possible that the imputation may be

just, but I hope not, I believe not. At any rate gentlemen will agree

with me, that the calculation is uncertain, and the conjecture vague.

But let it now, for argument sake, be admitted, saving always the

reputation of honorable men, who are not here to defend themselves. Let

it, I say, for argument sake be admitted, that the gentlemen alluded to

acted under the influence of improper motives. What then? Is a law that

has received the varied assent required by the constitution, and is

clothed with all the needful formalities, 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 because all those who concurred in

it cannot give good reasons for their votes? Is it not before us? Must

we not judge of it by its intrinsic merit? Is it a fair argument,

addressed to our understanding, to say, we must repeal a law, even a

good one, if the enacting of it may have been effected in any degree by

improper motives? Or is the judgment of this House so feeble, that it

may not be trusted?

Let us, however, examine the clause objected to on the ground of the

constitution. It is said, that by this law the district judges in

Tennessee and Kentucky are removed from office, by making them circuit

judges. And again, that you have by law appointed two new offices, those

of circuit judges, and filled them by law, instead of pursuing the mode

of appointment prescribed by the constitution. To prove all this, the

gentleman from Virginia did us the favor to read those parts of the law

which he condemns, and if I can trust to my memory, it is clear, from

what he read, that the law does not remove these district judges,

neither does it appoint them to the office of circuit judges. It does

indeed put down the district courts; but it is so far from destroying

the offices of district judge, that it declares the persons filling

those offices shall perform the duty of holding the circuit courts. And

so far is it from appointing circuit judges, that it declares the

circuit courts shall be held by the district judges. But gentlemen

contend, that to discontinue the district courts, was in effect to

remove the district judge. This, sir, is so far from being a just

inference from the law, that the direct contrary follows as a necessary

result; for it is on the principle that these judges continue in office

after their courts are discontinued, that the new duty of holding other

courts is assigned to them. But, gentlemen say, this doctrine militates

with the principles we contend for. Surely not. It must be recollected,

sir, that we have repeatedly admitted the right of the Legislature to

change, alter, modify, and amend the judiciary system, so as best to

promote the interests of the people. We only contend that you shall not

exceed or contravene the authority by which you act. But, say gentlemen,

you forced this new office on the district judges, and this is in effect

a new appointment. I answer, that the question can only arise on the

refusal of those judges to act. But is it unconstitutional to assign new

duties to officers already existing? I fear that if this construction be

adopted, our labors will speedily end; for we shall be so shackled, that

we cannot move. What is the practice? Do we not every day call upon

particular officers to perform duties not previously assigned to, or

required of them? And must the Executive in every such case make a new

appointment?

But as a further reason to restore, by repealing this law, the old

system, an honorable member from North Carolina has told us, the judges

of the Supreme Court should attend in the States, to acquire a competent

knowledge of local institutions, and for this purpose should continue to

ride the circuits. I believe there is great use in sending young men to

travel; it tends to enlarge their views and give them more liberal ideas

than they might otherwise possess. Nay, if they reside long enough in

foreign countries they may become acquainted with the manners of the

people and acquire some knowledge of their civil institutions. But I am

not quite convinced that riding rapidly from one end of this country to

the other is the best way to study law. I am inclined to believe that

knowledge may be more conveniently acquired in the closet than in the

high road. It is moreover to be presumed that the first Magistrate

would, in selecting persons to fill these offices, take the best

characters from the different parts of the country, who already possess

the needful acquirements. But admitting that the President should not

duly exercise, in this respect, his discretionary powers, and admitting

that the ideas of the gentleman are correct, how wretched must be our

condition! These, our judges, when called on to exercise their

functions, would but begin to learn their trade, and that too at a

period of life when the intellectual powers with no great facility can

acquire new ideas. We must, therefore, have a double set of judges. One

set of apprentice-judges to ride circuits and learn; the other set of

master-judges, to hold courts and decide controversies.

We are told, sir, that the repeal asked for is important, in that it may

establish a precedent, for that it is not merely a question on the

propriety of disbanding a corps of sixteen rank and file; but that

provision may hereafter be made, not for sixteen but for sixteen hundred

or sixteen thousand judges, and that it may become necessary to turn

them to the right about. Mr. President, I will not, I cannot presume,

that any such provision will ever be made, and therefore I cannot

conceive any such necessity; I will not suppose, for I cannot suppose,

that any party or faction will ever do any thing so wild, so

extravagant. But I will ask, how does this strange supposition consist

with the doctrine of gentlemen, that public opinion is a sufficient

check on the Legislature, and a sufficient safeguard to the people? Put

the case to its consequences, and what becomes of the check? Will

gentlemen say it is to be found in the force of this wise precedent? Is

this to control succeeding rulers in their wild, their mad career? But

how? Is the creation of judicial officers the only thing committed to

their discretion? Have they not, according to the doctrine contended

for, our all at their disposition, with no other check than public

opinion, which, according to the supposition, will not prevent them from

committing the greatest follies and absurdities? Take then all the

gentleman's ideas, and compare them together, it will result that here

is an inestimable treasure put into the hands of drunkards, madmen, and

fools.

But away with all these derogatory suppositions. The Legislature may be

trusted. Our Government is a system of salutary checks: one Legislative

branch is a check on the other. And should the violence of party spirit

bear both of them away, the President, an officer high in honor, high in

the public confidence, charged with weighty concerns, responsible to his

own reputation and to the world, stands ready to arrest their too

impetuous course. This is our system. It makes no mad appeal to every

mob in the country. It appeals to the sober sense of men selected from

their fellow-citizens for their talents, for their virtue; of men

advanced in life, and of mature judgment. It appeals to their

understanding, to their integrity, to their honor, to their love of

fame, to their sense of shame. If all these checks should prove

insufficient, and alas! such is the condition of human nature, that I

fear they will not always be sufficient, the constitution 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 sound. The Executive Magistrate commands indeed

your fleets and armies; and duties, imposts, excises, and other taxes

are collected, and all expenditures are made by officers whom he has

appointed. So far indeed he executes your laws. But these, his acts,

apply not often to individual concerns. In those cases so important to

the peace and happiness of society, the execution of your laws is

confided to your judges; and therefore are they rendered independent.

Before then that you violate that independence, pause. There are State

sovereignties, as well as the sovereignty of the General Government.

There are cases, too many cases, in which the interest of one is not

considered as the interest of the other. Should these conflict, if the

Judiciary be gone, the question is no longer of law, but of force. This

is a state of things which no honest and wise man can view without

horror.

Suppose, in the omnipotence of your Legislative authority, you trench

upon the rights of your fellow-citizens, by passing an unconstitutional

law. If the Judiciary Department preserve its vigor, it will stop you

short. Instead of a resort to arms, there will be a happier appeal to

argument. Suppose a case still more impressive. The President is at the

head of your armies. Let one of his generals, flushed with victory and

proud in command, presume to trample on the rights of your most

insignificant citizen: indignant of the wrong, he will demand the

protection of your tribunals, and, safe in the shadow of their wings,

will laugh his oppressor to scorn.

This, sir, leads me to the second object I had proposed. I shall

therefore pray your indulgence, while I consider how far this measure is

_constitutional_. I have not been able to discover the expediency, but

will now, for argument's sake, admit it; and here, I cannot but express

my deep regret for the situation of an honorable member from North

Carolina. Tied fast, as he is, by his instructions, arguments, however

forcible, can never be effectual. I ought, therefore, to wish, for his

sake, that his mind may not be convinced by any thing I shall say; for

hard indeed would be his condition, to be bound by the contrarient

obligations of an order and an oath. I cannot, however, but express my

profound respect for the talents of those who gave him his instructions,

and who, sitting at a distance, without hearing the arguments, could

better understand the subject than their Senator on this floor, after

full discussion.

The honorable member from Virginia has repeated the distinction before

taken between the supreme and the inferior tribunals; he has insisted on

the distinction between the words _shall_ and _may_; has inferred from

that distinction, that the judges of the inferior courts are subjects of

Legislative discretion; and has contended that the word _may_ includes

all power respecting the subject to which it is applied, consequently to

raise up and to pull down, to create and to destroy. I must entreat your

patience, sir, while I go more into this subject than ever I supposed

would be necessary. By the articles so often quoted, it is declared,

"that the judicial power of the United States _shall_ be vested in one

Supreme Court, and in such inferior courts as the Congress _may_ from

time to time establish." I beg leave to call your attention to what I

have already said of these inferior courts. That the original

jurisdiction of various subjects being given exclusively to them, it

became the bounden duty of Congress to establish such courts. I will not

repeat the argument already used on that subject. But I will ask those

who urged the distinction between the Supreme Court and the inferior

tribunals, whether a law was not previously necessary before the

Supreme Court could be organized. They reply, that the constitution

says, there _shall_ be a Supreme Court, and therefore the Congress are

commanded to organize it, while the rest is left to their discretion.

This, sir, is not the fact. The constitution says, the judicial power

shall be vested in one Supreme Court, and in inferior courts. The

Legislature can therefore only organize one Supreme Court, but they may

establish as many inferior courts as they shall think proper. The

designation made of them by the constitution is, such inferior courts as

the Congress may from time to time ordain and establish. But why, say

gentlemen, fix precisely one Supreme Court, and leave the rest to

Legislative discretion? The answer is simple: it results from the nature

of things from the existent and probable state of our country. There was

no difficulty in deciding that one and only one Supreme Court would be

proper or necessary, to which should lie appeals from inferior

tribunals. Not so as to these. The United States were advancing in rapid

progression. Their population of three millions was soon to become five,

then ten, afterwards twenty millions. This was well known, as far as the

future can become an object of human comprehension. In this increase of

numbers, with a still greater increase of wealth, with the extension of

our commerce and the progress of the arts, it was evident that although

a great many tribunals would become necessary, it was impossible to

determine either on the precise number or the most convenient form. The

convention did not pretend to this prescience; but had they possessed

it, would it have been proper to have established, then, all the

tribunals necessary for all future times? Would it have been wise to

have planted courts among the Chickasaws, the Choctaws, the Cherokees,

the Tuscaroras, and God knows how many more, because at some future day

the regions over which they roam might be cultivated by polished men!

Was it not proper, wise and necessary, to leave in the discretion of

Congress the number and the kind of courts which they might find it

proper to establish for the purpose designated by the constitution? This

simple statement of facts--facts of public notoriety--is alone a

sufficient comment on, and explanation of, the word on which gentlemen

have so much relied. The convention in framing, the people in adopting,

this compact say the judicial power shall extend to many cases, the

original cognizance whereof shall be by the inferior courts; but it is

neither necessary, nor even possible now to determine their number or

their form; that essential power, therefore, shall vest in such inferior

courts as the Congress may from time to time, in the progression of

time, and according to the indication of circumstances, establish; not

provide, or determine, but establish. Not a mere temporary provision,

but an establishment. If, after this, it had said in general terms, that

judges should hold their offices during good behavior, could a doubt

have existed on the interpretation of this act, under all its attending

circumstances, that the judges of the inferior courts were intended as

well as those of the Supreme Court? But did the framers of the

constitution stop here? Is there then nothing more? Did they risk on

these grammatical niceties the fate of America? Did they rest here the

most important branch of our Government? Little important, indeed, as to

foreign danger; but infinitely valuable to our domestic peace, and to

personal protection against the oppression of our rulers. No; lest a

doubt should be raised, they have carefully connected the judges of both

courts in the same sentence; they have said, "the judges both of the

supreme and inferior courts," thus coupling them inseparably together.

You may cut the bands, but you can never untie them. With salutary

caution they devised this clause to arrest the over-bearing temper which

they knew belonged to Legislative bodies. They do not say the judges,

simply, but the judges of the supreme and inferior courts shall hold

their offices during good behavior. They say, therefore, to the

Legislature, you may judge of the propriety, the utility, the necessity,

of organizing these courts; but when established, you have done your

duty. Anticipating the course of passion in future times, they say to

the Legislature, you shall not disgrace yourselves by exhibiting the

indecent spectacle of judges established by one Legislature removed by

another. We will save you also from yourselves. We say these judges

shall hold their offices; and surely, sir, to pretend that they can hold

their office after the office is destroyed, is contemptible.

The framers of this constitution had seen much, read much, and deeply

reflected. They knew by experience the violence of popular bodies, and

let it be remembered, that since that day many of the States, taught by

experience, have found it necessary to change their forms of government

to avoid the effects of that violence. The convention contemplated the

very act you now attempt. They knew also the jealousy and the power of

the States; and they established for your and for their protection this

most important department. I beg gentlemen to hear and remember what I

say: it is this department alone, and it is the independence of this

department, which can save you from civil war. Yes, sir, adopt the

language of gentlemen, say with them, by the act to which you are urged,

"if we cannot remove the judges we can destroy them." Establish thus the

dependence of the Judiciary Department, who will resort to them for

protection against you? Who will confide in, who will be bound by their

decrees? Are we then to resort to the ultimate reason of kings? Are our

arguments to fly from the mouths of our cannon?

Is there a member of this House, who can lay his hand on his heart, and

say that, consistently with the plain words of our constitution, we have

a right to repeal this law? I believe not. And if we undertake to

construe this constitution to our purposes, and say that public opinion

is to be our judge, there is an end to all constitutions. To what will

not this dangerous doctrine lead? Should it to-day be the popular wish

to destroy the First Magistrate, you can destroy him; and should he

to-morrow be able to conciliate to him the popular will, and lead them

to wish for your destruction, it is easily effected. Adopt this

principle and the whim of the moment will not only be the law, but the

constitution of our country.

The gentleman from Virginia has mentioned a great nation brought to the

feet of one of her servants. But why is she in that situation? Is it not

because popular opinion was called on to decide every thing, until those

who wore bayonets decided for all the rest? Our situation is peculiar.

At present our national compact can prevent a State from acting

hostilely towards the general interest. But let this compact be

destroyed, and each State becomes instantaneously vested with absolute

sovereignty. Is there no instance of a similar situation to be found in

history? Look at the States of Greece. They were once in a condition not

unlike to that in which we should then stand. They treated the

recommendations of their Amphictyonic Council (which was more a meeting

of Ambassadors than a Legislative assembly) as we did the resolutions of

the old Congress. Are we wise? So they were. Are we valiant? They also

were brave. Have we one common language, and are we united under one

head? In this, also, there was a strong resemblance. But, by their

divisions, they became at first victims to the ambition of Philip, and

were at length swallowed up in the Roman empire. Are we to form an

exception to the general principles of nature, and to all the examples

of history? And are the maxims of experience to become false, when

applied to our fate?

Some, indeed, flatter themselves that our destiny will be like that of

Rome. Such, indeed, it might be, if we had the same wise but vile

aristocracy, under whose guidance they became the masters of the world.

But we have not that strong aristocratic arm, which can seize a wretched

citizen, scourged almost to death by a remorseless creditor, turn him

into the ranks, and bid him, as a soldier bear our eagle in triumph

round the globe! I hope to God we shall never have such an abominable

institution. But what, I ask, will be the situation of these States

(organized as they now are) if, by the dissolution of our national

compact, they be left to themselves? What is the probable result? We

shall either be the victims of foreign intrigue, and split into

factions, fall under the domination of a foreign power, or else, after

the misery and torment of civil war, become the subjects of a usurping

military despot. What but this compact--what but this specific part of

it, can save us from ruin? The judicial power, that fortress of the

constitution, is now to be overturned. Yes, with honest Ajax, I would

not only throw a shield before it, I would build around it a wall of

brass. But I am too weak to defend the rampart against the host of

assailants. I must call to my assistance their good sense, their

patriotism and their virtue. Do not, gentlemen, suffer the rage of

passion to drive reason from her seat. If this law be indeed bad, let us

join to remedy the defects. Has it been passed in a manner which wounded

your pride, or aroused your resentment? Have, I conjure you, the

magnanimity to pardon that offence. I entreat, I implore you to

sacrifice those angry passions to the interests of our country. Pour out

this pride of opinion on the altar of patriotism. Let it be an expiatory

libation for the weal of America. Do not, for God's sake, do not suffer

that pride to plunge us all into the abyss 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 ravaged towns. Do not rely on that popular will,

which has brought us frail beings into political existence. That opinion

is but a changeable thing. It will soon change. This very measure will

change it. You will be deceived. Do not, I beseech you, in reliance on a

foundation so frail, commit the dignity, the harmony, the existence of

our nation to the wild wind. Trust not your treasure to the waves. Throw

not your compass and your charts into the ocean. Do not believe that its

billows will waft you into port. Indeed, indeed, you will be deceived.

Cast not away this only anchor of our safety. I have seen its progress.

I know the difficulties through which it was obtained. I stand in the

presence of Almighty God, and of the world: and I declare to you, that

if you lose this charter, never, no, never will you get another! We are

now, perhaps, arrived at the parting point. Here, even here, we stand on

the brink of fate. Pause--pause! For Heaven's sake, pause!

WEDNESDAY, February 3.

The question was then taken on the final passage of the bill and

determined in the affirmative--yeas 16, nays 15, as follows:

YEAS.--Messrs. Anderson, Baldwin, Bradley, Breckenridge,

Brown, Cocke, Ellery, T. Foster, Franklin, Jackson, Logan,

S. T. Mason, Nicholas, Stone, Sumter, and Wright.

NAYS.--Messrs. Chipman, Colhoun, Dayton, D. Foster,

Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Ross,

Sheafe, Tracy, Wells, and White.[65]

So it was _Resolved_, That this bill pass, that it be engrossed, and

that the title thereof be "An act to repeal certain acts respecting the

organization of the courts of the United States, and for other

purposes."

SATURDAY, April 17.

The VICE PRESIDENT being absent, the Senate proceeded to the election of

a President _pro tempore_, as the constitution so provides; and the

honorable ABRAHAM BALDWIN was chosen.

_Ordered_, That the Secretary notify the House of Representatives of

this election.