persons only are concerned. And can it be possible, that with a jurisdiction embracing so small a portion of private litigation, in a great part of which the State courts might, and ought to participate, that we can stand in need of thirty-eight judges, and expend in judiciary regulations the annual sum of $137,000? No other country, whose regulations I have any knowledge of, furnishes an example of a system so prodigal and extensive. In England, whose courts are the boast, and said to be the security of the rights of the nation, every man knows there are but twelve judges and three principal courts. These courts embrace, in their original or appellate jurisdiction, almost the whole circle of human concerns. The King's Bench and Common Pleas, which consist of four judges each, entertain all the common law suits of 40s. and upwards, originating among nine millions of the most commercial people in the world. They moreover revise the proceedings of not only all the petty courts of record in the Kingdom, even down to the courts of piepoudre, but also of the Court of King's Bench in Ireland; and these supreme courts, after centuries of experiment, are found to be fully competent to all the business of the Kingdom. I will now inquire into the power of Congress to put down these additional courts and judges. First, as to the courts, Congress are empowered by the Constitution "from time to time, to ordain and establish inferior courts." The act now under consideration, is a legislative construction of this clause in the Constitution, that Congress may abolish as well as create these judicial officers; because it does expressly, in the twenty-seventh section of the act, abolish the then existing inferior courts, for the purpose of making way for the present. This construction, I contend, is correct; but it is equally pertinent to my object, whether it be or be not. If it be correct, then the present inferior courts may be abolished as constitutionally as the last; if it be not, then the law for abolishing the former courts, and establishing the present, was unconstitutional, and consequently repealable. But independent of this legislative construction, on which I do not found my opinion, nor mean to rely my argument, there is little doubt indeed, in my mind, as to the power of Congress on this law. The first section of the third article vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress may, from time to time, ordain and establish. By this clause Congress may, from time to time, establish inferior courts; but it is clearly a discretionary power, and they may not establish them. The language of the Constitution is very different when regulations are not left discretional. For example, "The trial," says the Constitution, "of all crimes '(except in cases of impeachment) shall be by jury: representatives and direct taxes shall be apportioned according to numbers. All revenue bills shall 'originate in the House of Representatives," &c. It would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although Congress may, from time to time, JANUARY, 1802. establish inferior courts, yet, when established, that they shall not be abolished by a subsequent Congress possessing equal powers. It would be a paradox in legislation. 2d. As to the judges. The Judiciary department is so constructed as to be sufficiently secured against the improper influence of either the Executive or Legislative departments. The courts are organized and established by the Legislature, and the Executive creates the judges. Being thus organized, the Constitution affords the proper checks to secure their honesty and independence in office. It declares they shall not be removed from office during good behaviour; nor their salaries diminished during their continuance in office. From this it results, that a judge, after his appointment, is totally out of the power of the President, and his salary secured against legislative diminution, during his continuance in office. The first of these checks, which protects a judge in his office during good behaviour, applies to the President only, who would otherwise have possessed the power of removing him, like all other officers, at pleasure; and the other check, forbidding a diminution of their salaries, applies to the Legislature only. They are two separate and distinct checks, furnished by the Constitution against two distinct departments of the Government; and they are the only ones which are or ought to have been furnished on the subject. But because the Constitution declares that a judge shall hold his office during good behaviour, can it be tortured to mean, that he shall hold his office after it is abolished? Can it mean, that his tenure should be limited by behaving well in an office which did not exist? Can it mean that an office may exist, although its duties are extinct? Can it mean, in short, that the shadow, to wit, the judge, can remain, when the substance, to wit, the office, is removed? It must have intended all these absurdities, or it must admit a construction which will avoid them. The construction obviously is, that a judge should hold an existing office, so long as he did his duty in that office; and not that he should hold an office that did not exist, and perform duties not provided by law. Had the construction which I contend against been contemplated by those who framed the Constitution, it would have been necessary to have declared, explicitly, that the judges should hold their offices and their salaries during good behaviour. Such a construction is not only irreconcileable with reason and propriety, but is repugnant to the principles of the Constitution. It is a principle of our Constitution, as well as of common honesty, that no man shall receive public money but in consideration of public services. Sinecure offices, therefore, are not permitted by our laws or Constitution. By this construction, complete sinecure offices will be created; hosts of Constitutional pensioners will be settled on us, and we cannot calculate how long. This is really creating a new species of public debt, not like any other of our debts; we cannot discharge the principal at any fixed time. It is worse than the deferred stock; for on that you pay an annual interest only, and the principal is redeemable at a given period. But here, you pay an annual principal, and that principal irredeemable except by the will of Providence. It may suit countries where public debts are considered as public blessings; for in this way a people might soon become superlatively blessed indeed. Let me not be told, sir, that the salaries in the present case are inconsiderable, and ought not to be withheld; and that the doctrine is not a dangerous one. I answer, it is the principle I contend against; and if it is heterodox for one dollar, it is equally so for a million. But I contend the principle, if once admitted, may be extended to destructive lengths. Suppose it should hereafter happen, that those in power should combine to provide handsomely for their friends, could any way so plain, easy, and effectual, present itself, as by creating courts, and filling them with those friends? Might not sixty as well as sixteen, with salaries of twenty thousand, instead of two thousand dollars, be provided for in this way? SENATE. rassed with their State judges; for the same construction would be equally applicable to them. Upon this construction, also, an infallibility is predicated, which it would be arrogance in any human institution to assume, and which goes to cut up legislation by the roots. We would be debarred from that which is indulged to us from a higher source, and on subjects of higher concern than legislation; I mean a retraction from and correction of our errors. On all other subjectso legislation we are allowed, it seems, to change our minds, except on judiciary subjects, which, of all others, is the most complex and difficult. I appeal to our own statute book to prove this difficulty; for in ten years Congress have passed no less than twenty-six laws on this subject. I conceive, sir, that the tenure by which a judge holds his offiee, is evidently bottomed on the idea of securing his honesty and independence, whilst exercising his office. The idea was introduced in England, to counteract the influence of the Crown over the judges; but if the construction now contended for shall prevail, we shall, in our mistaken imitation of this our favorite prototype, outstrip them, by establishing what they have not, a judicial oligarchy; for there their judges are removable by a joint vote of Lords and Commons. Here ours are not removable, except for malfeasance in office; which malfeasance could not be committed, as they would have no office. The thing, I trust, will not happen. It is presuming a high degree of corruption; but it might happen under the construction contended for; as the Constiution presumes corruption may happen in any department of the Government, by the checks it has furnished against it; and as this construction does open a wide door for corruption, it is but fair reasoning to show the dangers which Upon the whole, sir, as all courts under any free may grow out of it; for, in the construction of all Government must be created with an eye to the instruments, that which will lead to inconvenience, administration of justice only; and not with any mischief, or absurdity, ought to be avoided. This regard to the advancement or emolument of indidoctrine has another difficulty to reconcile: After vidual men; as we have undeniable evidence before the law is repealed, they are either judges or they us that the creation of the courts now under conare not. If they are judges they can be impeached; sideration was totally unnecessary; and as no Govbut for what? For malfeasance in office only. ernment can, I apprehend, seriously deny that this How, I would ask, can they be impeached for Legislature has a right to repeal a law enacted by malfeasancs in office, when their offices are abol-a preceding one, we will, in any event, discharge ished? They are not officers, but still they are entitled to the emoluments annexed to an office. Although they are judges, they cannot be guilty of malfeasances, because they have no office. They are only quasi judges so far as regards the duties, but real judges so far as regards the salary. It must be the salary, then, and not the duties which constitute a judge. For my part, I do not know under what class of things to range them, or what name to give them. They are unacknowledged by the letter, spirit, or genius, of our Constitution, and are to me non-descripts. our duty by repealing this law; and thereby doing all in our power to correct the evil. If the judges are entitled to their salaries under the Constitution, our repeal will not affect them; and they will, no doubt, resort to their proper remedy. For where there is a Constitutional right, there must be a Constitutional remedy. Mr. OLCOTT, of New Hampshire, thought the subject was of so much importance as to merit further consideration. The arguments of the gentleman from Kentucky, however ingenious, had not convinced him that the law ought to be reThere is another difficulty under this construc-pealed. It had not risen like a mushroom in the tion still to encounter, and which also grows out night, but the principles on which it rested had of the Constitution: By the Constitution, a new been settled after mature reflection, He thought State may be formed by the junction of two or it would be extraordinary, before any inconvenimore States, with their assent and that of Con-ence had been discovered, to set such a law aside. gress. If this doctrine, once a judge and always a judge, be correct, what would you do in such an event, with the district judges of the States who formed that junction? Both would be unnecessary, and you would have, in a single State, two judges of equal and concurrent jurisdiction; or one a real judge, with an office, and another a quasi judge, without an office. The States also forming such junction, would be equally embar For these reasons, Mr. O. moved the postponement of the consideration of the question. Mr. COCKE, of Tennessee.-This act is said to be entirely experimental, and it is further said, that no inconveniences had arisen under it. He thought serious inconveniences had arisen. The inconvenience of paying $137,000 a year was truly serious; and it was an inconvenience which ought to be got rid of as soon as possible. It was expected that gentlemen opposed to the resolution would come forward with their arguments against it. If, however, they had no arguments to use, he thought his friend from Kentucky had brought forward reasons so cogent and experimental that the House must be convinced of the propriety of the repeal. Mr. DAYTON, of New Jersey, trusted it was not the disposition of the mover to press a decision to-day. He thought it would be improper to postpone the discussion, as gentlemen would thereby be precluded from offering their opinions on the subject. He hoped the motion for postponement would be withdrawn, that other gentlemen might have an opportunity to speak. The motion was withdrawn. Mr. J. MASON, of Massachusetts, said, it would be agreed on all hands that this was one of the most important questions that ever came before a Legislature. Were he not of this opinion_he would not have risen to offer his sentiments. But he felt so deep an interest in the question, and from the respect which he entertained for the district of country he represented, he deemed it his duty to meet the subject, and not be satisfied with giving to it his silent negative. It was well known, and he presumed it would be readily agreed to, that no people on earth, for the last twenty-four years, had been so much in the habit of forming systems of government as the people of the United States. Nor had any people been so fortunately situated for cool and correct deliberation. In the Constitutions they had formed, it would appear that there had been an uniform concurrence in the establishment of one great prominent feature, and also in the application of one uniform principle to that feature: that the Legislative, the Executive, and the Judicial, should form the three great departments of Government, and that they should be distinct from and independent of each other; and the more the proceedings and sentiments of the people were examined, the more clearly would it appear that all the new and additional checks created, had been applied to adjust the relative weakness or strength of the several departments of Government. The same principle had been observed in the old world, whenever an opportunity presented for forming a constitution, having for its object, the protection of individual rights. It accorded, too, with the uniform opinions of the most celebrated historians and politicians, both of Europe and America; with the opinions and practices of all our Legislatures. Nor had Mr. MASON ever heard any one hardy enough to deny the propriety of its observance. He well recollected, that among the great grievances, which had roused us into an assertion of our independence of England, it was declared in the instrument asserting that independence," that the Crown had the appointment of judges dependent on its will and favor." JANUARY, 1802. would be confirmed by an examination of the Constitution, which in every section recognised or referred to it. The Constitution, in the construction of the Executive, Legislative, and Judiciary departments, had assigned to each a different tenure. The President was chosen for four years; the Senate for six years, subject to a prescribed rotation biennially; the House of Representatives for two years; and the Judiciary during good behaviour. It says to the President, at the expiration of every four years, you shall revert to the character of a private citizen, however splendid your talents or conspicuous your virtue. Why? Because you have assigned to you powers which it is dangerous to exercise. You have the power of creating offices and officers. You have prerogatives. The temptation to an abuse of your power is great. Such has been the uniform experience of ages. The Constitution holds the same language to the Senate and House of Representatives: It says, it is necessary for the good of society that you also should revert at short periods to the mass of the people, because to you are consigned the most important duties of Government, and because you hold the purse-strings of the nation. To the Judiciary: What is the language applied to them? The judges are not appointed for two, four, or any given number of years; but they hold their appointments for life, unless they misbehave themselves. Why? For this reason: They are not the depositaries of the high prerogatives of Government. They neither appoint to office, or hold the purse-strings of the country, or legislate for it. They depend entirely upon their talents, which is all they have to recommend them. They cannot, therefore, be disposed to pervert their power to improper purposes. What are their duties? To expound and apply the laws. To do this, with fidelity and skill, requires a length of time. The requisite knowledge is not to be procured in a day. These are the plain and strong reasons which must strike every mind, for the different tenure by which the judges hold their offices, and they are such as will eternally endure wherever liberty exists. On examination, it will be found that the people, in forming their Constitution, meant to make the judges as independent of the Legislature as of the Executive. Because the duties which they have to perform, call upon them to expound not only the laws, but the Constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the Constitution. For this reason it was more important that the judges in this country should be placed beyond the control of the Legislature, than in other countries where no such power attaches to them. Mr. MASON challenged gentlemen to exhibit a single instance, besides that lately furnished by Maryland, of a Legislative act, repealing a law From all these circumstances he concluded that passed in execution of a Constitution, under which the people of America, when they formed a sys-the judges held their offices during good behatem for their Federal Government, intended to viour. In truth, no such power existed, nor was establish this great principle; and the conclusion it in the power of any Legislature, so circum stanced, by a single law to dash them out of existence. The opinion of Mr. MASON, therefore, was, that this Legislature have no right to repeal the judiciary law; for such an act would be in direct vio lation of the Constitution. The Constitution says: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices du'ring good behaviour, and shall, at stated times, receive for their services, a compensation, which 'shall not be diminished during their continuance ' in office." Thus it says, "the judges shall hold their offices during good behaviour." How can this direction of the Constitution be complied with, if the Legislature shall, from session to session, repeal the law under which the office is held, and remove the office? He did not conceive that any words, which human ingenuity could devise, could more completely get over the remarks that had been made by the gentleman from Kentucky. But that gentleman says, that this provision of the Constitution applies exclusively to the President. He considers it as made to supersede the powers of the President to remove the judges. But could this have been the contemplation of the framers of the Constitution, when even the right of the President to remove officers at pleasure, was a matter of great doubt, and had divided in opinion our most enlightened citizens. Not that he stated this circumstance because he had doubts. He thought the President ought to have the right; but it did not emanate from the Constitution; was not expressly found in the Constitution, but sprang from Legislative construction. Besides, if Congress have the right to repeal the whole of the law, they must possess the right to repeal a section of it. If so, they may repeal the law so far as it applies to a particular district, and thus get rid of an obnoxious judge. They may remove his office from him. Would it not be absurd still to say, that the removed judge held his office during good behaviour? The Constitution says: The judges shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." Why this provision? Why guard against the power to deprive the judges of their pay in a diminution of it, and not provide against what was more important, their existence? SENATE. Still, if the gentlemen would not agree with him as to the unconstitutionality of the measure proposed, he would ask, was it expedient? Were there not great doubts existing throughout the United States? Ought not each gentleman to say, though I may have no doubts or hesitancy, are not a large portion of our citizens of opinion that it would violate the Constitution? If this diversity of sentiment exists, ought not the evils under the judiciary law to be very great before we touch it? Ought we not to aim at harmonizing, instead of dividing our citizens? Was not the Constitution a sacred instrument; an instrument ever to be approached with reverence; an instrument which ought not lightly to be drawn from its hallowed retreat, and subjected to the flux and reflux of passion? But where is the evil complained of? This system was established only last session; scarcely had it been yet organized; scarcely had we tried it on its very threshold; where then the necessity of being so pointed, as to destroy a system scarcely formed three days ago? Does not this manifest precipitation? Will it not manifest more magnanimity, more rationality, to abide by it until we try it; instead of taking up a pen and dashing it out of existence? The reason that the suits depending were not so numerous, arose from the nature of the old establishment. That establishment had no parallel. It carried with it the seeds of its own dissolution. No set of judges could be found physically hardy enough to execute it. Such was the labor of their duties, that they were denied time for study or improvement. Besides, a case was heard at one term by one judge, and postponed for consideration to the next term. At that term another judge appeared, and all the arguments were to be gone over anew, and the same thing might happen again and again. Was this the way to extend justice to our citizens? Was not the delay equivalent to a denial of justice? It was a fact that three-fourths of the time of the judges had been taken up in travelling. It may be true, that the number of suits in the federal courts is lessened; and if the internal taxes are to be swept away, it may be still more lessened as far as depends upon that source. But is it possible, that suits will go on diminishing as the gentleman seems to think? Is reason so predominant? Is the millenium so near at hand? On the contrary, is not our commerce increasing with great rapidity? Is not our wealth increasing? And will not controversies arise in proportion to the growth of our numbers and property? controversies, which will go to the federal tribunals, as soon as the judiciary system is fully established? By the documents quoted by the gentleman from Kentucky, it appears that more business has been lately done in the federal courts than in any other antecedent time, except in one or two counties in Pennsylvania. Mr. MASON knew that a Legislative body was occasionally subject to the dominance of violent passions; he knew that they might pass unconstitutional laws; and that the judges, sworn to support the Constitution, would refuse to carry them into effect; and he knew that the Legislature might contend for the execution of their statutes: Hence the necessity of placing the judges above Besides, said Mr. M. even if there be not a great the influence of these passions; and for these rea-pressure of business, had we not better pay the sons the Constitution had put them out of the paltry sum of thirty or forty thousand dollars for a power of the Legislature. system too broad, than have one that is too narrow? 7th CoN-2 Is it not a melancholy consideration, that in many of the European States, the costs are equal to the principle contended for? It would be honorable to the United States to exhibit a different example. It would be honorable to them to hold out an example, even if confined to foreigners, of prompt and efficacious justice, though at the expense of $100,000. Such an example would be a cause for national triumph, and our people would exult in it. Inasmuch, therefore, as to render the judges respectable, it was necessary to make their appointments permanent; as time, labor, experience, and long study, were required to perfect any man in a knowledge of the laws of his country; inasmuch as it has been thought good policy, that the judges should be well paid, and that they should be so placed as to be divested of all fear, and neither to look to the right nor left; inasmuch as they should be so placed as to render them independent of Legislative as well as of Executive power; he hoped this law would not be repealed. These were the reasons which Mr. M. assigned as those which would influence his decision. He acknowledged, that he had not entered the House prepared to offer his sentiments; but, as the question was about to be put, he had thought it best to offer them, such as they were, rather than to give a silent vote on a subject of such great importance. Mr. WRIGHT, of Maryland, said it must be agreed that the subject was one of great importance, from its effect upon our revenues. If the repeal of the act of last session was Constitutional, he presumed there could be little doubt of its expediency, from the documents on our table. Has the Constitution vested the Legislature with a power over the subject of the resolution? If so, then should a law, which had been the effect of a flux of passion, be repealed by a reflux of reason. He believed that it had been introduced at the period of an expiring administration. It had been resisted by the republican side of the Senate, and he trusted that now, on the return of reason, it would be repealed. An allusion has been made to the State of Maryland, which had repealed a law respecting the judiciary. Mr. W. here quoted the constitution of that State, whose provisions, he observed, so far as respected the tenure of the office of a judge, corresponded with those of the Constitution of the United States. The Legislature of that State had been of opinion, and correctly too, that they did possess the power of repealing a law formed by their predecessors. And the Legislature of the United States possessed the same power. This they had already determined by the very act of the last session, which, while it created a number of new judges, abolished the offices of several district judges. It was clear that the Constitution meant to guard the officer and not the office. Will it be said that what the Legislature makes to-day, cannot be annihilated to-morrow? Even as to the judges of the Supreme Court, had not the law first constituted six, and was it not now by law reduced to five? And if Congress has power to reduce 6 JANUARY, 1802. the number of the superior, have they not the same power to reduce the number of the inferior judges? Are we to be eternally bound by the follies of a law which ought never to have been passed? Why the expression in the Constitution, "The judicial power shall be vested in such inferior courts as Congress may, from time to time, ordain ' and establish," if it had been intended, as is now contended, that the office being once bestowed, no change can be made? If the case of those who have accepted those offices, be considered as a hard one, may it not be said that they knew the Constitution, and the tenure by which their offices were to be held? In our regard for individual interest, we ought not to sacrifice the great interests of our country; and was it not demonstrable that, if twenty-one judges were sufficient when twelve hundred suits existed, they were equally so when there were no more than seven hundred? The gentleman from Massachusetts was wrong in stating that Maryland was the only State that had repealed a law creating judiciary offices. Virginia, if he was not misinformed, had done the same thing. But he wanted not these precedents. Our own archives furnished us with abundant precedents. We had reduced the judges of the Supreme Court from six to five; we had annihilated two districts. The very gentlemen opposed now to the repeal of this law, had voted for these measures. Thus it appeared, that, though the Constitution justified the measure then, it prohibited it now! Believing the Judiciary law of the last session had arisen from a disposition to provide for the warm friends of the existing Administration; believing that great inconveniences had arisen under it; believing its expense to be oppressive; and believing that if one Legislature had a right to pass it, another Legislature had the same right to repeal it; he trusted that, however a preceding Legislature might have been governed by passion, the present Legislature would, by repealing it, show that they were governed by reason. Mr. MORRIS, of New York.-Mr. President, I am so very unfortunate, that the arguments in favor of the motion have confirmed my opinion that the law to which it refers ought not to be repealed. The honorable mover has rested his proposition on two grounds: 1st. That the Judiciary law passed last session is unnecessary; and, 2dly. That we have a right to repeal it, and ought to exercise that right. The numerical mode of argument made use of to establish his first point is perfectly novel, and commands my tribute of admiration. This is the first time I ever heard the utility of the courts of justice estimated by the number of suits carried before them. I have read that a celebrated monarch of England, the great Alfred, had enacted such laws, established such tribunals, and organized such a system of police, that a purse of gold might be hung up on the highway without any danger of being taken. Had the honorable gentleman from Kentucky existed in those days, he |