The PRESIDENT laid before the Senate a letter signed William Doughty, clerk, with the general account of the late Treasurer of the United States, to the 30th of September, 1801; which was read, and ordered to lie on file. WEDNESDAY, January 6. Mr. BRECKENRIDGE moved that the Senate proceed to the consideration of the President's Message, delivered at the commencement of the session. Agreed to. JUDICIARY SYSTEM. Mr. MASON called for the reading of the Message, which was in part read; when the further reading of the whole document was suspended, and that part only read, which relates to the Judiciary System. Upon which Mr. BRECKENRIDGE, from Kentucky, rose, and stated that two days ago he had given notice that on this day he would submit to the consideration of the Senate two resolutions respecting the Judiciary Establishment of the United States. As, however, those resolutions were not necessarily connected, and as they might be distinctly discussed, he would at present confine himself to moving the first resolution; without however foreclosing to himself the right of submitting the second after the disposition of the first. He, therefore, moved that the act passed last session respecting the Judiciary Establishment of the United States, be repealed. [This is the act which created sixteen new circuit judges.] The motion was seconded by Mr. MASON. DENT, Mr. BRECKENRIDGE said he did not desire to place, within the area of the Senate Chamber, as the President shall allot. Whereupon, a motion was made to reconsider the above resolution, and agreed to. The yeas and nays being taken, which were-yeas 17, nays 9. It was then moved to amend the resolution by adding after the word " stenographer," "he having given bond 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 stoodyeas 10, nays 18. It was then moved to agree to the original resolution amended, by adding the words, " or note-taker" after the word "stenographer;" which passed in the affirmative. The yeas and nays being required were-yeas 16, nays 12. On Wednesday the editor had, accordingly, assigned to him a convenient place in the lower area, from which he took notes of the proceedings of the Senate. On the adoption of the above resolution, which opens a new door to public information, and which may be considered as the prelude to a more genuine sympathy between the Senate and the people of the United States, than may have heretofore subsisted, by rendering each better acquainted with the other, we congratulate, without qualification, every friend to the true principles of our republican institutions. JANUARY, 1802. precipitate a vote on the question. But, having given notice two days since of his intention to move this resolution, he was himself prepared, if other gentlemen were prepared, to offer his sentiments on the subject. But if this were not the case; if gentlemen were not prepared to enter into a discussion of a point of such importance, he was not anxious for immediate consideration. Mr. TRACY observed that the ordinary mode of procedure in Senate had been to refer, in the first instance, each substantive member of the President's Message to a select committee. But though this was the usual course, yet he felt in no way hostile to any mode of doing business, which should be most agreeable to the gentleman from Kentucky, or to the House. With an adherence to the ordinary course, he would have been better pleased, for the substantial reason, that by a reference of the subject to a select committee, on receiving a report, the minds of the House would be drawn more precisely to the points involved in it, than could be expected from a resolution so loose as the present, which could only give rise to verbal discussions. Another course of procedure had not been unusual that of obtaining leave to bring in a bill, in which event, the same result desired by Mr. TRACY would be insured, viz: the reference of the bill to a committee. Mr. S. T. MASON differed from the gentleman from Connecticut. He believed the mode, now pursued, was perfectly correct, and conformable to a principle adopted this session, that the Senate was to be considered as in a committee of the whole on the President's Message, whenever taken up. Nor did he discern the necessity, in a body so select as this, of referring each subject to a select committee. But as the subject is extremely important, and some gentlemen seemed unprepared for the discussion, he moved its postponement till Friday. Mr. BRECKENRIDGE said, that though he had given notice, in his opinion sufficient, of his purpose, yet, not wishing a precipitate discussion, he would agree to the desired delay. The consideration of the resolution was then deferred to Friday next. THURSDAY, January 7. A message from the House of Representatives informed the Senate that the House have passed a bill for the apportionment of representatives among the several States, according to the second enumeration, in which they desire the concurrence of the Senate. The bill was read the first time, and, by unanimous consent, a second time. NICHOLAS, ELLERY, JACKSON, and STONE, to conOrdered, That it be referred to Messrs. LOGAN, sider and report thereon. Mr. TRACY, from the committee to whom was referred the bill concerning the library for the use of both Houses of Congress, reported amendments; which were read, and ordered to lie for consideration. JANUARY, 1802. FRIDAY, January 8. Judiciary System. The PRESIDENT read a letter addressed to him, and signed Thomas Tingey, and others, the vestry of Washington parish, in behalf of themselves and the other members of that church, soliciting the use of the room in the Capitol now occupied by the Court, as a place of worship on Sundays, during the inclemency of Winter. Mr. LOGAN, from the committee, reported the bill for the apportionment of representatives among the several States, according to the second enumeration, without amendment; and it was agreed that the further consideration of this bill should be postponed to Monday next. JUDICIARY SYSTEM. Agreeably to the order of the day, the Senate proceeded to the consideration of the motion made on the 6th instant, to wit: "That the act of Congress passed on the 13th day of February, 1801, entitled An act to provide for the more convenient organization of the Courts of the United States,' ought to be repealed." Mr. BreckenrIDGE then rose and addressed the President, as follows: SENATE. brought by British creditors; this species of controversy is nearly at an end. In Pennsylvania, the docket has been swelled by prosecutions in consequence of the Western insurrection, by the disturbances in Bucks and Northampton counties; and by the sedition act. These I find amount in that State to two hundred and forty suits. In Kentucky, non-resident land claimants have gone into the federal court from a temporary convenience: because, until within a year or two past, there existed no court of general jurisdiction co-extensive with the whole State. I find, too, that of the six hundred and odd suits which have been commenced there, one hundred and ninetysix of them have been prosecutions under the laws of the United States. In most of the States there have been prosecutions under the sedition act. This source of litigation is, I trust, forever dried up. And, lastly, in all the States a number of suits have arisen under the excise law; which source of controversy will, I hope, before this session terminates, be also dried up. But this same document discloses another important 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 this law. This I shall do; and shall endeavor to show. 1. That the law is unnecessary and improper, and was so at its passage; and 2. That the courts and judges created by it, can and ought to be abolished. 1st. That the act under consideration was unnecessary and improper, is, to my mind, no difficult task to prove. No increase of courts or judges could be necessary or justifiable, unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them. To hold out a show of litigation, when in fact little exists, must be impolitic; and to multiply expensive systems, and create hosts of expensive officers, without having experienced an actual necessity for them, must be a wanton waste of the public treasure. tucky and Tennessee, whose suits are summed up in the aggregate) it appears, that in 1799 there were one thousand two hundred and seventy-four, and in 1800 there were six hundred and eighty-seven suits commenced; showing a decrease of five hundred and eighty-seven suits. Could it be necessary then to increase courts when suits were decreasing? Could it be necessary to multiply judges, when their duties were diminishing? And will I not be justified, therefore, in affirming, that the law was unnecessary, and that Congress acted under a mistaken impression, when they multiplied courts and judges at a time when litigation was actually decreasing? But, sir, the decrease of business goes a small way in fixing my opinion on this subject. I am inclined to think, that so far from there having been a necessity at this time for an increase of courts 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 day of June last, there were depending in all the circuit courts, (that of Maryland only excepted, whose docket we have not been furnished with,) one thousand five hundred and thirty-nine suits. It shows that eight thousand two hundred and seventy-six suits of every description have come before those courts, in ten years and upwards. From this it appears, that the annual average amount of suits has been about eight hundred. But sundry contingent things have conspired to swell the circuit court dockets. In Maryland, Virginia, and in all the Southern and Southwestern States, a great number of suits have been fairly extracted from those powers subjects of litigation sufficient for six supreme and thirty-two inferior court judges? To me it appears impossible. The judicial powers given to the federal courts were never intended by the Constitution to embrace, exclusively, subjects of litigation, which could, with propriety, be left with the State courts. Their jurisdiction was intended principally to extend to great national and foreign concerns. Except cases arising under the laws of the United States, I do not at present recollect but three or four kinds in which their power extends to subjects of litigation, in which private 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 apportion'ed 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, 6 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 appoint ment, 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? 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 may grow out of it; for, in the construction of all instruments, that which will lead to inconvenience, mischief, or absurdity, ought to be avoided. This doctrine has another difficulty to reconcile: After the law is repealed, they are either judges or they are not. If they are judges they can be impeached; but for what? For malfeasance in office only. How, I would ask, can they be impeached for malfeasancs in office, when their offices are abolished? 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. 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 leglslation; 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. Upon the whole, sir, as all courts under any free Government must be created with an eye to the administration of justice only; and not with any regard to the advancement or emolument of individual men; as we have undeniable evidence before us that the creation of the courts now under consideration was totally unnecessary; and as no Government can, I apprehend, seriously deny that this Legislature has a right to repeal a law enacted by a preceding one, we will, in any event, discharge 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." From all these circumstances he concluded that the people of America, when they formed a system for their Federal Government, intended to establish this great principle; and the conclusion 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. 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. The 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 passed in execution of a Constitution, under which the judges held their offices during good behaviour. In truth, no such power existed, nor was it in the power of any Legislature, so circum |