stanced, by a single law to dash them out of ex

istence.

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 violation 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 during 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 provison? 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?

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 the influence of these passions; and for these reasons the Constitution had put them out of the power of the Legislature.

7th CoN-2

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.

Besides, said Mr. M. even if there be not a great 'pressure of business, had we not better pay the paltry sum of thirty or forty thousand dollars for a system too broad, than have one that is too narrow?

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

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

JANUARY, 1802.

SENATE.

But, sir, if, with that poor measure of ability which it has pleased God to give me, I march, on that ground which I have been accustomed to deem solid. I should say that, in so far as the terror of our Judicial institutions prevented the perpetration of crimes, in that same degree are those institutions useful. This would be my mode of reasoning, but for the wonderful discovery made by the honorable mover of the resolution.

We have been told of the great expense of the Judiciary that it amounted to $137,000. And thus attributing the whole expense of the establishment to this particular law, it has been assumed in argument that to repeal the law would save $137.000. If the other arithmetical arguments of the gentleman were equally incorrect, his inferences will be entitled to but little attention.

Of this sum, it appears, from a report of the Secretary of the Treasury, that $45,000 are for the contingent expenses of jurors, witnesses, &c., which serves in some measure to show that it is expected much business will be actually done.

The expense arising under this law, that it is proposed to repeal, amounts to thirty thousand dollars, exclusive of fifteen thousand dollars estimated for contingent expenses, making, together, forty-five thousand dollars. But let us not stint the allowance; throw in a few thousand more, and let the whole be stated at fifty-one thousand; apportion this sum among the people of the United States, according to the census lately taken, and you will find that each individual will pay just one cent. And for this insignificant saving of a cent a man, we are called upon to give up all

that is valuable to a nation.

a year, and sit twice a year at the seat of Government. Without inquiring into the accuracy of a statement made by the gentleman respecting the courts of England, in which, I apprehend, he will find himself deceived, let me ask what would be the effects of the old system here? Cast an eye over the extent of our country, and a moment's consideration will show that the First Magistrate, in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy. Can it be possible that men advanced in years, (for such alone can have the maturity of judgment fitting for the office;) that men educated in the closet-men who, from their habits of life, must have more strength of mind than of body; is it, I say, possible that such men can be running from one end of the continent to the other? Or, if they could, can they find time to hear and decide causes? I have been told by men of eminence on the bench, that they could not hold their offices under the old arrangement.

What is the present system? You have added to the old judges seven district and sixteen circuit judges. What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be, that the check established by the Constitution, wished for by the people, and necessary in every contemplation of common sense, is destroyed. It had been said, and truly, too, that Governments are made to provide against the follies and vices of men. For to suppose that Governments rest upon reason is a pitiful solecism. If mankind were reasonable, they would want no Government. Hence, checks are required in the distribution of power among those who are to exercise it for the benefit of the people. Did the people of America vest all powers in the Legislature? No; they had vested in the judges a check intended to be efficient-a check of the first necessity, to prevent an invasion of the Constitution by unconstitutional laws-a check which might prevent any faction from intimidating or annihilating the tribunals them

On this ground, said Mr. MORRIS, I stand to arrest the victory meditated over the Constitution of my country; a victory meditated by those who wish to prostrate that Constitution for the furtherance of their own ambitious views. Not of him who had recommended this measure, nor of those who now urge it; for, on his uprightness and their uprightness, I have the fullest reliance; but of those in the back-ground who have further and higher objects. These troops that protect the outworks are to be first dismissed. Those posts which present the strongest barriers are first to be taken, and then the Constitution becomes an easy prey.

Let us then, secondly, consider whether we have constitutionally a power to repeal this law. [Here Mr. MORRIS quoted the third article and first section of the Constitution.] I have heard a

verbal criticism about the words shall and may. which appeared the more unnecessary to me, as the same word, shall, is applied to both members of the section. For it says "the judicial power, &c. shall be vested in one Supreme Court and such inferior courts as the Congress may, from time to time, ordain and establish." The Legislature, therefore, had, without doubt, the right of determining, in the first instance, what inferior courts should be established; but when established, the words are imperative, a part of the judicial power shall vest in them. And "the judges shall hold their offices during good behaviour." They shall receive a compensation which shall not be diminished during their continuance in office. Therefore, whether the remarks be applied to the tenure of office, or the quantum of compensation, the Constitution is equally imperative. After this exposition, gentlemen are welcome to any advantage to be derived from the criticism on shall and may. But another criticism, which, but for its serious effects, I would call pleasant, has been made: the amount of which is, you shall not take the man from the office, but you may take the office from the man; you shall not drown him, but you may sink his boat under him; you shall not put him to death, but you may take away his life. The Constitution secures to a judge his office, says he shall hold it, that is, it shall not be taken from him during good behaviour; the Legislature shall not diminish, though their bounty may increase, his salary; the Constitution provides perfectly for the inviolability of his tenure; but yet we may destroy the office which we cannot take away, as if the destruction of the office would not as effectually deprive him of it as the grant to another person. It is admited that no power derived from the Constitution can deprive him of the office, and yet it is contended that by repeal of the law that office may be destroyed. Is not this absurd? It had been said, that whatever one Legislature can do another can undo; because no Legislature can bind its successor, and therefore that whatever we make we can destroy. This I deny, on the ground of reason, and on that of the Constitution. What! can a man destroy his own children? Can you annul your own compacts? Can you annihilate the national debt? When you have by law created a political existence, can you, by repealing the law, dissolve the corporation you had made? When, by your laws, you give to an individual any right whatever, can you. by a subsequent law, rightfully take it away? No. When you make a compact you are bound by it. When you make a promise you must perform it. Establish the contrary doctrine, and what follows? The whim of the moment becomes the law of the land; your country will be looked upon as a den of robbers; every honest man will fly your shores. Who will trust you, when you are the first to violate your own contracts? The position, therefore, that the Legislature may rightfully repeal every law made by a preceding Legislature, when tested by reason, is untrue; and it is equally untrue when compared with the precepts of the Constiution; for, what does the Constitution say?

JANUARY, 1802.

"You shall make no ex post facto law." this an ex post facto law?

Is not

Gentlemen say the system of the last session is mere theory. For argument sake, it shall be granted; and what then is the language of reason? Try it; put it to the test of experience. What respect can the people have for a Legislature that. without reflection, meets but to undo the acts of its predecessors? Is it prudent, is it decent, even if the law were unwise, thus to commit our reputation and theirs? Is it not highly dangerous to call upon the people to decide which of us are fools, for one of us must be?

And what would be the effect on the injured man who seeks redress in a court of justice, and whom, by this repeal, you shall have deprived of his right? You have saved him a miserable cent, and you have perhaps utterly ruined him.

But the honorable mover of the resolution has told us not only what is, but what is to be. He has told us not only that suits have decreased, but that they will decrease, and, relying on this preconception, informs us that the internal taxes will be repealed; and grounds the expediency of repealing the judiciary law, on the annihilation of these taxes. Thus, taking for granted the nonexistence of a law that yet exists, he infers from its destruction, and the consequent cessation of suits under it, the inutility of the judicial establishment. And when he has carried his present point, and broken down the judiciary system, he will tell us, perhaps, that we may as well repeal the internal taxes, because we have no judges to enforce the collection of them.

But what will be the effect of these repeals, and of all these dismissions from office? I impeach not the motives of gentlemen who advocate this measure. In my heart I believe them to be upright. But they see not the consequences. We are told the States want, and ought to have, more power. We are told that they are the legitimate sources from which the citizen is to derive protection. Their judges are, I suppose, to enforce our laws. Judges appointed by State authority, supported by State salary, and looking for promotion to State influence, or dependent upon State party. There are some honorable gentlemen now present, who sat in the Convention which formed this Constitution. I appeal to their recollection, if they have not seen the time when the fate of America was suspended by a hair? my life for it, if another convention be assembled, they will part without doing anything. Never, in the flow of time, was there a moment so propitious, as that in which the Convention assembled. The States had been convinced, by melancholy experience, how inadequate they were to the management of our national concerns. The passions of the people were lulled to sleep; State pride slumbered; the Constitution was promulgated; and then it awoke, and opposition was formed; but it was in vain. The people of America bound the States down by this compact.

One great provision of the Constitution—a provision that exhibited the sublime spectacle of a great State bowing before the tribunal of justice