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Judiciary System.

JANUARY, 1802.

The President laid before the Senate a letter precipitate a vote on the question. But, having signed William Doughty, clerk, with the general given notice two days since of his intention to account of the late Treasurer of the United States, move this resolution, he was himself prepared, if to the 30th of September, 1801 ; which was read, other gentlemen were prepared, to offer his sentiand ordered to lie on file.

ments on the subject. But if this were not the case; if gentlemen were not prepared to enter in

to a discussion of a point of such importance, he Wednesday, January 6.

was not anxious for immediate consideration, Mr. BRECKENRIDGE moved that the Senate

Mr. Tracy observed that the ordinary mode

proceed to the consideration of the President's Mes- of procedure in Senate had been to refer, in the sage, delivered at the commencement of the ses- first instance, each substantive member of the sion. Agreed to.

President's Message to a select committee. But

though this was the usual course, yet he felt in no JUDICIARY SYSTEM.

way hostile to any mode of doing business, which Mr. Mason called for the reading of the Mes- should be most agreeable to the gentleman from sage,

which was in part read; when the further Kentucky, or to the House. With an adherence reading of the whole document was suspended, to the ordinary course, he would have been better and that part only read, which relates to the Ju- pleased, for the substantial reason, that by a refdiciary System.

erence of the subject to a select commiitee, on Upon which Mr. BRECKENRIDGE, from Ken- receiving a report, the minds of the House would tucky, rose, and stated that two days ago he had be drawn more precisely to the points involved given notice that on this day he would submit tu in it, than could be expected from a resolution so the consideration of the Senate two resolutions loose as the present, which could only give rise to respecting the Judiciary Establishment of the verbal discussions. United States. As, however, those resolutions

Another course of procedure had not been unuwere not necessarily connected, and as they might sual--that of obtaining leave to bring in a bill, in be distinctly discussed, he would at present con- which event, the same result desired by Mr. Trafine himself to moving the first resolution ; with-cy would be insured. viz: the reference of the out however foreclosing to himself the right of bill to a committee. submitting the second after the disposition of the

Mr. S. T. Mason differed from the gentleman first. He, therefore, moved that the act passed from Connecticut. He believed the mode, now purlast session respecting the Judiciary Establish- sued, was perfectly correct, and conformable io a ment of the United States, be repealed.

principle adopted ihis session, that the Senate was [This is the act which created sixteen new cir- to be considered as in a committee of the whole cuit judges.)

on the President's Message, whenever taken up. The motion was seconded by Mr. Mason.

Nor did he discern the necessity, in a body so seAfter the resolution was read by the Presi- | lect as this, of referring each subject to a select DENT,

committee. But as the subject is extremely imMr. BRECKENRIDGE said he did not desire to portant, and some gentlemen seemed unprepared

for the discussion, he moved its postponement till place, within the area of the Senate Chamber, as the Friday. President shall allot.

Mr. BRECKENRIDGE said, that though he had Whereupon, a motion was made to reconsider the given notice, in his opinion sufficient, of his purabove resolution, and agreed to. The yeas and nays pose. yet, not wishing a precipitate discussion, he being taken, which were-yeas 17, nays 9.

would agree to the desired delay. It was then moved to amend the resolution by adding The consideration of the resolution was then after the word “ stenographer," " he having given bond deferred to Friday next. in the sum of — with two sufficient sureties in the sum of

each, for his good conduct." On which the yeas and nays were called, and stood—

THURSDAY, January 7. yeas 10, nays 18.

A message from the House of Representatives It was then moved to agree to the original resolution informed the Senate that the House have passed amended, by adding the words,“ or note-taker” after a bill for the apportionment of representatives the word “ stenographer;" which passed in the affirma- among the several States, according to the second tive. The yeas and nays being required were—yeas 16, enumeration, in which they desire the concur

rence of the Senate. On Wednesday the editor had, accordingly, assigned to him a convenient place in the lower area, from which

The bill was read the first time, and, by unanihe took notes of the proceedings of the Senate.

mous consent, a second time. On the adoption of the above resolution, which opens Nicholas, Ellery, Jackson, and Stone, to con

Ordered, That it be referred to Messrs. LOGAN, a new door to public information, and which may considered as the prelude to a more genuine sympathy

sider and report thereon. between the Senate and the people of the United States, Mr. Tracy, from the committee to whom was than may have heretofore subsisted, by rendering each referred the bill concerning the library for the use better acquainted with the other, we congratulate, with- of both Houses of Congress, reported amendout qualification, every friend to the true principles of ments; which were read, and ordered to lie for our republican institutions.


nays 12.

JANCARY, 1802.

Judiciary System.


FRIDAY, January 8.

brought by British creditors; this species of con

troversy is nearly at an end. The President read a letter addressed to him,

In Pennsylvania, the docket has been swelled and signed Thomas Tingey, and others, the ves by prosecutions in consequence of the Western try of Washington parish, in behalf of themselves insurrection, by the disturbances in Bucks and and the other members of that church, soliciting Northampton counties; and by the sedition act. the use of the room in the Capitol now occupied These I find amount in that Státe to two hundred by the Court, as a place of worship on Sundays, and forty suits. during the inclemency of Winter.

In Kentucky, non-resident land claimants have Mr. Logan, from the committee, reported the gone into the federal court from a temporary conbill for the apportionment of representatives among venience: because, until within a year or two the several States, according to the second enu, past, there existed no court of general jurisdiction meration, without amendment; and it was agreed co-extensive with the whole State. I find, too, that the further consideration of this bill should that of the six hundred and odd suits which have be postponed to Monday next.

been commenced there, one hundred and ninetyJUDICIARY SYSTEM.

six of them have been prosecutions under the laws

of the United States. Agreeably to the order of the day, the Senate In most of the States there have been prosecuproceeded to the consideration of the motion tions under the sedition act. This source of litimade on the 6th instant, to wit:

gation is, I trust, forever dried up. And, lastly, in " That the act of Congress passed on the 13th day all the States a number of suits have arisen under of February, 1801, entitled · An act to provide for the the excise law; which source of controversy will, more convenient organization of the Courts of the Uni- I hope, before this session terminates, be also dried ted States,' ought to be repealed.”


But this same document discloses another imMr. BRECKENRIDGE then rose and addressed the President, as follows:

portant fact; which is, that notwithstanding all

these untoward and temporary sources of federal It will be expected of me, I presume, sir, as I adjudication, the suits in those courts are decreasintroduced the resolution now under considera-ing; for, from the dockets exhibited (except Kention, to assign my reasons for wishing a repeal of tucky and Tennessee, whose suits are summed upin this law. This I shall do; and shall endeavor to the aggregate) it appears, that in 1799 there were show,

one thousand two hundred and seventy-four, and 1. That the law is unnecessary and improper, in 1800 there were six hundred and eighty-seven and was so at its passage; and

suits commenced; showing a decrease of five hun2. That the courts and judges created by it, can dred and eighty-seven suits. and ought to be abolished.

Could it be necessary then to increase courts Ist. That the act under consideration was un- when suits were decreasing? Could it be necesnecessary and improper, is, to my mind, , no diffi- sary to multiply judges, when their duties were cult task to prove. No increase of courts or judges diminishing ?' And will I not be justified, therecould be necessary or justifiable, unless the exist- fore, in affirming, that the law was unnecessary, ing courts and judges were incompetent to the and that Congress acted under a mistaken imprompt and proper discharge of the duties con- pression, when they multiplied courts and judges signed to them. To hold out a show of litigation, at a time when litigation was actually decreasing? when in fact litile exists, must be im politic; and But, sir, the decrease of business goes a small to multiply expensive systems, and create hosts way in fixing my opinion on this subject

. I am inof expensive officers, without having experienced clined to think, thai so far from there having been an actual necessity for them, must be a wanton a necessity at this time for an increase of courts waste of the public treasure.

and judges, that the time never will arrive when The document before us shows that, at the pas- America will stand in need of thirty-eight federal sage of this act, the existing courts, not only from judges. Look, sir, at your Constitution, and see their number, but from the suits depending be- | the judicial power there consigned to federal fore them, were fully competent to a speedy de- courts, and seriously ask yourself, can there be cision of those suits. It shows, that on the 15th fairly extracted from those powers subjects of litday of June last, there were depending in all the igation sufficient for six supreme and thirty-two circuit courts, (ihat of Maryland only excepted, inferior court judges ? To me it appears imposwhose docket we have not been furnished with,)sible. one thousand five hundred and thirty-nine suits. The judicial powers given to the federal courts It shows that eight thousand two hundred and were never intended by the Constitution to emseventy-six suits of every description have come brace, exclusively, subjects of litigation, which before those courts, in ten years and upwards. could, with propriety, be left with the State From this it appears, that the annual average courts. Their jurisdiction was intended princiamount of suits has been about eight hundred. pally to extend to great national and foreign con

But sundry contingent things have conspired to cerns. Except cases arising under the laws of swell the circuit court dockets. In Maryland, the United States, I do not at present recollect Virginia, and in all the Southern and Southwest- but three or four kinds in which their power exern States, a great number of suits have been tends to subjects of litigation, in which private


Judiciary System.

JANUARY, 1802.


persons only are concerned. And can it be pos- establish inferior courts, yet, when established, that sible, that with a jurisdiction embracing so small they shall not be abolished by a subsequent Cona portion of private litigation, in a great part of gress possessing equal powers. It would be a parawhich the State courts might, and ought to par- dox in legislation. ticipate, that we can stand in need of thirty-eight 2d. As to the judges. The Judiciary departjudges, and expend in judiciary regulations the ment is so constructed as to be sufficiently secured annual sum of $137,000?

against the improper influence of either the ExNo other country, whose regulations I have any ecutive or Legislative departments. The courts knowledge of, furnishes an example of a system are organized and established by the Legislature, so prodigal and extensive. In England, whose and the Executive creates the judges. Being thus courts are the boast, and said to be the security of organized, the Constitution affords the proper the rights of the nation, every man knows there checks to secure their honesty and independence are but twelve judges and three principal courts. in office. It declares they shall not be removed These courts embrace, in their original or appel- from office during good behaviour; nor their sallate jurisdiction, almost the whole circle of human aries diminished during their continuance in office.

From this it results, that a judge, after his appointThe King's Bench and Common Pleas, which ment, is totally out of the power of the President, consist of four judges each, entertain all the com- and his salary secured against legislative diminumon law suits of 40s. and upwards, originating tion, during his continuance in office. The first among nine millions of the most commercial peo- of these checks, which protects a judge in his ofple in the world. They moreover revise the pro- fice during good behaviour, applies to the Presiceedings of not only all the petty courts of record dent only, who would otherwise have possessed in the Kingdom, even down to the courts of pie- the power of removing him, like all other officers, poudre, but also of the Court of King's Bench in at pleasure; and the other check, forbidding a diIreland; and these supreme courts, after centuries minution of their salaries, applies to the Legislaof experiment, are found to be fully competent to ture only. They are two separate and distinct all the business of the Kingdom.

checks, furnished by the Constitution against two I will now inquire into the power of Congress distinct departments of the Government; and they to put down these additional courts and judges. are the only ones which are or ought to have been

First, as to the courts, Congress are empowered furnished on the subject. by the Constitution “from time to time, to ordain But because the Constitution declares that a and establish inferior courts.". The act now un- judge shall hold his office during good behaviour, der consideration, is a legislative construction of can it be tortured to mean, that he shall hold his this clause in the Constitution, that Congress may office after it is abolished? Can it mean, that his abolish as well as create these judicial officers; tenure should be limited by behaving well in an because it does expressly, in the twenty-seventh office which did not exist? Can it mean that an section of the act, abolish the then existing infe- office may exist, although its duties are extinci? rior courts, for the purpose of making way for the Can it mean, in short, that the shadow, to wit, the present. This construction, I contend, is correct; judge, can remain, when the substance, to wit, the but it is equally pertinent to my object, whether office, is removed? It must have intended all it be or be not. If it be correct, then the present these absurdities, or it must admit a construction inferior courts may be abolished as constitutionally which will avoid them. as the last; if it be not, then the law for abolishing Theconstruction obviously is, that a judge should the former courts, and establishing the present, hold an existing office, so long as he did his duty was unconstitutional, and consequently repealable. in that office; and not that he should hold an office

But independent of this legislative construction, that did not exist, and perform duties not provion which I do not found my opinion, por mean ded by law. Had the construction which I contend to rely my argument, there is little doubt indeed, against been contemplated by those who framed in my mind, as to the power of Congress on this the Constitution, it would have been necessary to law. The first section of the third article vests the have declared, explicitly, that the judges should judicial power of the United States in one Su- hold their offices and their salaries during good preme Court and such inferior courts as Congress behaviour. may, from time to time, ordain and establish. By Such a construction is not only irreconcileable this clause Congress may, from time to time, es- with reason and propriety, but is repugnant to the tablish inferior courts; but it is clearly a discretion- principles of the Constitution. It is a principle ary power, and they may not establish them. The of our Constitution, as well as of common honesty, language of the Constitution is very different when that no man shall receive public money but in regulations are not left discretional. For example, consideration of public services. Sinecure offices, " The trial,” says the Constitution, “ of all crimes therefore, are not permitted by our laws or Con(except in cases of impeachment) shall be by jury: stitution. By this construction, complete sinecure representatives and direct taxes shall be apportion offices will be created; hosts of Constitutional pened according to numbers. All revenue bills shall sioners will be settled on us, and we cannot caloriginate in the House of Representatives," &c. culate how long. This is really creating a new It would, therefore, in my opinion, be a perver- species of public debt, not like any other of our sion, not only of language, but of intellect, to say, debts; we cannot discharge the principal at any that although Congress may, from time to time, fixed time. It is worse than the deferred stock;


JANUARY, 1802.

Judiciary System.


for on that you pay an annual interest only, and rassed with their State judges; for the same conthe principal is redeemable at a given period. But struction would be equally applicable to them. here, you pay an annual principal, and that prin Upon this construction, also, an infallibility is cipal irredeemable except by the will of Provi- predicated, which it would be arrogance in any dence. It may suit countries where public debts human institution to assume, and which goes to are considered as public blessings; for in this way cut up legislation by the roots. We would be dea people might soon become superlatively blessed barred from that which is indulged to us from a indeed.

higher source, and on subjects of higher concern Let me not be told, sir, that the salaries in the than legislation; I mean a retraction from and present case are inconsiderable, and ought not to correction of our errors. On all other subjectso be withheld; and that the doctrine is not a danger- legislation we are allowed, it seems, to change our ous one. I answer, it is the principle I contend minds, except on judiciary subjects, which, of all against; and if it is heterodox for one dollar, it is others, is the most complex and difficult. I appeal equally so for a million. But I contend the prin- to our own statute book to prove this difficulty ; ciple, if once admitted, may be extended to de- for in ten years Congress have passed no less than structive lengths. Suppose it should hereafter hap- twenty-six laws on this subject. pen, that those in power should combine to pro- . I conceive, sir, that the tenure by which a judge vide handsomely for their friends, could any way holds his offiee, is evidently bottomed on the idea so plain, easy, and effectual, present itself, as by of securing his honesty and independence, whilst creating courts, and filling them with those friends? exercising his office. The idea was introduced Might not sixty as well as sixteen, with salaries in England, to counteract the influence of the of twenty thousand, instead of two thousand dol- Crown over the judges; but if the construction lars, be provided for in this way?

now contended for shall prevail, we shall, in our The thing, I trust, will not happen. It is pre- mistaken imitation of this our favorite prototype, suming a high degree of corruption; but it might outstrip them, by establishing what they have not, happen under the construction contended for; as a judicial oligarchy; for there their judges are rethe Constiution presumes corruption may happen movable by a joint vote of Lords and Commons. in any department of the Government, by the Here ours are not removable, except for malfeachecks it has furnished against it; and as this con sance in office; which malfeasance could not be struction does open a wide door for corruption, it committed, as they would have no office. 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 bas 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 ofice 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 en our duty by repealing this law; and thereby doing titled to the emoluments annexed to an office. Al- all in our power to correct the evil. If the judges though they are judges, they cannot be guilty of are entitled to their salaries under the Constitution, malfeasances, because they have no office. They our repeal will not affect them; and they will

, no are only quasi judges so far as regards the duties, doubt, resort to their proper remedy. For where but real judges so far as regards the salary. It there is a Constitutional right, there must be a must be the salary, then, and not the duties which Constitutional remedy. constitute a judge. For my part, I do not know Mr. Olcott, of New Hampshire, thought the under what class of things to range them, or what subject was of so much importance as to merit pame to give them. They are unacknowledged furiher consideration. The arguments of the genby the letter, spirit, or genius, of our Constitution, tleman from Kentucky, however ingenious, had and are to me non-descripts.

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 Constitation: 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 For these reasons, Mr. O. moved the postponea judge, be correct, what would you do in such an ment of the consideration of the question. event, with the district judges of the States who Mr. Cocke. of Tennessee.-This act is said to formed that junction ? Both would be unneces- be entirely experimental, and it is further said, sary, and you would have, in a single State, two that no inconveniences had arisen under it.

He judges of equal and concurrent jurisdiction; or thought serious inconveniences had arisen. The one a real judge, with an office, and another a inconvenience of paying $137,000 a year was quasi judge, without an office. The States also truly serious; and it was an inconvenience which forming such junction, would be equally embar-lought to be got rid of as soon as possible. It was


Judiciary System.

JANUARY, 1802.

expected that gentlemen opposed to the resolu- would be confirmed by an examination of the tion would come forward with their arguments Constitution, which in every section recognised against it. If, however, they had no arguments or referred to it. to use, he thought his friend from Kentucky had The Constitution, in the construction of the brought forward reasons so cogent and experimen- Executive, Legislative, and Judiciary departments, tal that the House must be convinced of the pro- had assigned to each a different tenure. The Prespriety of the repeal.

ident was chosen for four years; the Senate for Mr. Dayton, of New Jersey, trusted it was not six years, subject to a prescribed rotation biennithe disposition of the mover to press a decision ally; the House of Representatives for two years; to-day. He thought it would be improper to post- and the Judiciary during good behaviour. It says pone the discussion, as gentlemen would thereby to the President, at the expiration of every four be precluded from offering their opinions on the years, you shall revert to the character of a prisubject. He hoped the motion for postponement vate citizen, however splendid your talents or conwould be withdrawn, that other gentlemen might spicuous your virtue. Why? Because you have have an opportunity to speak.

assigned to you powers which it is dangerous to The motion was withdrawn.

exercise. You have the power of creating offMr. J. Mason, of Massachusetts, said, it would ces and officers. You have prerogatives. The be agreed on all hands that this was one of the temptation to an abuse of your power is great. most important questions that ever came before a Such has been the uniform experience of ages. Legislature. Were he not of this opinion he The Constitution holds the same language to the would not have risen to offer his sentiments. But Senate and House of Representatives: It says, it he felt so deep an interest in the question, and is necessary for the good of society that you also from the respect which he entertained for the dis- should revert at short periods to the mass of the trict of country he represented, he deemed it his people, because to you are consigned the most duty to meet the subject, and not be satisfied with important duties of Government, and because you giving to it his silent negative.

hold the purse-strings of the nation. It was well known, and he presumed it would To the Judiciary: What is the language applied be readily agreed to, that no people on earth, for to them? The judges are not appointed for two, the last twenty-four years, had been so much in four, or any given number of years; but they the habit of forming systems of government as the hold their appointments for life, unless they mispeople of the United States. Nor had any peo- behave themselves. Why? For this reason: ple been so fortunately situated for cool and cor- They are not the depositaries of the high prerogrect deliberation. In the Constitutions they had atives of Government. They neither appoint io formed, it would appear that there had been an office, or hold the purse-strings of the country, or uniform concurrence in the establishment of one legislate for it. They depend entirely upon their great prominent feature, and also in the applica- talents, which is all they have to recommend tion of one uniform principle to that feature: that them. They cannot, therefore, be disposed to perthe Legislative, the Executive, and the Judicial, vert their power to improper purposes. What are should form the three great departments of Gov- their duties ?. To expound and apply the laws. ernment, and that they should be distinct from To do this, with fidelity and skill, requires a length and independent of each other; and the more the of time. The requisite knowledge is not to be proceedings and sentiments of the people were procured in a day. These are the plain and strong examined, the more clearly would it appear that reasons which must strike every mind, for the all the new and additional checks created, had different tenure by which the judges hold their been applied to adjust the relative weakness or offices, and they are such as will eternally endure strength of the several departments of Govern- wherever liberty exists. ment. The same principle had been observed in On examination, it will be found that the peothe old world, whenever an opportunity presented ple, in forming their Constitution, meant to make for forming a constitution, having for its object, ihe judges as independent of the Legislature as the protection of individual rights. It accorded, of the Executive. Because the duties which they too, with the uniform opinions of the most cele- have to perform, call upon them to expound not brated historians and politicians, both of Europe only the laws, but the Constitution also; in which and America; with the opinions and practices of is involved the power of checking the Legislaall our Legislatures. Nor had Mr. Mason ever ture in case it should pass any laws in violation heard any one bardy enough to deny the propriety of the Constitution. For this reason it was more of its observance.

important that the judges in this country should He well recollected, that among the great griev. be placed beyond the control of the Legislature, ances, which had roused us into an assertion of than in other countries where no such power atour independence of England, it was declared in taches to them. the instrument asserting that independence," that Mr. Mason challenged gentlemen to exhibit a the Crown had the appointment of judges de- single instance, besides that lately furnished by pendent on its will and favor.”

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 10 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

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