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JANUARY, 1802.

Judiciary System.


stanced, by a single law to dash them out of ex- Still, if the gentlemen would not agree with istence.

him as to the unconstitutionality of the measure The opinion of Mr. Mason, therefore, was, that proposed, he would ask, was it expedient? Were this Legislature have no right to repeal the judi- ihere not great doubts existing throughout the ciary law; for such an act would be in direct vio- United States? Ought not each gentleman to say, lation of the Constitution.

though I may have no doubts or hesitancy, are The Constitution says: “ The judicial power not a large portion of our citizens of opinion that of the United States shall be vested in one Su- it would violate the Constitution ? If this diverpreme Court, and in such inferior courts as the sity of sentiment exists, ought not the evils under Congress may, from time to time, ordain and the judiciary law to be very great before we touch establish. The judges, both of the Supreme it? Ought we not to aim at harmonizing, instead and inferior courts, shall hold their offices du- of dividing our citizens ? Was not the Consti. ring good behaviour, and shall, at stated times, tution a sacred instrument; an instrument ever * receive for their services, a compensation, which to be approached with reverence; an instrument

shall not be diminished during their continuance which ought not lightly to be drawn from its halin office."

lowed retreat, and subjected to the flux and reflux Thus it says, "the judges shall hold their offi- of passion ? But where is the evil complained of ? ces during good behaviour.” How can this direc- This system was established only last session ; tion of the Constitution be complied with, if the scarcely had it been yet organized; scarcely had Legislature shall, from session to session, repeal we tried it on its very threshold; where then the the law under which the office is held, and remove necessity of being so pointed, as to destroy a systhe office? He did not conceive that any words, tem scarcely formed three days ago ? Does not which human ingenuity could devise, could more this manifest precipitation ? Will it not manicompletely get over the remarks that had been fest more magnanimity, more rationality, to abide made by the gentleman from Kentucky. But that by it until we try it; instead of taking up a pen gentleman says, that this provision of the Consti- and dashing it out of existence ? iution applies exclusively to the President. He The reason that the suits depending were not considers it as made to supersede the powers of so numerous, arose from the nature of the old esthe President to remove the judges. But could tablishment. That establishment had no parallel. this have been the contemplation of the framers It carried with it the seeds of its own dissolution. of the Constitution, when even the right of the No set of judges could be found physically hardy President to remove officers at pleasure, was a enough to execute it. Such was the labor of their matter of great doubt, and had divided in opinion duties, that they were denied time for study or our most enlightened citizens. Not that he stated improvement. Besides, a case was heard at one this circumstance because he had doubts. He term by one judge, and postponed for consideration thought the President ought to have the right; to the next term. At that term another judge but it did not emanate from the Constitution ; was appeared, and all the arguments were to be gone pot expressly found in the Constitution, but sprang over anew, and the same thing might happen from Legislative construction.

again and again. Was this the way to extend Besides, if Congress have the right to repeal justice to our citizens? Was not the delay equivthe whole of the law, they must possess the right alent to a denial of justice? It was a fact that 10 repeal a section of it. If so, they may repeal three-fourths of the time of the judges had been the law so far as it applies to a particular district, taken up in travelling. and thus get rid of an obnoxious judge. They It may be true, that the number of suits in the may remove his office from him. Would it not federal courts is lessened; and if the internal be absurd still to say, that the removed judge held taxes are to be swept away, it may be still more bis office during good behaviour ?

lessened as far as depends upon that source. But The Constitution says: " The judges shall, at is it possible, that suits will go on diminishing as stated times, receive for their services, a compen- the gentleman seems to think? Is reason so pre- sation, which shall not be diminished during dominant? Is the millenium so near at hand?

their continuance in office.” Why this provis- On the contrary, is not our commerce increasing con? Why guard against the power to deprive with great rapidity ? Is not our wealth increasthe judges of their pay in a diminution of it, and ing? And will not controversies arise in propornot provide against what was more important, tion to the growth of our numbers and property ? their existence ?

controversies, which will go to the federal tribuMr. Mason knew that a Legislative body was nals, as soon as the judiciary system is fully esvecasionally subject to the dominance of violent tablished ? passions; he knew that they might pass unconsti- By the documents quoted by the gentleman from tutional laws; and that the judges, sworn to sup- Kentucky, it appears that more business has been port the Constitution, would refuse to carry them lately done in the federal courts than in any other into effect; and he knew that the Legislature antecedent time, except in one or two counties in might contend for the execution of their statutes: Pennsylvania. 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 Cos -2


Judiciary System.

JANUARY, 1802.

Is it not a melancholy consideration, that in the number of the superior, have they not the same many of the European States, the costs are equal power to reduce the number of the inferior judges? to the principle contended for? It would be hon- Are we to be eternally bound by the follies of a orable to the United States to exhibit a different law which ought never to have been passed ? example. It would be honorable to them to hold Why the expression in the Constitution, - The out an example, even if confined to foreigners, of judicial power shall be vested in such inferior prompt and efficacious justice, though at the ex- courts as Congress may, from time to time, ordain pense of $100,000. Such an example would be a ' and establish,” if it had been intended, as is now cause for national triumph, and our people would contended, that the office being once bestowed, 10 exult in it.

change can be made? Inasmuch, therefore, as to render the judges If the case of those who have accepted those respectable, it was necessary to make their ap- offices, be considered as a hard one, may it not be pointments permanent; as time, labor, experience, said that they knew the Constitution, and the and long study, were required to perfect any man tenure by which their offices were to be held ? In in a knowledge of the laws of his country; inas- our regard for individual interest, we ought not to much as it has been thought good policy, that the sacrifice the great interests of our country; and judges should be well paid, and that they should was it not demonstrable that, if twenty-one judges be so placed as to be divested of all fear, and nei- were sufficient when twelve hundred suits existed, ther to look to the right 'nor left; inasmuch as they were equally so when there were no more they should be so placed as-to render them inde- than seven hundred ? pendent of Legislative as well as of Executive The gentleman from Massachusetts was wrong power; he hoped this law would not be repealed. in stating that Maryland was the only State that

These were the reasons which Mr. M. assigned had repealed a law creating judiciary offices. as those which would influence his decision. He Virginia, if he was not misinformed, had done the acknowledged, that he had not entered the House same thing. But he wanted not these precedents. prepared to offer his sentiments; but, as the ques. Our own archives furnished us with abundant pretion was about to be put, he had thought it best to cedents. We had reduced the judges of the Suoffer them, such as they were, rather than to give preme Court from six to five; we had annihilated a silent vote on a subject of such great importance. two districts. The very gentlemen opposed now

Mr. Wright, of Maryland, said it must be to the repeal of this law, had voted for these agreed that the subject was one of great import- measures. Thus it appeared, that, though the ance, from its effect upon our revenues. If the Constitution justified the measure then, it prohibrepeal of the act of last session was Constitutional, ited it now ! he presumed there could be little doubt of its Believing the Judiciary law of the last session expediency, from the documents on our table. had arisen from a disposition to provide for the Has the Constitution vested the Legislature with warm friends of the existing Administration; bea power over the subject of the resolution ? If so, lieving that great inconveniences had arisen under then should a law, which had been the effect of a it; believing its expense to be oppressive; and flux of passion, be repealed by a reflux of reason. believing that if one Legislature had a right to He believed that it had been introduced at the pass it, another Legislature had the same right to period of an expiring administration. It had been repeal it; he trusted that, however a preceding resisted by the republican side of the Senate, and Legislature might have been governed by pashe trusted that now, on the return of reason, it sion, the present Legislature would, by repealing would be repealed.

it, show that they were governed by reason. An allusion has been made to the State of Ma- Mr. Morris, of New York.—Mr. President, I ryland, which had repealed a law respecting the am so very unfortunate, that the arguments in judiciary. Mr. W. here quoted the constitution favor of the motion have confirmed my opinion of that State, whose provisions, he observed, so that the law to which it refers ought not to be refar as respected the tenure of the office of a judge, pealed. The honorable mover has rested his propcorresponded with those of the Constitution of the osition on two grounds: United States. The Legislature of that State had 1st. That the Judiciary law passed last session been of opinion, and correctly too, that they did is unnecessary; and, possess the power of repealing a law formed by 2dly. That we have a right to repeal it, and their predecessors. And the Legislature of the ought to exercise that right. United States possessed the same power. This The numerical mode of argument made use of they had already determined by the very act of to establish his first point is perfectly novel, and the last session, which, while it created a number commands my tribute of admiration. This is the of new judges, abolished the offices of several dis- first time I ever heard the utility of the courts of trict judges.

justice estimated by the number of suits carried It was clear that the Constitution meant to before them. I have read that a celebrated monguard the officer and not the office. Will it be arch of England, the great Alfred, had enacted said that what the Legislature makes to-day, can- such laws, established such tribunals, and organnot be annihilated to-morrow? Even as to the ized such a system of police, that a purse of gold judges of the Supreme Court, had not the law first might be hung up on the highway without any constituted six, and was it not now by law reduc- danger of being taken. Had the honorable gened to five? And if Congress has power to reduce tleman from Kentucky existed in those days, he

JANUARY, 1802.
Judiciary System.

SENATE. would, perhaps, have attempted to convince old Gentlemen say, recur to the ancient system. Alfred that what he considered as the glory of his What is the ancient system? Six judges of the Sureign was its greatest evil. For, by taking the un-preme Court to ride the circuit of America twice frequency of crimes as a proof that tribunals were a year, and sit iwice a year at the seat of Governunnecessary, and thus boldly substituting effect ment. Without inquiring into the accuracy of a for cause, the gentleman might demonstrate the statement made by the gentleman respecting the inutility of any institution by a system of reason-courts of England, in which, I apprehend, he will ing the most fallacious.

find himself deceived, let me ask what would be Bui, sir, if, with that poor measure of ability the effects of the old system here? Cast an eye which it has pleased God to give me, I march.on over the extent of our country, and a momeni's that ground wbich I have been accustomed to consideration will show that the First Magistrate, deem solid, I should say that, in so far as the ter- in selecting a character for the bench, must seek ror of our Judicial institutions prevented the per- less the learning of a judge than the agility of a petration of crimes, in that same degree are those post-boy. Can it be possible that men advanced institutions useful. This would be my mode of in years, (for such alone can have the maturity of reasoning, but for the wonderful discovery made judgment fitting for the office;) that men educatby the honorable mover of the resolution. ed in the closet-men who, from their habits of

We have been told of the great expense of the life, must have more strength of mind than of Judiciary—that it amounted to $137,000. And body; is it, I say, possible that such men can be thus attributing the whole expense of the estab- running from one end of the continent to the lishment to this particular law, it has been assumed other? Or, if they could, can they find time to in argument that to repeal the law would save hear and decide causes? I have been told by men $137.000. If the other arithmetical arguments of of eminence on the bench, that they could not the gentleman were equally incorrect, his inser- hold their offices under the old arrangement. ences will be entitled to but'little attention.

What is the present system? You have added Of this sum, it appears, from a report of the to the old judges seven district and sixteen circuit Secretary of the Treasury, that $45,000 are for judges. What will be the effect of the desired the contingent expenses of jurors, witnesses, &c., repeal? Will it not be a declaration to the rewhich serves in some measure to show that it is maining judges that they hold their offices subject expected much business will be actually done. to your will and pleasure ?. And what will be

The expense arising under this law, that it is the result of this? It will be, that the check esproposed to repeal, amounts to thirty thousand tablished by the Constitution, wished for by the dollars, exclusive of fifteen thousand dollars esti- people, and necessary in every contemplation of mated for contingent expenses, making, together, common sense, is destroyed. "It had been said, forty-five thousand dollars. But let us not stint and truly, too, that Governments are made to prothe allowance; throw in a few thousand more, vide against the follies and vices of men. For and let the whole be stated at fifty-one thousand to suppose that Governments rest upon reason is apportion this sum among the people of the Unit- a pitiful solecism. If mankind were reasonable, ed States, according to the census lately taken, they would want no Government. Hence, checks and you will find that each individual will pay are required in the distribution of power among just one cent. And for this insignificant saving those who are to exercise it for the benefit of the of a cent a man, we are called upon to give up all people. Did the people of America vest all powthat is valuable to a nation.

ers in the Legislature ? No; they had vested in One of the great purposes of a Government is the judges a check intended to be efficient-a to secure the people from foreign invasion. To check of the first necessity, to prevent an invasion be ready to repel such invasion requires a great of the Constitution by unconstitutional laws-a revenue, and many officers become necessary to check which might prevent any faction from incollect it. Such an invasion, however, may or timidating or annihilating the tribunals themmay not take place. If I judge from certain doc- selves. uments laid before us, those who administer our On this ground, said Mr. Morris, I stand to araffairs have but little apprehension of that event. rest the victory meditated over the Constitution If, then there be little or no such danger, or if the of my country; a victory meditated by those ho people be sufficiently secured against it, what else wish to prostrate that Constitution for the furtherhave they a right to ask for in return for their ance of their own ambitious views. Not of him money expended in the support of Government ? who had recommended this measure, nor of those They have a right to ask for the protection of the who now urge it; for, on his uprightness and their law in proper courts of justice, to secure the weak uprightness, I have the fullest reliance; but of against the strong, the poor against the rich, the those in the back-ground who have further and oppressed against the oppressor. And is this little higher objects. These troops that protect the outwhich they ask to be denied? Are the means by works are to be first dismissed. Those posts which which the injured can obtain redress to be cur- present the strongest barriers are first to be taken, tailed and diminished ? Much may be feared and then the Constitution becomes an easy prey. from armies. They may turn their swords against Let us then, secondly, consider whether we Gur bosoms; they may 'elevate a Chief to despotic have constitutionally a power to repeal this law, power. But what danger is to be apprehended Here Mr. Morris quoted the third article and from an army of judges?

first section of the Constitution.] I have heard a

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Judiciary System.


verbal criticism about the words shall and may: You shall make no ex post facto law.” Is not which appeared the more unnecessary to me, as this an ex post facto law? the same word, shall, is applied to both meinbers Gentlemen say the system of the last session is of the section. For it says the judicial power, mere theory. For argument sake, it shall be &c. shall be vested in one Supreme Court and granted; and what then is the language of reason ? such inferior courts as the Congress may, from Try it; put it to the test of experience. What time to time, ordain and establish.” The Legisla- respect can the people have for a Legislature that. ture, therefore, had, without doubt, the right of de- without reflection, meets but to undo the acts of termining, in the first instance, what inferior courts its predecessors ? Is it prudent, is it decent, even should be established; but when established, the if the law were unwise, thus to commit our repuwords are imperative, a part of the judicial power tation and theirs ? Is it not highly dangerous to shall vest in them. And "the judges shall hold call upon the people to decide which of us are their offices during good behaviour. They shall fools, for one of us must be ? receive a compensation which shall not be dimin. And what would be the effect on the injured ished during their continuance in office. There- man who seeks redress in a court of justice, and fore, whether the remarks be applied to the tenure whom, by this repeal, you shall have deprived of of office, or the quantum of compensation, the Con- his right? You have saved him a miserable cent, stitution is equally imperative. After this expo- and you have perhaps utterly ruined him. sition, gentlemen are welcome to any advantage But the honorable mover of the resolution has to be derived from the criticism on shall and may. told us not only what is, but what is to be. He

But another criticism, which, but for its scrious has told us not only that suits have decreased, effects, I would call pleasant, has been made: the but that they will decrease, and, relying on this amount of which is, you shall not take the man preconception, informs us that the internal taxes from the office, but you may take the office from will be repealed; and grounds the expediency of the man; you shall not drown him, but you may repealing the judiciary law, on the annihilation sink his boat under him ; you shall not put him of these taxes. Thus, taking for granted the nonto death, but you may take away his life. The existence of a law that yet exists, he infers from Constitution secures to a judge his office, says he its destruction, and the consequent cessation of shall hold it, that is, it shall not be taken from him suits under it, the inutility of the judicial estabduring good behaviour; the Legislature shall not lishment. And when he has carried his present diminish, though their bounty may increase, his point, and broken down the judiciary system, he salary; the Constitution provides perfectly for the will tell us, perhaps, that we may as well repeal inviolability of his tenure; but yet we may de- the internal taxes, because we have no judges to stroy the office which we cannot take away, as if enforce the collection of them. the destruction of the office would not as effec- But what will be the effect of these repeals, and tually deprive him of it as the grant to another of all these dismissions from office? I impeach person. It is admited that no power derived from not the motives of gentlemen who advocate this the Constitution can deprive him of the office, and measure. In my heart I believe them to be upyet it is contended that by repeal of the law that right. But they see not the consequences. We office may be destroyed. "Is not this absurd ? It are told the States want, and ought to have, more had been said, that whatever one Legislature can power. We are told that they are the legitimate do another can undo; because no Legislature can sources from which the citizen is to derive probind its successor, and therefore that whatever tection. Their judges are, I suppose, to enforce we make we can destroy. This I deny, on the our laws. Judges appointed by State authority, ground of reason, and on that of the Constitu- supported by State salary, and looking for promotion. What! can a man destroy his own chilotion to State influence, or dependent upon State dren ? Can you annul your own compacts ? Can party. There are some honorable gentlemen now you annihilate the national debt ? When you have present, who sat in the Convention which formed by law created a political existence, can you, by re- this Constitution. I appeal to their recollection, pealing the law, dissolve the corporation you had if they have not seen the time when the fate of made? When, by your laws, you give to an indi- America was suspended by a hair? my life for it, vidual any right whatever,can you. by a subsequent if another convention assembled, they will law, rightfully take it away? No. When you part without doing anything. Never, in the flow make a compact you are bound by it. When you of time, was there a moment so propitious, as that make a promise you must perform it. Establish in which the Convention assembled. The States the contrary doctrine, and what follows? The had been convinced, by melancholy experience, whim of the moment becomes the law of the land; how inadequate they were to the management of your country will be looked upon as a den of rob- our national concerns. The passions of the peobers; every honest man will fly your shores. ple were lulled to sleep; State pride slumbered ; Who will trust you, when you are the first to vio- the Constitution was promulgated; and then it late

your own contracts ? The position, therefore, awoke, and opposition was formed; but it was in that the Legislature may rightfully repeal every vain. The people of America bound the States law made by a preceding Legislature, when test- down by this compact. ed by reason, is untrue; and it is equally untrue One great provision of the Constitution-a prowhen compared with the precepts of the Consti- vision hat exhibited the sublime spectacle of a ution; for, what does the Constitution say? Igreat State bowing before the tribunal of justice

January, 1802.

Apportionment Bill.


is gone! Another great bulwark is now to be re

MONDAY, January 11. moved. You are told you must look to the States

The following Message was received from the for protection ; your internal revenues are to be President OF THE UNITED STATES: swept away; your sole reliance must rest upon commercial duties. In this reliance you will be Gentlemen of the Senate, and deceived. But what is to be the effect of all these

of the House of Representatives : changes ? I am afraid to say; I will leave it to I now communicate to you a memorial of the Comthe feelings and consciences of gentlemen. But missioners of the City of Washington, together with a remember

, the moment this Union is dissolved, letter of later date, which, with the memorial of Januwe shall no longer be governed by votes.

ary 28, 1801, will possess the Legislature fully of the Examine the annals of history. Look into the state of the public interests and of those of the City of records of time, see what has been the ruin of Washington confided to them. The moneys now due, every Republic. The vile love of popularity. Why and soon to become due, to the State of Maryland, on are we here? To save the people from their most the loan guarantied by the United States, call for an dangerous enemy; to save them from themselves. able with the payment of these moneys are deemed not

early attention. The lots in the city which are chargeWhat caused the ruin of the Republics of Greece only equal to the indemnification of the public, but to and Rome ? Demagogues, who, by flattery, gain- insure a considerable surplus to the city, to be employed the aid of the populace to establish despotism.ed for its improvement; provided they are offered for But if you will shut your eyes to the light of his- sale only in sufficient numbers to meet the existing detory, and your ears to the voice of experience, see mand. But the act of 1796 requires that they shall at least what has happened in your own times. be positively sold in such numbers as shall be nécessaIn 1789, it was no longer a doubt with enlight- ry for the punctual payment of the loans. Nine thouened statesmen, what would be the event of the sand dollars of interest are lately become due; three French Revolution; before the first of January, thousand dollars quarter-yearly will continue to be1790, the only question was, who would become come due ; and fifty thousand dollars, an additional the despot. The word liberty, indeed, from that loan, are reimbursable on the first day of November day to this, had been sounded in our ears, but next. These sums would require sales so far beyond never had any real existence; there is nothing the actual demand of the market, that it is apprehendleft but the word.

ed that the whole property may be there by sacrificed, We are now about to violate the Constitution. the public security destroyed, and the residuary interOnce touch it with unhallowed hands ; sacrifice est of the city entirely lost. Under these circumstanbut one of its provisions, and we are gone. We rect a rigorous execution of the law, to submit the sub

ces I have thought it my duty, before I proceed to dicommit the fate of America to the mercy of time ject to the consideration of the Legislature. Whether and chance.

the public interest will be better secured in the end, I hope the honorable gentleman from Maryland and that of the city saved, by offering sales commenwill pardon me, if, from the section of the law surate only to the demand at market, and advancing which he has cited, I deduce an inference diamet- from the Treasury, in the first instance, what these rically opposite to that for which he has contend- may prove deficient, to be replaced by subsequent sales, ed. He has told us that “the lasi Congress, in re- rests for the determination of the Legislature. If inducing the judges of the Supreme Court from dulgence for the funds can be admitted, they will probSIX 10 five, have exercised the right which is ably form a resource of great and permanent value; Dow to be used, and made a legislative construc- and their embarrassments have been produced only by tion of this clause in the Constitution.” But overstrained exertions to provide accommodations for look at the law; it declares that this reduction the Government of the Union. shall not be made until, by death or resignation,

TH : JEFFERSON. ooly five judges shall remain. Thus, in the very

JANUARY 11, 1802. moment when they express the opinion, that five The Message and papers therein referred to judges are sufficient, they acknowledge their in- were read, and referred to Messrs. Tracy, Wright, competency to remove the sixth judge, and there and Howard, to consider and report thereon. by make the Legislative declaration, ihat they The Senate proceeded to consider the amendhad not the right now contended for.

ments reported by the committee to whom was Mr. M. here noticed some other remarks which referred the bill, entitled "An act concerning the had fallen from the gentleman from Maryland, library for the use of both Houses of Congress," (Mr. Wright,) on the construction of the Consti- and the amendments, with further amendments, tution; and concluded by recapitulating his argu- were adopted. ments. A contract, said he, is made between the The bill was then read the third time and passGovernment and the Judiciary; the President ap- ed, as amended. points; the Legislature fixes his salary ; he accepts ihe office; the contract is complete. He is then

APPORTIONMENT BILL. under the protection of the Constitution, which The Apportionment bill, as received from the Deither the President nor Congress can infringe. House of Representatives, was taken up. This The contract is a solemn one. Can you violate bill fixes the ratio of representation at one mem2t ? If you can you may throw the Constitution ber for every 33,000 persons in each State. into the flames—it is goneit is dead.

Mr. Wells moved to strike out 33,000, his obWhen Mr. Morris had concluded his remarks, ject being to introduce 30,000, for which he asthe Senate adjourned.

signed his reasons at some length.

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