Upon the imposition of the carriage tax by Congress, a citizen of

Virginia refused to pay the tax, on the ground that it was

unconstitutionally laid. He was sued for the penalty in the circuit

court of that State, from whence, by writ of error, the suit came before

the Supreme Court; in this case the defendant relied solely on the

unconstitutionality of the act of Congress, and on this ground was

defended by the attorney general of the State of Virginia, and the

attorney general of the State of Pennsylvania. At this time, then, it

appears that these learned gentlemen, the judges, and the citizens,

thought the court competent to relieve in case the law was judged to be

unconstitutional. In 1792, Congress passed an act imposing certain

duties respecting invalid pensioners, upon the judges of the circuit

court. The judges, at the first court after this act, protested against

it; their protests were transmitted to the President of the United

States--that President, who had presided in the General Convention which

framed the constitution, and, therefore, as likely to understand the

powers of Congress on the Judiciary as any other man, so far sanctioned

their opinions as to transmit them to the next Congress, where the act

was reconsidered and repealed. I beg leave, also, to allude to the

authority before mentioned by my friend from Pennsylvania, (Mr.

HEMPHILL,) which I should think of some weight here. It is the opinion

of a gentleman, venerable for his age, respectable for legal knowledge,

and distinguished for what, in the fashionable language of the day, are

termed republican principles. I mean the Executive of Pennsylvania; that

gentleman, in assigning to the Legislature of his State his reasons for

not approving an act they had laid before him, after expressing his

doubts of the constitutionality of the act, declares, "he cannot, from a

confidence in the legal knowledge, integrity, and fortitude of his

former brethren in the Supreme Court, risk his character in a judicial

decision on this question, when he does not see any advantage to be

derived to his country from a possibility of success." If any words can

make more plain the opinion here conveyed, it is that he considers the

judges have the power and will exercise it, to declare the act

unconstitutional.

To my mind, these considerations are satisfactory, that, from the very

constitution of our courts, from the practice and admission of our State

courts and State Legislatures, and Federal courts, and Federal

Legislature, that the judges of the United States, sitting in court,

have the power, and by oath are bound to pronounce, that, an act

contrary to the constitution, is void. From the establishment of this

proposition, that the judges are the expounders of the constitution, and

the laws made under it, and that they are thereby a check on the

Legislature, I shall infer that, by the spirit of our constitution, they

ought to be independent of the other branches of Government, but

particularly so of the Legislature. The concentrating the branches of

power either Executive and Legislative, or Legislative and Judiciary, in

the same hands, is the very essence of tyranny; in proportion as we

advance towards the union of those powers, in the same proportion do we

recede from liberty. Are these departments separate, unconnected--if the

Legislature by any means procure their will either directly or

indirectly, to be substituted for or to overrule judicial judgment?

Whether the Legislature expound and adjudge their acts themselves, or

submit them to the exposition and judgment of a judiciary subservient to

them, is essentially the same. If the Legislature exercise the power of

removal from office by the direct means of a vote of removal, or by the

indirect means, the legislative legerdemain of a repealing act, is

precisely the same thing, the judges are no longer independent, but

dependent on the Legislature for their offices, and subject to their

control; a consequence entirely repugnant to the spirit of our

constitution. I shall attempt to show, that by the words of our

constitution, the judges are placed beyond Legislative control. Article

three, section one: "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." Until the

contemplation of the present measure, I incline to believe, it never

entered the mind of any man acquainted with this clause of the

constitution, that judges should be removed otherwise than by

impeachment for misdemeanor. The advocates for this Legislative power

contend that the tenure of "good behavior" in this article of the

constitution is intended to restrict Executive and not Legislative

power. It does not appear probable that an express restriction should be

introduced against a power which is nowhere expressly granted; for

gentlemen know that the Executive power of removal from office is a

power admitted from construction, and not founded on any thing drawn

from the constitution. I say this rather, because, by the constitution,

the aid of the Senate is necessary to appoint, and _a fortiori_ should

be necessary to remove. It is important to ascertain what was the

intention of the framers of the constitution in introducing the words

"good behavior." The most correct source in our power from which this

aid may be derived, is the writings and opinions at that day of those

who aided in the great work. Among those publications which were written

for the purpose of explaining and recommending this constitution, the

most celebrated are those pieces over the signature of "Publius,"

written by the pens of gentlemen of leading influence in the Convention,

and whose talents and patriotism are still honored by the nation. In

that part of this work which treats of the tenure of the office of

judge during "good behavior," I find this strong expression:

"The standard of good behavior for the continuance in

office of the judicial magistracy is certainly one of the

most valuable of the modern improvements in the practice of

Government. In a monarchy, it is an excellent barrier to

the despotism of the prince. In a republic, it is a no less

excellent barrier to the encroachments and oppressions of

the representative body."

This, sir, to my mind, is conclusive, that the convention intended this

tenure as a restriction no less on Legislative than on Executive power,

and that, in this sense of the phrase, the people of America received

this part of the constitution. In ascertaining the import of the words

"during good behavior," it is certainly important to inquire the end to

which they have been used in other similar cases. My colleague (Mr.

HENDERSON) has, with much abler talents, shown that, in most of the

State constitutions, which existed before our Federal constitution,

these words are used to fix the tenure of offices where the Executive

have neither express nor constructive power of removal; consequently,

they are in those constitutions restrictive of the Legislative power.

If, then, the framers of our constitution borrowed this tenure from

these State constitutions, it is fair and reasonable to conclude they

used them in the sense in which they were previously received. But, says

my colleague on the other side of the House, (Mr. ROBERT WILLIAMS,) the

judges in England hold their offices by the tenure of "good behavior,"

and yet are removable on an address from both Houses of Parliament, and

he infers that the terms may have been taken from England. To this I

will first observe, that no fair argument can be drawn from the

existence of this Legislative power there, for the exercise here. The

mode of appointment there may render such control over the Executive

necessary, which, from the provisions of our constitution, are not

wanted here. In England, the King has the sole power of appointment--the

people have no previous check. In this country, the Executive

appointment is checked by the requisite sanction of the Senate. But is

this Legislative power in Great Britain usurped by construction? No, if

the gentleman will read again the statute of 13 William III., he will

find that this power of removal is expressly granted by the Crown to

Parliament. If, then, one convention had this statute before them, in

adopting that part which relates to the tenure of office, and omitting

that part which gives the power of removal, it is not to be presumed

they intended so important a power should depend on construction. The

same gentleman (Mr. ROBERT WILLIAMS) also contended that it could not be

presumed the convention intended to restrict the power of the

Representatives of the people, the friends of the people. What will the

gentleman say of the correctness of his opinion, when I remind him that

our powers are all expressly restricted; that the same article which

fixes the tenure of "good behavior," expressly and undoubtedly guards

against the power of the Representatives of the people, the friends of

the people, by securing the salaries of the judges undiminished during

their continuance in office.

Mr. GILES said that he felt some degree of apprehension, that, in the

course he deemed it necessary to take in the discussion of this

question, some observations might fall from him which might not be in

strict harmony with the feelings of some gentlemen of the committee. He

should regret, however, if a compliance with a sense of duty should

produce that effect. He said, therefore, that he wished to apprise

gentlemen that he intended to direct his observations as much as

possible to the effects and tendencies of measures; and that when he was

constrained to speak of the views of gentlemen, it would be with respect

to what he conceived to be their opinions in relation to the general

interests, and not to private gratifications. He said it was natural

that men should differ in the choice of means to produce a given end,

and more natural that they should differ in the choice of political

means than any other; because the subject presented more complicated and

variable objects, out of which to make a choice. Accordingly, a great

portion of the human mind has been at all times directed towards

monarchy, as the best form of government to enforce obedience and ensure

the general happiness; whereas another portion of the human mind has

given a preference to the republican form, as best calculated to produce

the same end; and there is no reason for applying improper motives to

individuals who should give a preference to either of the principles,

provided in doing so they follow the honest dictates of their own

judgments. It must be obvious to the most common observer, that, from

the commencement of the Government of the United States, and perhaps

before it, a difference of opinion existed among the citizens, having

more or less reference to these two extreme fundamental points, and that

it manifested itself in the modification or administration of the

Government as soon as it was put in operation. On one side, it was

contended, that in the organization of the constitution a due

apportionment of authority had not been made among the several

departments; that the Legislature was too powerful for the Executive

Department; and to create and preserve a proper equipoise, it was

necessary to infuse into the Executive Department, by legislation, all

artificial powers compatible with the constitution, upon which the most

diffusive construction was given; or, in other words, to place in

Executive hands all the patronage it was possible to create, for the

purpose of protecting the President against the full force of his

constitutional responsibility to the people. On the other side, it was

contended, that the doctrine of patronage was repugnant to the opinions

and feelings of the people; that it was unnecessary, expensive, and

oppressive, and that the highest energy the Government could possess,

would flow from the confidence of the mass of the people, founded upon

their own sense of their common interests. Hence, what is called party

in the United States, grew up from a division of opinion respecting

these two great characteristic principles. Patronage, or the creation of

partial interest for the protection and support of Government, on the

one side: on the other side, to effect the same end, a fair

responsibility of all representatives to the people; an adherence to the

general interests, and a reliance on the confidence of the people at

large, resulting from a sense of their common interests. A variety of

circumstances existed in the United States at the commencement of the

Government, and a great number of favorable incidents continued

afterwards to arise, which gave the patronage system the preponderancy,

during the first three Presidential terms of election; notwithstanding

it was evident, that the system was adopted and pursued in direct

hostility to the feelings and opinions of a great portion of the

American people. The Government was ushered into operation under a vast

excitement of federal fervor, flowing from its recent triumph on the

question of adopting the constitution. At that time a considerable debt

was afloat in the United States, which had grown out of the

Revolutionary war. This debt was of two kinds: the debt proper of the

United States, or engagements made by the United States in their federal

capacity; the other, the State debts or engagements entered into by the

respective States for the support of the common cause.

The favorers of the patronage system readily availed themselves of these

materials for erecting a moneyed interest; gave to it a stability, or

qualified perpetuity, and calculated upon its certain support in all

their measures of irresponsibility.

This was done not only by funding the debt proper of the United States,

but by assuming the payment of the State debts, and funding them also;

and it is believed, extending the assumption beyond the actual

engagements of the States. Hence the Federal axiom, that a public debt

is a public blessing. Shortly after this event, an Indian war sprang

up--he would not say by what means--in consequence of which an army was

added to the list of patronage. The Algerines commenced a predatory war

upon the commerce of the United States, and thence a navy formed a new

item of patronage. Taxes became necessary to meet the expenses of this

system, and an arrangement of internal taxes, an excise, &c., still

swelled the list of patronage. But the circumstance which most favored

this system was, the breaking out of a tremendous and unprecedented war

in those countries of Europe with which the United States had the most

intimate relations. The feelings and sympathies of the people of the

United States were so strongly attracted by the tremendous scenes

existing there, that they considered their own internal concerns in a

secondary point of view. After a variable conduct had been pursued by

the United States in relation to these events, the depredations

committed upon commerce, and the excitements produced thereby, enabled

the Administration to indulge themselves in a more decisive course, and

they at once pushed forward the people to the X, Y, Z, of their

political alphabet, before they had well learned and understood the A,

B, C, of the principles of the Administration.

Armies and navies were raised, and a variety of other schemes of expense

were adopted, which placed the Administration in the embarrassing

predicament, either to violate their faith with their public creditors,

or to resort to new taxes. The latter alternative was preferred,

accompanied with other strong coercive measures to enforce obedience. A

land tax was laid for two millions of dollars. This measure awakened the

people to a sense of their situation; and shook to the foundation all

those federal ramparts which had been planned with so much ingenuity,

and erected around the Executive with so much expense and labor. Another

circumstance peculiarly favorable to the advocates of Executive

patronage was, that during the two first Presidential terms, the Chief

Executive Magistrate possessed a greater degree of popularity and the

confidence of the people than ever was, or perhaps will ever be again

attached to the person occupying that dignified station. The general

disquietude which manifested itself in consequence of these enterprising

measures, in the year 1800, induced the Federal party to apprehend that

they had pushed their principles too far, and they began to entertain

doubts of the result of the Presidential election, which was

approaching. In this state of things, it was natural for them to look

out for some department of the Government in which they could intrench

themselves in the event of an unsuccessful issue in the election, and

continue to support those favorite principles of irresponsibility which

they could never consent to abandon.

The Judiciary Department, of course, presented itself as best fitted for

their object, not only because it was already filled with men who had

manifested the most indecorous zeal in favor of their principles, but

because they held their offices by indefinite tenures, and of course

were further removed from any responsibility to the people, than either

of the other departments. Accordingly, on the 11th of March, 1800, a

bill for the more convenient organization of the courts of the United

States, was presented to the House of Representatives. This bill appears

to have had for its objects, first, the gradual demolition of the State

courts, by increasing the number and extending the jurisdiction of the

Federal courts. Second, to afford additional protection to the

principles of the then existing Administration by creating a new corps

of judges of concurring political opinions. This bill, however, was not

passed into a law during that session of Congress, perhaps from an

apprehension that it would tend to increase the disquietudes which other

measures had before excited, and therefore operate unfavorably to the

approaching Presidential election. At the next session, after the result

of the late election was ascertained, the bill, after having undergone

some considerable alterations, was passed into the law now under

discussion. This law, it is now said, is inviolable and irrepealable. It

is said, the independence of the judge will be thereby immolated. Yes,

sir, this law is now considered as the sanctuary of the principles of

the last Administration, and the tenures of the judges as the horns of

inviolability within that sanctuary. He said, we are now called upon to

rally round the constitution as the ark of our political safety.

Gentlemen, discarding all generalizing expressions, and the spirit of

the instrument, tie down all construction to the strict letter of the

constitution. He said, it gave him great pleasure to meet gentlemen on

this ground, and the more so, because he had long been in the habit of

hearing very different language from the same gentlemen. He had long

been in the habit of hearing the same gentlemen speak of the expressions

of "the common defence and the general welfare," as the only valuable

part of the constitution; that they were sufficient to obliterate all

specifications and limitations of power. That the constitution was a

mere nose of wax, yielding to every impression it received. That every

"opening wedge" which was driven into it, was highly beneficial in

severing asunder the limitations and restrictions of power. That the

republicanism it secured, meant any thing or nothing. It gave him,

therefore, great pleasure at this time to obey the injunctions of

gentlemen in rallying round the constitution as the ark of our political

safety, and of interpreting it in by the plain and obvious meaning and

letter of the specified powers. But, he said, as if it was always the

unfortunate destiny of these gentlemen to be upon extremes, they have

now got round to the opposite extreme point of the political compass,

and even beyond it. For, he said, they not only tie down all

construction to the letter of the instrument, but they tell us that they

see, and call upon us also to see written therein, in large capital

characters, "the independence of judges;" which, to the extent they

carry the meaning of the term, is neither to be found in the letter or

spirit of that instrument, or in any other political establishment, he

believed, under the sun. Mr. G. said he rejoiced that this subject was

now to be discussed; he thought the crisis peculiarly auspicious for the

discussion. He said the European world, with which the United States

have the most relations, is now tranquillized. The tremendous scenes of

blood and revolution which had agitated that portion of the globe, had

at length subsided into profound peace; and had left mankind in silent

amazement, to retrospect the wonderful events which were passed; and he

hoped, with calm deliberation, to improve the lessons they had furnished

for the benefit of mankind in time to come. The interests and

sympathies, which the people of the United States felt in these events,

no longer turn their attention from their internal concerns; arguments

of the highest consideration for the safety of the constitution and the

liberty of the citizens, no longer receive the short reply, French

partisans! Jacobins! Disorganizers! And although the gentleman from

North Carolina sees, or thinks he sees, the destructive spirit mount in

the whirlwind and direct the storm, let him be consoled by the

information, "that all these, our actors, are mere spirits, and are

dissolved into thin air." Yes, sir, these magical delusions are now

vanished, and have left the American people and their Congress, in their

real persons, and original American characters, engaged in the

transaction of American concerns.

He said he would now proceed to examine whether the repeal of the

Judiciary law of the last session of Congress would in any respect

violate that salutary and practicable independence of the judges which

was secured to them by the constitution. He said the terms _independence

of Judges or of the Judiciary Department_ was not to be found in the

constitution. It was therefore a mere inference from some of the

specified powers. And he believed, in the meaning of gentlemen, and to

the extent they carry it, that the term is not to be found either in the

spirit, general character, or phraseology, of any article or section of

the constitution. He meant to give the constitution the most candid

interpretation in his power, according to the plain and obvious import

of the English language. He should discard, in his interpretation, the

terms "common defence and general welfare," which had been resorted to

by some gentlemen. He considered these words as containing no grant of

power whatever but merely the expression of the ends or objects to be

effected by the grants of specified powers. He therefore protested

against drawing any aid whatever from them in his construction of the

instrument. He said he had read through the whole constitution, to

enable him to form his opinion upon this question, for fear there might

be in some hidden corner of it some provision which might demonstrate

the unconstitutionality of the present bill; and if so, (although he

should lament such a provision,) he would instantly give up the bill.

But his researches had terminated in a different result. He said he

found, from the general character of the constitution, that the general

will was its basis, the general good its object, and the fundamental

principle for effecting this object was the responsibility of all public

agents, either mediately or immediately to the people. He said the

context of the constitution would demonstrate the two first points,

which he begged to read:

"We, the people of the United States, in order to form a

more perfect union, establish justice, ensure domestic

tranquillity, provide for the common defence, promote the

general welfare, and secure the blessings of liberty to

ourselves and our posterity, do ordain and establish this

Constitution for the United States of America."

Here we find the constitution founded upon the will of the people, and

the object declared to be the good of the people. Through the whole body

of the constitution may be discerned the responsibility of all public

agents, either mediately or immediately, to the people. This

responsibility results, first, from the division of authority into

different departments; secondly, from a specification and limitation of

the authorities of all and each of the departments; thirdly, from

periodical appointments of the public agents. The first clause declares

there shall be a Congress, to whom the business of legislation is

confided. This Congress is to consist of a House of Representatives, to

be chosen by the people immediately, and responsible to them at the end

of every two years; and a Senate, to be chosen by the Legislatures of

the different States, who are chosen by the people--one-third of the

Senators to be chosen every two years, and responsible at the end of

every six years. The Executive power is vested in a President, who is

chosen by electors, who are chosen for the express purpose by the

people, and responsible at the end of every four years. The President

may be considered as immediately responsible to the people, although

chosen through the medium of electors; because it is found, in practice,

that the electors are constrained to avow the vote they intend to give

before they are chosen, and the people have generally made their

elections with a view to that object.

Thus, then, are formed two departments, their powers specified and

defined, the times for extending their powers fixed, and indeed a

complete organization for the execution of their respective powers,

without the intervention of any law for that purpose. A third

department, to wit, the Judiciary Department, is still wanting. Is that

formed by the constitution? How is that to be formed? It is not formed

by the constitution. It is only declared that there shall be such a

department; and it is directed to be formed by the other two

departments, who owe a responsibility to the people. Here there arises

an important difference of opinion between the different sides of this

House. It is contended on one side that the Judiciary Department is

formed by the constitution itself. It is contended on the other side,

that the constitution does no more than to declare that there shall be a

Judiciary Department, and directs that it shall be formed by the other

two departments, under certain modifications. Article third, section

first, the constitution has these words: "The Judicial power of the

United States shall be vested in one Supreme Court and in such inferior

courts as Congress shall from time to time ordain and establish." Here,

then, the power to ordain and establish inferior courts is given to

Congress in the most unqualified terms, and also to ordain and establish

"one Supreme Court." The only limitation upon the power of Congress in

this clause, consists in the number of supreme courts to be established;

the limitation is to the number of one, although that is an affirmative

and not a negative expression. The number of judges, the assignation of

duties, the fixing compensations, the fixing the times when, and places

where, the courts shall exercise their functions, &c., are left to the

entire discretion of Congress. The spirit, as well as the words of the

constitution, are completely satisfied, provided one Supreme Court be

established. Hence, when all these essential points in the organization

and formation of courts are intrusted to the unlimited discretion of

Congress, it cannot be said that the courts are formed by the

constitution. For further restraints, therefore, upon the discretion of

Congress, the remaining part of the same section must be consulted. Here

he begged leave to remark, that he had often felt a veneration for the

wisdom of the sages who formed this constitution; considering the

difficulties they had to encounter, resulting from the various local

prejudices and local interests of the different parts of the United

States, and the vast variety of opinions which the subject presented, it

was almost wonderful to conceive how they should have hit upon a system

so admirably calculated to protect and to promote the general interests,

when administered according to its original meaning and intention. He

could not go so far as to say it was perfect. He admitted, like other

human productions, it was stamped with the common fallibility of man.

That he wished, however, to see no radical changes in its principles. He

wished to hand it down to posterity with those amendments only which

experience should suggest, and which would grow out of the continually

varying state of the nation. He said it was not only remarkable for the

wisdom of its arrangements, but the correct and technical mode of

expression. The part of the section now to be examined, was an example

of the justice of both these remarks. The words are, "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."

The first part of the sentence respects the relationship between the

Executive and the Judiciary Departments. It respects judges or officers

of the courts who are appointed by the President. The last part of the

sentence respects the relationship between the Legislative and Judiciary

Departments. It respects the creation of offices, the fixing the

compensation of the officers or judges, and their continuance in office.

These are the peculiar attributes of the Legislative Department.

Accordingly, the most correct and technical words are used in relation

to both these objects. The term "hold their offices during good

behavior," relates merely to the Executive Department. The term "hold,"

is the common technical word used to convey the idea of tenure. Tenure

requires two parties. The one granting, the other holding or receiving

the grant. Let the inquiry be made, of whom do the judges hold? The

constitution furnishes the answer, of the President. One of the most

obvious rules in the construction of instruments of writing is, that the

whole of it must be taken together, and not one particular part by

itself. The following words will be found in the second section of the

second article of the constitution: "And he (to wit, the President)

shall nominate, and, by and with the advice and consent of the Senate,

shall appoint Ambassadors, other public Ministers and Consuls, Judges of

the Supreme Court, and all other officers of the United States, whose

appointments are not herein otherwise provided for, and which shall be

established by law." In the third section of the same article, are these

words: "And shall (to wit, the President) commission all the officers of

the United States." These three sentences contain the relationship

between the Executive and Judiciary Departments, so far as respects the

objects of the present discussion.

To ascertain the real meaning and import of these sentences, they should

be read in connection with each other, excluding therefrom all

intermediate words not immediately bearing on the subject. In that case

the constitution would read thus: "He (to wit, the President) shall

nominate and appoint the Judges of the Supreme Court, and all other

officers of the United States, and shall commission all the officers of

the United States. The judges both of the supreme and inferior courts

shall hold their offices during good behavior." It may now be asked, if

this case of the judges of the supreme and inferior courts be not an

obvious exception out of the general Presidential discretion of

appointing and commissioning all officers of the United States during

pleasure? After the Government has been in operation above twelve years,

and the principle of commissioning all Executive officers during

pleasure, has been practised upon during the whole of the period by the

Executive, as well as the Legislative Department, the propriety of that

practice is for the first time now become questionable. It is said that

the right to commission during pleasure, is by implication. It is

readily admitted that there are no express words in the constitution to

that effect; but the inference from the words which are there, is almost

as strong as the words themselves, if they had been inserted. The

President is authorized, without limitation, to "commission all the

officers of the United States." The question arises, by what tenure? The

reply is, according to his pleasure or discretion. It was not difficult

to foresee, that if the President was fully empowered to commission as

he pleased, he would please to commission during his pleasure. The

Legislature has no more control over an officer who holds an Executive

commission during the pleasure of the President, than over a Judicial

officer holding his office during good behavior. The remedy given by the

constitution being the same in both cases, to wit, impeachment. Nor is

there any reason why the office of the one should be less subject to the

discretion of the Legislature, than the office of the other; and it

seems to be universally agreed, that although the Legislature cannot

deprive an Executive officer of his office in any other way than by

impeachment, during the continuance of such office, yet the office

itself is always subject to be abolished. The same reasoning will hold

with equal force respecting a judge and a Judicial office. The reason

why the Executive is proscribed from the removal of a judge, is to

secure to the judge a complete independence of the President, who is not

responsible for the discharge of Judicial duties; but the removal is

perfectly correct in the case of an Executive officer, because the

President is highly responsible for the due discharge of Executive

duties. The Legislature is not responsible for either, and of course

stands in the same constitutional relation to both. This appears obvious

from furnishing to the Legislature the same means of removing both, as

will appear by the fourth section of the second article, in the

following words: "The President, Vice President, and all civil officers

of the United States, shall be removed from office by impeachment for,

and conviction of treason, bribery, or other high crimes or

misdemeanors." He now begged to call the attention of the committee

particularly to the last clause of the sentence, which ascertains the

constitutional connection between the Legislative and Judicial

Departments, so far as respects the limitation of the Legislative, in

the exercise of the power committed to it, for the organization of the

Judicial Department. He should place particular emphasis on these words

of the constitution in the exposition he proposed to make. The words

are: "And shall at stated times receive for their services a

compensation, which shall not be diminished during their continuance in

office." The first part of this section having given to Congress the

power of creating courts, ascertaining the number of judges, &c., these

last words may be considered as containing explanations and limitations

of the general power of Congress, as was the foregoing part of this

sentence a limitation of the general Executive power. And accordingly

the most correct terms are used for limiting Legislative discretion, and

explaining its objects; according to the words of this sentence, the

judge is to receive a compensation for his services. To whom are these

services to be rendered? To the people, for the benefit of the people.

Who is to judge of the necessity or utility of these services? The

constitution has ordained, that Congress, or, in other words, the

Representatives of the people, shall be the tribunal. Suppose there

should be no services required, none for the judge to perform, and that

Congress should so think and determine: is the judge entitled to

compensation? He is not. The condition of service for the benefit of the

people, is the express consideration upon which the compensation

accrues. No service is rendered, the competent tribunal says, there is

none required, of course no compensation accrues. The judge is entitled

to receive none. On this point, an obvious and most important difference

of opinion exists between the two sides of the committee. On one side it

is contended, that the office is the vested property of the judge,

conferred on him by his appointment, and that his good behavior is the

consideration of his compensation; so long, therefore, as his good

behavior exists, so long his office must continue in consequence of his

good behavior, and that his compensation is his property in virtue of

his office, and therefore cannot be taken away by any authority

whatever, although there may be no service for him to perform. On the

other side, it is contended that the good behavior is not the

consideration upon which the compensation accrues, but services rendered

for the public good; and that if the office is to be considered as a

property, it is a property held in trust for the benefit of the people,

and must therefore be held subject to that condition, of which Congress

is the constitutional judge. Mr. G. said, considering the boundary line

between these conflicting opinions to be the boundary line between the

offices held for public utility, and offices held for personal favor, he

could not bestow too much attention upon this part of the discussion;

for if the construction gentlemen contend for should prevail, in vain

have the framers of the constitution, with so much jealous

circumspection, erected so many ramparts against the introduction of

some of these offices in the Government of the United States. A sinecure

office is an office held without the condition of service; often for

past services already compensated; often for present favor, without the

condition of any service. For the purpose of excluding from the Federal

Government all sinecure offices, the sages who formed the constitution

have through every part of it connected services and compensation, and

they ought never to be separated in construction. The sixth section of

the first article is in these words: "The Senators and Representatives

shall receive a compensation for their services, to be ascertained by

law," &c., and so far has this principle of the rendition of service

been carried, that the service of the Senate and Representatives is to

be rendered every day, and unless they do daily render service, they are

not entitled to their day's compensation. In the first section of the

second article of the constitution, are these words: "The President

shall, at stated times, receive for his services a compensation," &c. In

the forty-first section of the act under which the judges claim their

compensation, are these words: "That each of the circuit judges of the

United States, to be appointed by virtue of this act, shall be allowed

as a compensation for his services," &c. These expressions all

demonstrate the importance of coupling the service and compensation of

office. But the jealous caution of the framers of the constitution did

not stop at choosing the best affirmative expression for excluding this

doctrine of sinecure offices, they also applied negative restraints.

In the ninth section of the first article of the constitution, are these

words, "No money shall be drawn from the Treasury but in consequence of

appropriations made by law." In the same section, "No title of nobility

shall be granted by the United States, and no person holding any office

of profit or trust under them, shall, without the consent of Congress,

accept of any present, emolument, office, or title, of any kind

whatever, from any King, Prince, or foreign State." If then services

rendered for the public benefit be the essential consideration, upon

which the compensation does accrue to the judges; if the Congress be the

proper tribunal for pronouncing upon the necessity or utility of such

service, and if they decide that no such service is necessary or useful;

the judge sustains no injury in not receiving the compensation, because

he does not comply with the condition on his part; nor does he sustain a

hardship thereby, because it must be presumed that he understood the

second conditions attached to his office at the time of his acceptance.

It has been admitted by all gentlemen, that Congress is the

constitutional tribunal for deciding respecting the services to be

performed. They admit that Congress may modify the courts, diminish or

add to their duties, alter the terms of their sessions, or make any

other arrangements respecting them which do not go to take away or

diminish their compensations. It is to be observed that there is not one

of these powers specified in the constitution; they are therefore

necessary inferences from the paramount power "to ordain and establish,"

and the power of repeal, or to take away all the services to be

performed, is as necessary an inference as either of the others, and has

uniformly resulted from every other specified power in the constitution.

From this part of the sentence, therefore, it is deducible, that the

only restraint upon the general power given to Congress in the first

part of the section to ordain and establish courts, is, that the

compensations of the judges should not be lessened during their

continuance in office; not during their good behavior. And in this part

of the sentence the correct phraseology of the constitution is worthy of

observation. In speaking of the Executive attribute, to wit, the

appointing and commissioning officers, the term _good behavior_ is used.

In speaking of the Legislative attribute, to wit, the creation of the

offices and fixing compensations, the term _during their continuance in

office_ is used. The reason for this variation of expression is obvious.

It was known that the office might be discontinued, and the judge

continue to behave well; the limitation was therefore applied to the

office, and not the good behavior, because if the office should be

discontinued, which is clearly implied in this expression, it was not

the intention of the constitution that the compensation should be

received, no service in that event being to be rendered. From this

interpretation of the constitution, all of the departments are preserved

in the due exercise of their respective functions for the general good,

without any of the mischievous and absurd consequences resulting from

the opposite construction. It is admitted that the first part of this

section expressly vests Congress with the general power to ordain and

establish courts; and, if there had been no other restriction, the

consequent power to unordain, or abolish. The restriction relied upon is

not a restriction in express words: there are no words in the

constitution prohibiting Congress from repealing a law for organizing

courts; the restraint contended for, therefore, is by implication, and

that implication, to say the least, not expressly connected with any

Legislative attribute. Is it right, is it a correct interpretation, that

when a power is given in express words for the most important purposes,

that it should be restrained or prohibited by implication? Can so much

inattention and folly be attributed to the framers of the constitution,

as would result from the supposition that if it was their intention that

a law growing out of one of the specified powers, in contradistinction

to all others, should be irrepealable when once passed, that so

extraordinary a principle would be left to mere implication? Such a

supposition would be the highest injustice to the superior intelligence

and patriotism of those gentlemen, manifested in every other part of the

instrument. No, sir, they would have made notes of admiration: they

would have used every mark, adopted every caution, to have arrested and

fixed the attention of the Legislature to so extraordinary a principle.

They would have said, Legislators! Be circumspect! Be cautious! Be calm!

Be deliberate! Be wise! Be wise not only for the present, but be wise

for posterity! You are now about to tread upon holy ground. The law you

are now about to pass, is irrepealable! Irrevokable! We are so enamored

with the salutary and practical independence of the English Judiciary

system, that in infusing its principle into our constitution, we have

stamped it with the proverbial folly of the Medes and Persians! If this

principle had been introduced into the constitution in express words, it

would have formed an unfortunate contrast to all other parts of the

instrument; yet gentlemen make no difficulty in introducing that

principle by construction, which would have appeared so stupid and

absurd if written in express words in the body of the instrument. But

there is no such language in the constitution. Let us see what is the

language of that instrument, "The Judicial power of the United States

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

Congress may from time to time ordain and establish." Here, then,

instead of cautioning the Legislature that a law for the organization of

courts, when passed, can never be repealed, it contains an invitation to

a revision from time to time. It contains an intimation, that the

subject is new and difficult, and an injunction to ordain and establish

your courts from time to time, according to the results, which an

experience of the system alone could suggest. The gentleman from

Pennsylvania (Mr. HEMPHILL) observed that the character of

irrepealability was not exclusively attached to this law, and attempted

to furnish instances of other laws of the same character. He instanced a

law for the admission of a new State into the Union.

The gentleman from Kentucky (Mr. DAVIS) had given a proper reply to that

remark; the strongest instance the gentleman gave, was of a law

executed. After the new State is remitted into the Union, in virtue of a

law for that purpose, the object of the law is answered. The State

admitted has no stipulated duties to perform on its part, no services to

render; in the case before the committee the law is in a state of

execution, and the judges have services to render on their part which

the competent tribunals may determine to be neither useful nor

necessary. A law for the appropriation of money to a given object, may

be adduced is an instance; the money is applied; its object is answered;

the law may be said to be irrepealable, or, in other words, the repeal

would produce no effect. That is not the case of the law in question.

Mr. G. said he had no doubt but that the framers of the constitution had

particular reference to the British act of Parliament of William III.

for the establishment of the independence of the judges in that country,

in framing the section for the establishment of the Judicial Department

in the United States; and it is not a little remarkable, that whilst

gentlemen in one breath speak of the independence of the English judges,

as the boast and glory of that nation, in the next breath they tell us

that by the repeal of the present act, the independence of the judges

here would be immolated. Let this subject be examined. In the third

chapter of the first book of Blackstone's Commentaries, the independence

of the English Judiciary is fully explained. He begged to read the

exposition of that commentator on that subject.

"And, in order to maintain both the dignity and

independence of the judges of the superior courts, it is

enacted by the statute, 13 W. III. c. 2, that their

commissions shall be made (not, as formerly, _durante bene

placito_, but) _quam diu bene se gesserint_, and their

salaries ascertained and established; but that it may be

lawful to remove them on the address of both Houses of

Parliament. And now, by the noble improvements of that law

in the statute of Geo. III. c. 23, enacted at the earnest

recommendation of the King himself, from the Throne, the

judges are continued in their offices during their good

behavior, notwithstanding any demise of the Crown, (which

was formerly held immediately to vacate their seats,) and

their full salaries are absolutely secured to them during

the continuance of their commissions. His Majesty having

been pleased to declare, that "he looked upon the

independence and uprightness of the judges, as essential to

the impartial administration of justice; as one of the best

securities of the rights and liberties of his subjects; and

as the most conducive to the honor of the Crown.""

Now, sir, under the doctrine contended for by the repeal of this law,

let us see whether the judges of the United States are not more

independent than the judges of England. In the first place, Congress

have the power of originating, abolishing, modifying, &c., the courts

here. The Parliament in England have the same power there. Congress

cannot remove a judicial officer from his office so long as the office

itself is deemed useful, except by impeachment, two-thirds of the Senate

being necessary to a conviction. In England, judges can be removed from

their offices, although the offices may be deemed useful, by an address

of the majority of the two Houses of Parliament. Here then is one

essential advantage in favor of the independence of the judges of the

United States. Congress cannot diminish the compensation of the judges

here during their continuance in office. In England, the Parliament may

diminish the compensation of the judges, at their discretion, during

their continuance in office. Here, then, is another obvious advantage in

favor of the independence of the judges of the United States; whence is

it, then, that we hear of the independence of the English judiciary, as

being the boast and glory of that country, and with justice, too, and at

the same time hear the cry of the immolation of the independence of the

judges of the United States, when, under the interpretation of the

constitution by the favorers of the repeal, the judges here are more

independent than the English judges? It can have no other object than to

excite a popular clamor, which, if excited at all, can have only a

momentary effect, and will be dissipated as soon as the subject shall be

thoroughly examined and understood. But it appeared to him, that if

gentlemen really do value the independence of the judges, they have

taken an unfortunate ground in the interpretation of the constitution.

Under their construction, the judges may be placed not only in a

dependent, but a ludicrous point of view.

Gentlemen admit that Congress may constitutionally increase or diminish

the duties of judges; give or take away jurisdiction; fix the times of

holding courts, &c., saving therefrom the salaries of the judges. Under

this admission, Congress may postpone the sessions of the courts for

eight or ten years, and establish others, to whom they could transfer

all the powers of the existing courts. In this case, the judges would be

held up to the people as pensioners, receiving their money and rendering

no service in return; or Congress might convert them into mere courts

of piepoudre, assigning them the most paltry duties to perform, and keep

them continually in session, in inconvenient places; whilst new courts

could be erected to perform all the essential business of the nation.

This would be taking down the high pretensions assigned to the judges by

the gentleman from North Carolina, (Mr. HENDERSON,) of being formed into

a permanent corps for the purpose of protecting the people against their

worst enemies, themselves; and degrading them into pitiful courts of

piepoudre, rendering little service and receiving large compensations.

And this would be the case, if party purposes were the object, and not

the general good. According to his construction, these absurd results

could not take place, unless by a virtual breach of the constitution.

Because, he contended, that service and compensation were correlative

terms; and that there ought always to be a due apportionment of service

to compensation. This he considered as the plain and sound

interpretation of the constitution, and the moment it is departed from,

infinite absurdities ensue. He intended to have taken another view of

this subject, as it respects the relative influence of the law of the

last session, and the proposed repeal upon this question; but the

gentleman from Massachusetts (Mr. BACON) has put this subject in so much

stronger point of view than he could do, that he would refer to his

remarks thereupon, observing only that he had no doubt but that the law

of last session, now proposed to be repealed, was, in every respect, as

much opposed to the doctrine of gentlemen, as the contemplated repeal

could be. The sections of the law particularly alluded to, are the

twenty-fourth, in these words, "and be it further enacted, that the

district courts of the United States, in and for the districts of

Tennessee and Kentucky, shall be and are hereby abolished," and the

twenty-seventh, in these words, "and be it further enacted, that the

circuit courts of the United States, heretofore established, shall cease

and be abolished."

Mr. G. concluded by observing that, upon the whole view of the subject,

feeling the firmest conviction that there is no constitutional

impediment in the way of repealing the act in question, upon the most

fair and candid interpretation of the constitution:--believing that

principles advanced in opposition, go directly to the destruction of the

fundamental principle of the constitution, the responsibility of all

public agents to the people--that they go to the establishment of a

permanent corporation of individuals invested with ultimate censorial

and controlling power over all the departments of the Government, over

legislation, execution, and decision, and irresponsible to the people;

believing that these principles are in direct hostility to the great

principle of Representative Government; believing that the courts

formerly established, were fully competent to the business they had to

perform, and that the present courts are useless, unnecessary, and

expensive; believing that the Supreme Court has heretofore discharged

all the duties assigned to it in less than one month in the year, and

that its duties could be performed in half that time; considering the

compensations of the judges to be among the highest given to any of the

highest officers of the United States for the services of the whole

year; considering the compensations of all the judges greatly exceeding

the services assigned them, as well as considering all the circumstances

attending the substitution of the new system for the old one, by

increasing the number of judges, and compensations, and lessening their

duties by the distribution of the business into a great number of hands,

&c., while acting under these impressions, he should vote against the

motion now made for striking out the first section of the repealing

bill.

FRIDAY, February 19.

_Judiciary System._

The House again resolved itself into a Committee of the whole House on

the bill sent from the Senate, entitled "An act to repeal certain acts

respecting the organization of the Courts of the United States, and for

other purposes."

Mr. BAYARD.--Mr. Chairman, I must be allowed to express my surprise at

the course pursued by the honorable gentleman from Virginia, (Mr.

GILES,) in the remarks which he has made on the subject before us. I had

expected that he would have adopted a different line of conduct. I had

expected it as well from that sentiment of magnanimity which ought to

have been inspired by a sense of the high ground he holds on the floor

of this House, as from the professions of a desire to conciliate, which

he has so repeatedly made during the session. We have been invited to

bury the hatchet, and brighten the chain of peace. We were disposed to

meet on middle ground. We had assurances from the gentleman that he

would abstain from reflections on the past, and his only wish was that

we might unite in future in promoting the welfare of our common country.

We confided in the gentleman's sincerity, and cherished the hope that,

if the divisions of party were not banished from the House, its spirit

would be less intemperate. Such were our impressions, when the mask was

suddenly thrown aside, and we saw the torch of discord lighted and

blazing before our eyes. Every effort has been made to revive the

animosities of the House, and inflame the passions of the nation. I am

at no loss to perceive why this course has been pursued. The gentleman

has been unwilling to rely upon the strength of his subject, and has

therefore determined to make the measure a party question. He has

probably secured success, but would it not have been more honorable and

more commendable to have left the decision of a great constitutional

question to the understanding, and not to the prejudices of the House?

It was my ardent wish to discuss the subject with calmness and

deliberation, and I did intend to avoid every topic which could awaken

the sensibility of party. This was my temper and design when I took my

seat yesterday. It is a course at present we are no longer at liberty to

pursue. The gentleman has wandered far, very far, from the points of the

debate, and has extended his animadversions to all the prominent

measures of the former administrations. In following him through his

preliminary observations, I necessarily lose sight of the bill upon your

table.

The gentleman commenced his strictures with the philosophic observation,

that it was the fate of mankind to hold different opinions as to the

form of government which was preferable. That some were attached to the

monarchal, while others thought the republican more eligible. This, as

an abstract remark, is certainly true, and could have furnished no

ground of offence, if it had not evidently appeared that an allusion was

designed to be made to the parties in this country. Does the gentleman

suppose that we have a less lively recollection than himself of the oath

which we have taken to support the constitution; that we are less

sensible of the spirit of our Government, or less devoted to the wishes

of our constituents? Whatever impression it might be the intention of

the gentleman to make, he does not believe that there exists in this

country an anti-republican party. He will not venture to assert such an

opinion on the floor of this House. That there may be a few individuals

having a preference for monarchy is not improbable; but will the

gentleman from Virginia, or any other gentleman, affirm, in his place,

that there is a party in the country who wish to establish a monarchy?

Insinuations of this sort belong not to the Legislature of the Union.

Their place is an election ground or an alehouse. Within these walls

they are lost; abroad, they have an effect, and I fear are still capable

of abusing the popular credulity.

We were next told of the parties which have existed, divided by the

opposite views of promoting the Executive power and guarding the rights

of the people. The gentleman did not tell us in plain language, but he

wished it to be understood, that he and his friends were the guardians

of the people's rights, and that we were the advocates of Executive

power.

I know that this is the distinction of party which some gentlemen have

been anxious to establish; but this is not the ground on which we

divide. I am satisfied with the constitutional powers of the Executive,

and never wished nor attempted to increase them; and I do not believe

that gentlemen on the other side of the House ever had a serious

apprehension of danger from an increase of Executive authority. No, sir,

our views as to the powers which do and ought to belong to the General

and State Governments, are the true sources of our divisions. I

co-operate with the party to which I am attached, because I believe

their true object and end, is an honest and efficient support of the

General Government, in the exercise of the legitimate powers of the

constitution.

I pray to God I may be mistaken in the opinion I entertain as to the

designs of gentlemen to whom I am opposed. Those designs I believe

hostile to the powers of this Government. State pride extinguishes a

national sentiment. Whatever is taken from this Government is given to

the States.

The ruins of this Government aggrandize the States. There are States

which are too proud to be controlled; whose sense of greatness and

resource renders them indifferent to our protection, and induces a

belief, that if no General Government existed, their influence would be

more extensive, and their importance more conspicuous. There are

gentlemen who make no secret of an extreme point of depression, to which

the Government is to be sunk. To that point we are rapidly progressing.

But I would beg gentlemen to remember, that human affairs are not to be

arrested in their course, at artificial points. The impulse now given

may be accelerated by causes at present out of view. And when those who

now design well, wish to stop, they may find their powers unable to

resist the torrent. It is not true that we ever wished to give a

dangerous strength to Executive power. While the Government was in our

hands, it was our duty to maintain its constitutional balance, by

preserving the energies of each branch. There never was an attempt to

vary the relation of its powers. The struggle was to maintain the

constitutional powers of the Executive. The wild principles of French

liberty were scattered through the country. We had our Jacobins and

disorganizers. They saw no difference between a King and a President,

and as the people of France had put down their King, they thought the

people of America ought to put down their President. They who considered

the constitution as securing all the principles of rational and

practical liberty, who were unwilling to embark upon the tempestuous sea

of revolution, in pursuit of visionary schemes, were denounced as

monarchists. A line was drawn between the Government and the people, and

the friends of the Government were marked as the enemies of the people.

I hope, however, that the Government and the people are now the same;

and I pray to God that what has been frequently remarked may not in this

case be discovered to be true, that they who have the name of people the

most often in their mouths, have their true interests the most seldom at

their hearts.

The honorable gentleman from Virginia wandered to the very confines of

the Federal Administration, in search of materials the most inflammable

and most capable of kindling the passions of his party.

He represents the Government as seizing the first moment which presented

itself to create a dependent moneyed interest, ever devoted to its

views. What are we to understand by this remark of the gentleman? Does

he mean to say that Congress did wrong in funding the public debt? Does

he mean to say that the price of our liberty and independence ought not

to have been paid? Is he bold enough to denounce this measure as one of

the Federal victims marked for destruction? Is it the design to tell us

that its day has not yet come, but is approaching; and that the funding

system is to add to the pile of Federal ruins? Do I hear the gentleman

say we will reduce the army to a shadow; we will give the navy to the

worms; the mint, which presented the people with the emblems of their

liberty, and of their sovereignty, we will abolish; the revenue shall

depend upon the winds and waves; the judges shall be made our creatures,

and the great work shall be crowned and consecrated by relieving the

country from an odious and oppressive public debt? These steps, I

presume, are to be taken in progression. The gentleman will pause at

each, and feel the public pulse. As the fever increases he will proceed,

and the moment of delirium will be seized to finish the great work of

destruction.

The assumption of the State debts has been made an article of distinct

crimination. It has been ascribed to the worst motives--to a design of

increasing a dependent moneyed interest. Is it not well known that those

debts were part of the price of our Revolution? That they rose in the

exigency of our affairs, from the efforts of the particular States, at

times when the Federal arm could not be extended to their relief? Each

State was entitled to the protection of the Union, the defence was a

common burden, and every State had a right to expect that the expenses

attending its individual exertions in the general cause, would be

reimbursed from the public purse. I shall be permitted further to add,

that the United States, having absorbed the sources of State revenue,

except direct taxation, which was required for the support of the State

governments, the assumption of these debts was necessary to save some of

the States from bankruptcy.

The internal taxes are made one of the crimes of the Federal

Administration. They were imposed, says the gentleman, to create a host

of dependents on Executive favor. This supposes the past administrations

to have been not only very wicked, but very weak. They laid taxes in

order to strengthen their influence. Who is so ignorant as not to know,

that the imposition of a tax would create a hundred enemies for one

friend? The name of excise was odious; the details of collection were

unavoidably expensive, and it was to operate upon a part of the

community least disposed to support public burdens, and most ready to

complain of their weight. A little experience will give the gentleman a

new idea of the patronage of this Government. He will find it not that

dangerous weapon in the hands of the administration which he has

heretofore supposed it; he will probably discover that the poison is

accompanied by its antidote, and that an appointment of the Government,

while it gives to the administration one lazy friend, will raise up

against it ten active enemies. No! The motive ascribed for the

imposition of the internal taxes is as unfounded as it is uncharitable.

The Federal Administration, in creating burdens to support the credit of

the nation, and to supply the means of its protection, knew that they

risked the favor of those upon whom their power depended. They were

willing to be the victims when the public good required.

The duties on imports and tonnage furnished a precarious revenue--a

revenue at all times exposed to deficiency, from causes beyond our

reach. The internal taxes offered a fund less liable to be impaired by

accident--a fund which did not rob the mouth of labor, but was derived

from the gratification of luxury. These taxes are an equitable

distribution of the public burdens. Through this medium the Western

country is enabled to contribute something to the expenses of a

Government which has expended and daily expends such large sums for its

defence. When these taxes were laid they were indispensable. With the

aid of them it has been difficult to prevent an increase of the public

debt. And notwithstanding the fairy prospects which now dazzle our eyes,

I undertake to say, if you abolish them this session, you will be

obliged to restore them or supply their place by a direct tax before the

end of two years. Will the gentleman say, that the direct tax was laid

in order to enlarge the bounds of patronage? Will he deny that this was

a measure to which we had been urged for years by our adversaries,

because they foresaw in it the ruin of Federal power? My word for it, no

administration will ever be strengthened by a patronage united with

taxes which the people are sensible of paying.

We were next told, that to get an army an Indian war was necessary. The

remark was extremely bald, as the honorable gentleman did not allege a

single reason for the position. He did not undertake to state that it

was a wanton war, or provoked by the Government. He did not even venture

to deny, that it was a war of defence, and entered into in order to

protect our brethren on the frontiers from the bloody scalping-knife and

murderous tomahawk of the savage. What ought the government to have

done? Ought they to have estimated the value of the blood which probably

would be shed, and the amount of the devastation likely to be committed

before they determined on resistance? They raised an army, and after

great expense and various fortune, they have secured the peace and

safety of the frontiers. But why was the army mentioned on this

occasion, unless to fore-warn us of the fate which awaits them, and to

tell us that their days are numbered? I cannot suppose that the

gentleman mentioned this little army, distributed on a line of three

thousand miles, for the purpose of giving alarm to three hundred

thousand free and brave yeomanry, ever ready to defend the liberties of

the country.

The honorable gentleman proceeded to inform the committee, that the

Government, availing itself of the depredations of the Algerines,

created a navy. Did the gentleman mean to insinuate, that this war was

invited by the United States? Has he any documents or proof to render

the suspicion colorable? No, sir, he has none. He well knows that the

Algerine aggressions were extremely embarrassing to the Government. When

they commenced, we had no marine force to oppose to them. We had no

harbors or places of shelter in the Mediterranean. A war with these

pirates could be attended with neither honor nor profit. It might cost a

great deal of blood, and in the end it might be feared that a contest so

far from home, subject to numberless hazards and difficulties, could not

be maintained. What would gentlemen have had the Government to do? I

know there are those who are ready to answer: abandon the Mediterranean

trade. But would this have done? The corsairs threatened to pass the

Straits, and were expected in the Atlantic. Nay, sir, it was thought

that our very coasts would not have been secure.

Will gentlemen go further, and say that the United States ought to

relinquish their commerce. It has been said that we ought to be

cultivators of the earth, and make the nations of Europe our carriers.

This is not an occasion to examine the solidity of this opinion; but I

will only ask, admitting the administration were disposed to turn the

pursuits of the people of this country from the ocean to the land,

whether there is a power in the Government, or whether there would be if

we were as strong as the Government of Turkey, or even of France, to

accomplish the object? With a sea-coast of seventeen hundred miles, with

innumerable harbors and inlets, with a people enterprising beyond

example, is it possible to say, you will have no ships or sailors, nor

merchants? The people of this country will never consent to give up

their navigation, and every administration will find themselves

constrained to provide means to protect their commerce.

In respect to the Algerines, the late administration were singularly

unfortunate. They were obliged to fight or pay them. The true policy was

to hold a purse in one hand and a sword in the other. This was the

policy of the Government. Every commercial nation in Europe was

tributary to those petty barbarians. It was not esteemed disgraceful. It

was an affair of calculation, and the administration made the best

bargain in their power. They have heretofore been scandalized for paying

tribute to a pirate, and now they are criminated for preparing a few

frigates to protect our citizens from slavery and chains! Sir, I believe

on this and many other occasions, if the finger of Heaven had pointed

out a course, and the Government had pursued it, yet that they would not

have escaped the censure and reproaches of their enemies.

We were told that the disturbances in Europe were made a pretext for

augmenting the army and navy. I will not, Mr. Chairman, at present go

into a detailed view of the events which compelled the Government to put

on the armor of defence, and to resist by force the French aggressions.

All the world know the efforts which were made to accomplish an amicable

adjustment of differences with that power. It is enough to state, that

ambassadors of peace were twice repelled from the shores of France with

ignominy and contempt. It is enough to say, that it was not till after

we had drunk the cup of humiliation to the dregs, that the national

spirit was roused to a manly resolution, to depend only on their God and

their own courage for protection. What, sir, did it grieve the gentleman

that we did not crouch under the rod of the Mighty Nation, and, like the

petty powers of Europe, tamely surrender our independence? Would he have

had the people of the United States relinquish without a struggle those

liberties which had cost so much blood and treasure? We had not, sir,

recourse to arms, till the mouths of our rivers were choked with French

corsairs; till our shores, and every harbor, were insulted and violated;

till half our commercial capital had been seized, and no safety existed

for the remainder but the protection of force. At this moment a noble

enthusiasm electrized the country; the national pulse beat high, and we

were prepared to submit to every sacrifice, determined only that our

independence should be the last. At that time an American was a proud

name in Europe; but I fear, much I fear, that in the course we are now

likely to pursue, the time will soon arrive when our citizens abroad

will be ashamed to acknowledge their country.

The measures of 1798 grew out of the public feelings; they were loudly

demanded by the public voice. It was the people who drove the Government

to arms, and not (as the gentleman expressed it) the Government which

pushed the people to the X, Y, Z of the political designs before they

understood the A, B, C of their political principles.

But what, sir, did the gentleman mean by his X, Y, Z? I must look for

something very significant--something more than a quaintness of

expression, or a play upon words--in what falls from a gentleman of his

learning and ability. Did he mean that the dispatches which contained

those letters were impostures, designed to deceive and mislead the

people of America--intended to rouse a false spirit not justified by

events? Though the gentleman had no respect for some of the characters

of that embassy; though he felt no respect for the Chief Justice, or the

gentleman appointed from South Carolina--two characters as pure, as

honorable, as exalted, as any the country can boast of--yet I should

have expected that he would have felt some tenderness for Mr. Gerry, in

whom his party had since given proofs of undiminished confidence. Does

the gentleman believe that Mr. Gerry would have joined in the deception,

and assisted in fabricating a tale which was to blind his countrymen,

and to enable the Government to destroy their liberties? Sir, I will

not avail myself of the equivocations or confessions of Talleyrand

himself; I say these gentlemen will not dare publicly to deny what is

attested by the hand and seal of Mr. Gerry.

The truth of these despatches admitted, what was your Government to do?

Give us, say the Directory, 1,200,000 livres for our own purse, and

purchase $15,000,000 of Dutch debt, (which was worth nothing,) and we

will receive your Ministers, and negotiate for peace.

It was only left to the Government to choose between an unconditional

surrender of the honor and independence of the country, or a manly

resistance. Can you blame, sir, the Administration for a line of conduct

which has reflected on the nation so much honor, and to which, under

God, it owes its present prosperity?

These are the events of the General Government which the gentleman has

reviewed in succession, and endeavored to render odious or suspicious.

For all this I could have forgiven him, but there is one thing for which

I will not, I cannot forgive him--I mean this attempt to disturb the

ashes of the dead; to disturb the ashes of the great and good

WASHINGTON! Sir, I might degrade by attempting to eulogize this

illustrious character. The work is infinitely beyond my powers. I will

only say, that as long as exalted talents and virtues confer honor among

men, the name of WASHINGTON will be held in veneration.

After, Mr. Chairman, the honorable member had exhausted one quiver of

arrows against the late Executive, he opened another, equally poisoned,

against the Judiciary. He has told us, sir, that when the power of the

Government was rapidly passing from Federal hands--after we had heard

the thundering voice of the people which dismissed us from their

service--we erected a Judiciary, which we expected would afford us the

shelter of an inviolable sanctuary. The gentleman is deceived. We knew

better, sir, the characters who were to succeed us, and we knew that

nothing was sacred in the eyes of infidels. No, sir, I never had a

thought that any thing belonging to the Federal Government was holy in

the eyes of those gentlemen. I could never, therefore, imagine that a

sanctuary could be built up which would not be violated. I believe these

gentlemen regard public opinion, because their power depends upon it;

but I believe they respect no existing establishment of the Government;

and if public opinion could be brought to support them, I have no doubt

they would annihilate the whole. I shall at present only say further, on

this head, that we thought the reorganization of the Judicial system a

useful measure, and we consider it as a duty to employ the remnant of

our power to the best advantage of our country.

The honorable gentleman expressed his joy that the constitution had at

last become sacred in our eyes: that we formerly held that it meant

every thing or nothing. I believe, sir, that the constitution formerly

appeared different in our eyes from what it appears in the eyes of the

dominant party. We formerly saw in it the principles of a fair and

goodly creation. We looked upon it as a source of peace, of safety, of

honor, and of prosperity to the country. But now the view is changed; it

is the instrument of wild and dark destruction; it is a weapon which is

to prostrate every establishment to which the nation owes the unexampled

blessings which it enjoys.

The present state of the country is an unanswerable commentary upon our

construction of the constitution. It is true that we made it mean much;

and hope, sir, we shall not be taught by the present Administration that

it can mean even worse than nothing.

The gentleman has not confined his animadversions to the individual

establishment, but has gone so far as to make the judges the subject of

personal invective. They have been charged with having transgressed the

bounds of Judicial duty, and become the apostles of a political sect. We

have heard of their travelling about the country for little other

purpose than to preach the Federal doctrines to the people.

Sir, I think a judge should never be a partisan. No man would be more

ready to condemn a judge who carried his political prejudices or

antipathies on the bench. But I have still to learn that such a charge

can be sustained against the judges of the United States.

The constitution is the supreme law of the land, and they have taken

pains, in their charges to grand juries, to unfold and explain its

principles. Upon similar occasions they have enumerated the laws which

compose our criminal code, and when some of those laws have been

denounced by the enemies of the Administration as unconstitutional, the

judges may have felt themselves called upon to express their judgments

upon that point, and the reasons of their opinions.

So far, but no farther, I believe, the judges have gone. In going thus

far, they have done nothing more than faithfully discharge their duty.

But if, sir, they have offended against the constitution or laws of the

country, why are they not impeached? The gentleman now holds the sword

of justice. The judges are not a privileged order; they have no shelter

but their innocence. But, in any view, are the sins of the former judges

to be fastened upon the new Judicial system? Would you annihilate a

system because some men under part of it had acted wrong? The

constitution has pointed out a mode of punishing and removing the men,

and does not leave this miserable pretext for the wanton exercise of

powers which is now contemplated.

The honorable member has thought himself justified in making a charge of

a serious and frightful nature against the judges. They have been

represented going about searching out victims of the Sedition law. But

no fact has been stated; no proof has been adduced, and the gentleman

must excuse me for refusing my belief to the charge, till it is

sustained by stronger and better ground than assertion.

If, however, Mr. Chairman, the eyes of the gentlemen are delighted with

victims, if objects of misery are grateful to his feelings, let me turn

his view from the walks of the judges to the track of the present

Executive. It is in this path we see the real victims of stern,

uncharitable, unrelenting power. It is here, sir, we see the soldier who

fought the battles of the Revolution, who spilt his blood and wasted his

strength to establish the independence of his country, deprived of the

reward of his services, and left to pine in penury and wretchedness. It

is along this path that you may see helpless children crying for bread,

and gray hairs sinking in sorrow to the grave! It is here that no

innocence, no merit, no truth, no services, can save the unhappy sectary

who does not believe in the creed of those in power. I have been forced

upon this subject, and before I leave it, allow me to remark, that

without inquiring into the right of the President to make vacancies in

office during the recess of the Senate, but admitting the power to

exist, yet that it never was given by the constitution to enable the

Chief Magistrate to punish the insults, to revenge the wrongs, or to

indulge the antipathies of the man. If the discretion exists, I have no

hesitation in saying that it is abused when exercised from any other

motives than the public good. And when I see the will of a President

precipitating from office men of probity, knowledge, and talents,

against whom the community has no complaint, I consider it as a wanton

and dangerous abuse of power. And when I see men who have been the

victims of this abuse of power, I view them as the proper objects of

national sympathy and commiseration.

Among the causes of impeachment against the judges, is their attempt to

force the sovereignties of the States to bow before them. We have heard

them called an ambitious body politic; and the fact I allude to has been

considered as full proof of the inordinate ambition of the body.

Allow me to say, sir, the gentleman knows too much not to know that the

judges are not a body politic. He supposed, perhaps, there was an odium

attached to the appellation, which it might serve his purposes to

connect with the judges. But, sir, how do you derive any evidence of the

ambition of the judges from their decision that the States under our

Federal compact were compellable to do justice? Can it be shown, or even

said, that the judgment of the court was a false construction of the

constitution? The policy of later times on this point has altered the

constitution, and, in my opinion, has obliterated its fairest features.

I am taught by my principles that no power ought to be superior to

justice. It is not that I wish to see the States humbled in dust and

ashes; it is not that I wish to see the pride of any man flattered by

their degradation; but it is that I wish to see the great and the small,

the sovereign and the subject, bow at the altar of justice, and submit

to those obligations from which the Deity himself is not exempt. What

was the effect of this provision in the constitution? It prevented the

States being the judges in their own cause, and deprived them of the

power of denying justice. Is there a principle of ethics more clear than

that a man ought not to be a judge in his own cause, and is not the

principle equally strong when applied not to one man but to a collective

body? It was the happiness of our situation which enabled us to force

the greatest State to submit to the yoke of justice, and it would have

been the glory of the country in the remotest times, if the principle in

the constitution had been maintained. What had the States to dread?

Could they fear injustice when opposed to a feeble individual? Has a

great man reason to fear from a poor one? And could a potent State be

alarmed by the unfounded claim of a single person? For my part I have

always thought that an independent tribunal ought to be provided to

judge on the claims against this Government. The power ought not to be

in our own hands. We are not impartial, and are therefore liable,

without our knowledge, to do wrong. I never could see why the whole

community should not be bound by as strong an obligation to do justice

to an individual, as one man is bound to do it to another.

In England the subject has a better chance for justice against the

Sovereign than in this country a citizen has against a State. The Crown

is never its own arbiter, and they who sit in judgment have no interest

in the event of their decision.

The judges, sir, have been criminated for their conduct in relation to

the Sedition act, and have been charged with searching for victims who

were sacrificed under it. The charge is easily made, but has the

gentleman the means of supporting it? It was the evident design of the

gentleman to attach the odium of the Sedition law to the Judiciary; on

this score the Judges are surely innocent. They did not pass the act;

the Legislature made the law, and they were obliged by their oaths to

execute it. The judges decided the law to be constitutional, and I am

not now going to agitate the question. I did hope, when the law passed,

that its effect would be useful. It did not touch the freedom of speech,

and was designed only to restrain the enormous abuses of the press. It

went no farther than to punish malicious falsehoods, published with the

wicked intention of destroying the Government. No innocent man ever did

or could have suffered under the law. No punishment could be inflicted

till a jury was satisfied that a publication was false, and that the

party charged, knowing it to be false, had published it with an evil

design.

The misconduct of the judges, however, on this subject, has been

considered by the gentleman the more aggravated, by an attempt to extend

the principles of the Sedition act, by an adoption of those of the

common law. Connected with this subject, such an attempt was never made

by the judges. They have held, generally, that the Constitution of the

United States was predicated upon an existing common law. Of the

soundness of that opinion, I never had a doubt. I should scarcely go too

far, were I to say, that, stripped of the common law, there would be

neither constitution nor Government. The constitution is unintelligible

without reference to the common law. And were we to go into our courts

of justice with the mere statutes of the United States, not a step could

be taken, not even a contempt could be punished. Those statutes

prescribe no forms of pleadings; they contain no principles of evidence;

they furnish no rule of property. If the common law does not exist in

most cases, there is no law but the will of the judge.

I have never contended that the whole of the common law attached to the

constitution, but only such parts as were consonant to the nature and

spirit of our Government. We have nothing to do with the law of the

Ecclesiastical Establishment, nor with any principle of monarchical

tendency. What belongs to us, and what is unsuitable, is a question for

the sound discretion of the judges. The principle is analogous to one

which is found in the writings of all jurists and commentators. When a

colony is planted, it is established subject to such parts of the law of

the mother country as are applicable to its situation. When our

forefathers colonized the wilderness of America, they brought with them

the common law of England. They claimed it as their birthright, and they

left it as the most valuable inheritance to their children. Let me say,

that this same common law, now so much despised and vilified, is the

cradle of the rights and liberties which we now enjoy. It is to the

common law we owe our distinction from the colonists of France, of

Portugal, and of Spain. How long is it since we have discovered the

malignant qualities which are now ascribed to this law? Is there a State

in the Union which has not adopted it, and in which it is not in force?

Why is it refused to the Federal Constitution? Upon the same principle

that every power is denied which tends to invigorate the Government.

Without this law the constitution becomes, what perhaps many gentlemen

wish to see it, a dead letter.

For ten years it has been the doctrine of our courts, that the common

law was in force, and yet can gentlemen say, that there has been a

victim who has suffered under it? Many have experienced its protection,

none can complain of its oppression.

In order to demonstrate the aspiring ambition of this body politic, the

Judiciary, the honorable gentleman stated with much emphasis and feeling

that the judges had been hardy enough to send their mandate into the

Executive cabinet. Was the gentleman, sir, acquainted with the fact when

he made this statement? It differs essentially from what I know I have

heard upon the subject. I shall be allowed to state the fact.

Several commissions had been made out by the late Administration for

justices of the peace of this Territory. The commissions were complete;

they were signed and sealed, and left with the clerks of the office of

State to be handed to the persons appointed. The new Administration

found them on the Clerk's table, and thought proper to withhold them.

These officers are not dependent on the will of the President. The

persons named in the commissions considered that their appointments were

complete, and that the detention of their commissions was a wrong, and

not justified by the legitimate authority of the Executive. They applied

to the Supreme Court for a rule upon the Secretary of State, to show

cause why a mandamus should not issue, commanding him to deliver up the

commissions. Let me ask, sir, what could the judges do? The rule to show

cause was a matter of course upon a new point, at least doubtful. To

have denied it, would have been to shut the doors of justice against the

parties. It concludes nothing, neither the jurisdiction nor the

regularity of the act. The judges did their duty; they gave an honorable

proof of their independence. They listened to the complaint of an

individual against your President, and have shown themselves disposed to

grant redress against the greatest man in the Government. If a wrong has

been committed, and the constitution authorizes their interference, will

gentlemen say that the Secretary of State, or even the President, is not

subject to law? And if they violate the law, where can we apply for

redress but to our courts of justice? But, sir, it is not true that the

judges issued their mandate to the Executive; they have only called upon

the Secretary of State to show them that what he has done is right. It

is but an incipient proceeding which decides nothing.

To show the inexpediency of the present bill, I shall endeavor to prove

the expediency of the judicial law of the last session. In doing this it

will be necessary to take a view of the leading features of the

pre-existing system, to inquire into its defects, and to examine how far

the evils complained of were remedied by the provisions of the late act.

It is not my intention to enter into the details of the former system;

it can be necessary only to state so much as will distinctly show its

defects.

There existed, sir, a Supreme Court, having original cognizance in a few

cases, but principally a court of appellate jurisdiction. This was the

great national court of dernier resort. Before this tribunal, questions

of unlimited magnitude and consequence, both of a civil and political

nature, received their final decision; and I may be allowed to call it

the national crucible of justice, in which the judgments of inferior

courts were to be reduced to their elements and cleansed from every

impurity. There was a Circuit Court, composed in each district of a

judge of the Supreme Court and the district judge. This was the chief

court of business both of a civil and criminal nature.

In each district a court was established for affairs of revenue, and of

admiralty and maritime jurisdiction. It is not necessary for the

purposes of the present argument to give a more extensive outline of the

former plan of our Judiciary. We discover that the judges of the Supreme

Court, in consequence of their composing a part of the circuit courts,

were obliged to travel from one extremity to the other of this extensive

country. In order to be in the court-house two months in the year they

were forced to be upon the road six. The Supreme Court being the court

of last resort, having final jurisdiction over questions of incalculable

importance, ought certainly to be filled with men not only of probity,

but of great talents, learning, patience, and experience. The union of

these qualities is rarely, very rarely found in men who have not passed

the meridian of life. My Lord Coke tells us no man is fit to be a judge

until he has numbered the lucubrations of twenty years. Men of studious

habits are seldom men of strong bodies. In the course of things it could

not be expected that men fit to be judges of your Supreme Courts would

be men capable of traversing the mountains and wildernesses of this

extensive country? It was an essential and great defect in this court,

that it required in men the combination of qualities, which it is a

phenomenon to find united. It required that they should possess the

learning and experience of years and the strength and activity of youth.

I may say further, Mr. Chairman, that this court, from its constitution,

tended to deterioration and not to improvement. Your judges, instead of

being in their closets and increasing by reflection and study their

stock of wisdom and knowledge, had not even the means of repairing the

ordinary waste of time. Instead of becoming more learned and more

capable, they would gradually lose the fruits of their former industry.

Let me ask if this was not a vicious construction of a court of the

highest authority and greatest importance in the nation? In a court from

which no one had an appeal and to whom it belonged to establish the

leading principles of national jurisprudence?

In the constitution of this court, as a court of last resort, there was

another essential defect. The appeals to this court are from the circuit

courts. The circuit court consists of the district judge and a judge of

the Supreme Court. In cases where the district judge is interested,

where he has been counsel, and where he has decided in the court below,

the judge of the Supreme Court alone composes the circuit court. What,

then, is substantially the nature of this appellate jurisdiction? In

truth and practice, the appeal is from a member of a court to the body

of the same court. The circuit courts are but emanations of the Supreme

Court. Cast your eyes upon the Supreme Court; you see it disappear, and

its members afterwards arising in the shape of circuit judges. Behold

the circuit judges; they vanish, and immediately you perceive the form

of the Supreme Court appearing. There is, sir, a magic in this

arrangement which is not friendly to justice. When the Supreme Court

assembles, appeals come from the various circuits of the United States.

There are appeals from the decisions of each judge. The judgments of

each member pass in succession under the revision of the whole body.

Will not a judge, while he is examining the sentence of a brother

to-day, remember that that brother will sit in judgment upon his

proceedings to-morrow? Are the members of a court thus constituted, free

from all motive, exempt from all bias, which could even remotely

influence opinion on the point of strict right? and yet let me ask

emphatically, whether this court, being the court of final resort,

should not be so constituted that the world should believe and every

suitor be satisfied, that in weighing the justice of a cause, nothing

entered the scales but its true merits?

Your Supreme Court, sir, I have never considered as any thing more than

the judges of assize sitting in bank. It is a system with which perhaps

I should find no fault, if the judges sitting in bank did not exercise a

final jurisdiction. Political institutions should be so calculated as

not to depend upon the virtues, but to guard against the vices and

weaknesses of men. It is possible that a judge of the Supreme Court

would not be influenced by the _esprit du corps_, that he would neither

be gratified by the affirmance, nor mortified by the reversal of his

opinions; but this, sir, is estimating the strength and purity of human

nature upon a possible, but not on its ordinary scale.

I believe, said Mr. B., that in practice the formation of the Supreme

Court frustrated, in a great degree, the design of its institution. I

believe that many suitors were discouraged from seeking a revision of

the opinions of the circuit court, by a deep impression of the

difficulties to be surmounted in obtaining the reversal of the judgment

of a court from the brethren of the judge who pronounced the judgment.

The benefit of a court of appeals, well constituted, is not confined to

the mere act of reviewing the sentence of an inferior court; but is more

extensively useful by the general operation of the knowledge of its

existence upon inferior courts. The power of uncontrollable decision is

of the most delicate and dangerous nature. When exercised in the courts,

it is more formidable than by any other branch of our government. It is

the Judiciary only which can reach the person, the property, or life of

an individual. The exercise of their power is scattered over separate

cases, and creates no common cause. The great safety under this power

arises from the right of appeal. A sense of this right combines the

reputation of the judge with the justice of the cause. In my opinion, it

is a strong proof of the wisdom of a judicial system when few causes are

carried into the court of the last resort. I would say, if it were not

paradoxical, that the very existence of a court of appeals ought to

destroy the occasion for it. The conscience of the judge, sir, will no

doubt be a great check upon him in the unbounded field of discretion

created by the uncertainty of law; but I should, in general cases, more

rely upon the effect produced by his knowledge, that an inadvertent or

designed abuse of power was liable to be corrected by a superior

tribunal. A court of appellate jurisdiction, organized upon sound

principles, should exist, though few causes arose for their decision;

for it is surely better to have a court and no causes, than to have

causes and no court. I now proceed, sir, to consider the defects which

are plainly discernible, or which have been discovered by practice in

the constitution of the circuit courts. These courts, from information

which I have received, I apprehend were originally constructed upon a

fallacious principle. I have heard it stated that the design of placing

the judges of the Supreme Court in the circuit courts, was to establish

uniform rules of decision throughout the United States. It was supposed

that the presiding judges of the circuit courts, proceeding from the

same body, would tend to identify the principles and rules of decision

in the several districts. In practice, a contrary effect has been

discovered to be produced by the peculiar organization of these courts.

In practice we have found not only a want of uniformity of rule between

the different districts, but no uniformity of rule in the same district.

No doubt there was a uniformity in the decisions of the same judge; but

as the same judge seldom sat twice successively in the same district,

and sometimes not till after an interval of two or three years, his

opinions were forgotten or reversed before he returned. The judges were

not educated in the same school. The practice of the courts, the forms

of proceeding, as well as the rules of property, are extremely various

in the different quarters of the United States. The lawyers of the

Eastern, the Middle, and Southern States, are scarcely professors of the

same science. These courts were in a state of perpetual fluctuation. The

successive terms gave you courts in the same district, as different from

each other as those of Connecticut and Virginia. No system of practice

could grow up, no certainty of rule could be established. The seeds sown

in one term scarcely vegetated before they were trodden under foot. The

condition of a suitor was terrible; the ground was always trembling

under his feet. The opinion of a former judge was no precedent to his

successor. Each considered himself bound to follow the light of his own

understanding. To exemplify these remarks, I will take the liberty of

stating a case which came under my own observation. An application

before one judge was made to quash an attachment in favor of a

subsequent execution creditor; the application was resisted upon two

grounds, and the learned judge, to whom the application was first made,

expressing his opinion in support of both grounds, dismissed the

motion. At the succeeding court, a different judge presided, and the

application was renewed and answered upon the same grounds. The second

learned judge was of opinion, that one point has no validity, but he

considered the other sustainable, and was about also to dismiss the

motion, but upon being pressed, at last consented to grant a rule to

show cause. At the third term, a third learned judge was on the bench,

and though the case was urged upon its former principles, he was of

opinion, that both answers to the application were clearly insufficient,

and accordingly quashed the attachment. When the opinions of his

predecessors were cited, he replied, that every man was to be saved by

his own faith.

Upon the opinion of one judge, a suitor would set out in a long course

of proceedings, and after losing much time and wasting much money, he

would be met by another judge, who would tell him he had mistaken his

road, that he must return to the place from which he started, and pursue

a different track. Thus it happened as to the chancery process to compel

the appearance of a defendant. Some of the judges considered themselves

bound by the rules in the English books, while others conceived that a

power belonged to the court, upon the service of a subpoena, to make a

short rule for the defendant to appear and answer, or that the bill

should be taken _pro confesso_. A case of this kind occurred where much

embarrassment was experienced. In the circuit court for the district of

Pennsylvania, a bill in chancery was filed against a person, who then

happened to be in that district, but whose place of residence was in the

North-western Territory. The subpoena was served, but there was no

answer nor appearance. The court to which the writ was returned, without

difficulty, upon an application, granted a rule for the party to appear

and answer at the expiration of a limited time, or that the bill be

taken _pro confesso_. A personal service of this rule being necessary,

the complainant was obliged to hire a messenger to travel more than a

thousand miles to serve a copy of the rule. At the ensuing court,

affidavit was made of the service, and a motion to make the rule

absolute. The scene immediately changed, a new judge presided, and it

was no longer the same court.

The authority was called for to grant such a rule. Was it warranted by

any act of Congress, or by the practice of the State? It was answered

there is no act of Congress--the State has no court of chancery. But

this proceeding was instituted, and has been brought to its present

stage at considerable expense, under the direction of this court. The

judge knew of no power the court had to direct the proceeding, and he

did not consider that the complainant could have a decree upon this bill

without going through the long train of process found in the books of

chancery practice. The complainant took this course, and at a future

time was told by another judge, that he was incurring an unnecessary

loss of time and money, and that a common rule would answer his purpose.

I ask you, Mr. Chairman, if any system could be devised more likely to

produce vexation and delay? Surely, sir, the law is uncertain enough in

itself, and its paths sufficiently intricate and tedious, not to require

that your suitors should be burdened with additional embarrassments by

the organization of your courts.

The circuit is the principal court of civil and criminal business; the

defects of this court were, therefore, most generally and sensibly felt.

The high characters of the judges at first brought suitors into the

courts; but the business was gradually declining, though causes

belonging to the jurisdiction of the courts were multiplying, the

continual oscillation of the court baffled all conjecture as to the

correct course of the proceeding or the event of a cause. The law ceased

to be a science. To advise your client it was less important to be

skilled in the books than to be acquainted with the character of the

judge who was to preside. When the term approached, the inquiry was,

what judge are we to have? What is his character as a lawyer? Is he

acquainted with chancery law? Is he a strict common lawyer, or a special

pleader?

When the character of the judge was ascertained, gentlemen would then

consider the nature of their causes, determine whether it was more

advisable to use means to postpone or to bring them to a hearing.

The talents of the judges rather increased the evil, than afforded a

corrective for the vicious constitution of these courts. They had not

drawn their knowledge from the same sources. Their systems were

different, and hence the character of the court more essentially changed

at each successive term. These difficulties and embarrassments banished

suitors from the court, and without more than a common motive, recourse

was seldom had to the Federal tribunals.

I have ever considered it, also, as a defect in this court, that it was

composed of judges of the highest and lowest grades. This, sir, was an

unnatural association; the members of the court stood on ground too

unequal to allow the firm assertion of his opinion to the district

judge. Instead of being elevated, he felt himself degraded by a seat

upon the bench of this court. In the district court he was every thing,

in the circuit court he was nothing. Sometimes he was obliged to leave

his seat, while his associate reviewed the judgment which he had given

in the court below. In all cases he was sensible that the sentences in

the court in which he was, were subject to the revision and control of a

superior jurisdiction where he had no influence, but the authority of

which was shared by the judge with whom he was acting. No doubt in some

instances the district judge was an efficient member of this court, but

this never arose from the nature of the system, but from the personal

character of the man. I have yet, Mr. Chairman, another fault to find

with the ancient establishment of the circuit courts. They consisted

only of two judges, and sometimes of one. The number was too small,

considering the extent and importance of the jurisdiction of the court.

Will you remember, sir, that they held the power of life and death,

without appeal? That their judgments were final over sums of two

thousand dollars, and their original jurisdiction restrained by no

limits of value, and that this was the court to which appeals were

carried from the district court.

I have often heard, sir, that in a multitude of counsel there was

wisdom, and if the converse of the maxim be equally true, this court

must have been very deficient. When we saw a single judge reversing the

judgment of the district court, the objection was most striking, but the

court never had the weight which it ought to have possessed, and would

have enjoyed had it been composed of more members. But two judges

belonged to the court, and inconvenience was sometimes felt from a

division of their opinions. And this inconvenience was but poorly

obviated by the provision of the law that in such cases the cause should

be continued to the succeeding term, and receive its decision from the

opinion of the judge who should then preside.

I do not pretend, Mr. Chairman, to have enumerated all the defects which

belonged to the former judicial system. But I trust those which I have

pointed out, in the minds of candid men, will justify the attempt of the

Legislature to revise that system, and to make a fairer experiment of

that part of the plan of our constitution which regards the Judicial

power. The defects, sir, to which I have alluded, had been a long time

felt and often spoken of. Remedies had frequently been proposed. I have

known the subject brought forward in Congress or agitated in private,

ever since I have had the honor of a seat upon this floor. I believe,

sir, a great and just deference for the author of the ancient scheme

prevented any innovation upon its material principles; there was no

gentleman who felt the deference more than myself, nor should I have

ever hazarded a change upon speculative opinion. But practice had

discovered defects which might well escape the most discerning mind in

planning the theory. The original system could not be more than

experiment; it was built upon no experience. It was the first

application of principles to a new state of things. The first judicial

law displays great ability, and it is no disparagement of the author to

say its plan is not perfect.

I know, sir, that some have said, and perhaps not a few have believed,

that the new system was introduced not so much with a view to its

improvement of the old, as to the places which it provided for the

friends of the Administration. This is a calumny so notoriously false,

and so humble, as not to require nor to deserve an answer upon this

floor. It cannot be supposed that the paltry object of providing for

sixteen unknown men could have ever offered an inducement to a great

party basely to violate their duty, meanly to sacrifice their character,

and foolishly to forego all future hopes.

I now come, Mr. Chairman, to examine the changes which were made by the

late law. This subject has not been correctly understood. It has every

where been erroneously represented. I have heard much said about the

additional courts created by the act of last session. I perceive them

spoken of in the President's Message. In the face of this high

authority, I undertake to state, that no additional court was

established by that law. Under the former system there was one Supreme

Court, and there is but one now. There were seventeen district courts,

and there are no more now. There was a circuit court held in each

district, and such is the case at present. Some of the district judges

are directed to hold their courts at new places, but there is still in

each district but one district court. What, sir, has been done? The

unnatural alliance between the Supreme and district courts has been

severed, but the jurisdiction of both these courts remains untouched.

The power or authority of neither of them has been augmented or

diminished. The jurisdiction of the circuit court has been extended to

the cognizance of debts of four hundred dollars, and this is the only

material change in the power of that court. The chief operation of the

late law is a new organization of the circuit courts. To avoid the evils

of the former plan, it became necessary to create a new corps of judges.

It was considered that the Supreme Court ought to be stationary, and to

have no connection with the judges over whose sentences they had an

appellate jurisdiction.

To have formed a circuit court out of the district judges, would have

allowed no court of appeal from the district court, except the Supreme

Court, which would have been attended with great inconvenience. But this

scheme was opposed by a still greater difficulty. In many districts the

duties of the judge require a daily attention. In all of them business

of great importance may on unexpected occurrences require his presence.

This plan was thought of; it was well examined and finally rejected, in

consequence of strong objections to which it was liable. Nothing

therefore remained but to compose the circuit court of judges distinct

from those of the other courts. Admitting the propriety of excluding

from this court the judges of the Supreme and district courts, I think

the late Congress cannot be accused of any wanton expense, nor even of a

neglect of economy in the new establishment. This extensive country has

been divided into six circuits, and three judges appointed for each

circuit. Most of the judges have twice a year to attend a court in three

States, and there is not one of them who has not to travel further, and

who in time will not have more labor to perform than any judge of the

State courts. When we call to mind that the jurisdiction of this court

reaches the life of the citizen, and that in civil cases its judgments

are final to a large amount, certainly it will not be said that it ought

to have been composed of less than three judges. One was surely not

enough, and if it had been doubtful whether two were not sufficient, the

inconvenience which would have frequently arisen from an equal division

of opinion, justifies the provision which secures a determination in all

cases.

It was, additionally, very material to place on the bench of this court

a judge from each State, as the court was in general bound to conform to

the law and the practice of the several States.

I trust, sir, the committee are satisfied that the number of judges

which compose the circuit court is not too great, and that the

Legislature would have been extremely culpable to have committed the

high powers of this court to fewer hands. Let me now ask, if the

compensation allowed to these judges is extravagant? It is little more

than half the allowance made to the judges of the Supreme Court. It is

but a small proportion of the ordinary practice of those gentlemen of

the bar, who are fit, and to whom we ought to look to fill the places.

You have given a salary of two thousand dollars. The puisne judges of

Pennsylvania, I believe, have more. When you deduct the expenses of the

office, you will leave but a moderate compensation for service, but a

scanty provision for a family. When, Mr. Chairman, gentlemen coolly

consider the amendments of the late law, I flatter myself their candor

will at least admit that the present modification was fairly designed to

meet and remedy the evils of the old system.