Although this subject had been recommended before, and committees had contemplated a revision and alteration of the system, I do not remember that a bill had ever been presented to either House of Congress until 1799. In that session, a bill was reported similar in its features to the act which passed last session. It might have been acted upon in the House of Representatives; of this however I am not confident; but I recollect it was printed, and the members of both Houses had it before them; and at the last session, with some alterations and amendments, it was enacted into a law. I believe all parties wished for a revision and amendment of the system, in respect to circuit courts; the difference of opinion was principally this: some supposed an increase of the judges of the Supreme Court to such a number as would render the duties of the circuit practicable for them, and provide for the completion of business, would be the best amendment; the others thought the law, as it passed, was preferable.

SENATE.

mitted within fifty miles of their place of session. The intention was, to insure a prompt execution of justice, and experiment alone can test the wisdom of the plan.

I take it to be a sound rule, adopted by all wise and deliberate bodies, not to repeal an existing law, until experiment shall have discovered errors, or unless there is a vice so apparent on the face of the law, as that justice shall require an immediate destruction of it. Has there been time to gain information by experiment? No man will pretend this as a justification of the repeal; for the little time the law has been in force, so far as I have obtained any knowledge upon the subject, it has gained credit.

Another maxim in legislation, I think, is correct, not to give up a law in existence, which is conversant about extensive and important concerns of the community, and about which there is a necessity of enacting some law, without seeing clearly what can be substituted for it, and that the substitute has manifest advantages. This resolution leads to no result, but a repeal. I have stated the errors of the former system of circuit courts, and if expense is an objection to the present system, as I have heard urged out of doors, the same, or nearly as much, must be incurred, if we increase the number of judges of the Supreme Court, as to effect a reform in the Circuit Court. Why repeal this law then, and leave us without any, or without any adequate to its purpose?

I acknowlege, that in deliberating upon this subject, we always assumed the principle, that the establishment of courts was important to protect the rights of the people; we did not fear an army of judges, as has been hinted by the gentleman last up. (Mr. JACKSON.) In this opinion we might be mistaken, but we were honest in our professions. Although some believed, that more of the business of the United States might be confided to the State courts; yet it is not within my recollection, that the question was considered in any measure a par- Is this system so very vicious, that it deserves ty question. I am confident, that at the session of nothing but abhorrence and destruction? It costs 1799, and for a long time before that, the friends us a little more than thirty thousand dollars, and of this law, which eventually passed last Winter, by it the number of circuit judges is increased to could not, nor did not, contemplate any change of sixteen; and by it likewise is contemplated reducing administration. A revision of the system was long the number of supreme judges to five, when it can a subject of deliberation; we believed an increase constitutionally be done. Is the expense an object, of circuit judges, to the number requisite to perform when by that expense we extend the jurisdiction the duties, would be an inconvenient increase of of a court over this vastly extensive, growing counthe Supreme Court; and though it was desirable try, and carry law and protection to every man? for the judges of the Supreme Court to see the peo-This country is in a singular condition; a great tract ple and be seen of them, yet the preference was given to the system now proposed to be repealed. We supposed it would be an evil to increase the number of judges of the Supreme Court to thirteen, fifteen, or seventeen. A court which is to act together, should not be numerous; on this subject all men have agreed; here may be danger of an army of judges." as the gentleman says; for although in Great Britain the twelve judges are sometimes called to give an opinion, yet no man will feel equal confidence in a tribunal of judges for the business of a court, consisting of many as of few; from three to five, the good sense and experience of all nations has declared to be about the proper number; and we thought it conducive to the general good, to establish tribunals in such manner as to carry justice to the door of every

man.

In this modification of the system, the jurisdiction of the circuit court has been extended, as it respects the sum in demand, of which they are to take cognizance, and as it respects the disputes which arise concerning the title of lands; and exclusive jurisdiction is given of all crimes com

of unsettled lands is peopling with rapidity, and numerous emigrations increase our population far beyond its natural increase; is it not of importance that courts should be located among them, early, to correct the restless spirit which is frequent in new and scattered settlements? And are not the emigrations composed of such as require the prompt assistance of the law, to preserve among them regularity? Punishment, to us, and to all good men, should be a strange work; but to prevent crimes, is the work of a God. I speak to gentlemen, who have many of them graced the judge's bench, and adorned the professional robe they have worn, and am therefore not obliged to be particular that I may be understood; a word to the wise will be sufficient. A judiciary, in a national point of view, is absolutely necessary, and an extension of it to every national purpose is equally necessary. To depend upon State courts, not under obligations nor amenable to you, besides having as much business allotted to them by the respective States as they can accomplish, and depending upon them, and not on us, for existence-will require only to be mentioned, to be exploded. Locating your

SENATE.

Judiciary System.

JANUARY, 1802.

judges in various parts of the country, by them A number of courts properly located will keep promulgating the national laws, which it is well the business of any country in such condition as but known has been a subject of great difficulty, and few suits will be instituted; and courts, badly orgiving them daily opportunity of mixing with peo-ganized will discourage suitors, and there will ple, not well disposed to order and law; may pre- be but few actions returned. From the number vent disorders and insurrections, and save millions of suits alone, there can no sound judgment be of expense, which pecuniary saving will be the formed. least of the important events arising from such a system.

But it will probably be said, the courts have not business to employ them; and the documents received from the Executive will be produced in evidence. And it may further be said, the President has in his Message recommended a repeal of this law. The words of the Message are: "The 'Judiciary system of the United States, and especially that portion of it lately erected, will of course present itself to the contemplation of Congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from 'the several States, and now lay before Congress, an exact statement of all the causes decided since 'the first establishment of the courts, and of those that were depending when additional courts and 'judges were brought in to their aid."

But there is another objection to the repeal of the judiciary law, which in my mind is conclusive: I mean the letter and spirit of the Constitution.

In the formation of every Government, in which the people have a share in its administration, some established and indisputable principles must be adopted. In our Government, the formation of a Legislative, Executive and Judiciary power, is one of the incontrovertible principles; and that each should be independent of the other, so far as human frailty will permit, is equally incontrovertible. Will it be expected, that I should quote Sidney, De Lolme, Montesquieu, and a host of elementary writers, to prove this assertion? There is probably no conflict of opinion upon this subject. When we look into our Constitution of Government, we shall find, in every part of it, a close and undeviating attention to this principle. Is this a recommendation to repeal? Suppose Our particular form is singular in its requirements, for argument's sake it is. Let us look at this "ex- that full force and operation be given to this all act" statement. In the recapitulation, 19th page important principle. Our powers are limited, many of document 8, there appears to have been insti- acts of sovereignty are prohibited to the National tuted 8,276 suits, and pending, when this court Government, and retained by the States, and many went into operation, 1,539. But on further in- restraints are imposed upon State sovereignty. If spection it will be found, that Maryland is entire- either, by accident or design, should exceed its ly omitted; this omission is unaccountable, since powers, there is the utmost necessity that some the means of knowledge were so near at hand.-timely checks, equal to every exigency, should be 119 causes undecided in Tennessee; 134 in North interposed. The Judiciary is established by the Carolina, and 331 in Virginia, are omitted; mak- Constitution for that valuable purpose. ing in the whole an error of five or six hundred In the British Government, the legislature is causes. In addition to this, the number of suits omnipotent to every legislative effect, and is a perin New York are not stated correctly by the state-petual convention for almost every Constitutional ment of the attorney when he made the return, purpose. Hence it is easy to discern the different and not one is carried out as pending in the recapart which must be assigned to the judiciary in pitulation; and the return of Massachusetts is in- the two kinds of government. In England the correct on its face; so that nothing more than con- Executive has the most extensive powers; the jecture can be derived from this "exact" state- sword or the military force; the right of making ment. The President is usually more correct, war, and in effect the command of all the wealth and how this peremptory language in the Message of the nation, with an unqualified veto to every comports with the document, every man can see legislative act. It is, therefore, rational for that for himself. I am not disposed to attribute inten- nation to preserve their judiciary completely intional error to any man, much less to the Ex-dependent of their Sovereign. In the United ecutive; but in point of use the statement amounts to nothing; we may just as well imagine without it as with it, how many suits were pending at the institution of the new courts.

But I acknowledge that the number of suits pending is not in my mind any criterion upon which a correct judgment may be formed of the utility or necessity of courts; or, to say the most of it, it forms but one ground of judging, and that not a very conclusive one. In a country thinly settled it is frequently as important to establish courts as in a more populous country; and as this Government is situated, it may be more so; and yet the number of suits will bear no proportion. Why did we establish courts in our territorial government but on this principle?

States, the caution must be applied to the existing danger; the Judiciary are to be a check on the Executive, but most emphatically to the Legisla ture of the Union, and those of the several States. What security is there to an individual, if the Legislature of the Union or any particular State, should pass a law, making any of his transactions criminal which took place anterior to the date of the law? None in the world but by an appeal to the Judiciary of the United States, where he will obtain a decision that the law itself is unconstitutional and void, or by a resort to revolutionary principles, and exciting a civil war, With a view to those principles, and knowing that the framers of our Constitution were fully possessed of them, let us examine the instrument itself. Article third,

JANUARY, 1802.

Judiciary System.

SENATE.

section first: "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." Are there words in the English language more explicit? Is there any condition annexed to the judge's tenure of office, other than good behaviour? Of whom shall your judges be independent? We are led to an erroneous decision on this, as well as many other governmental subjects, by constantly recurring to Great Britain. That their courts should be independent of their Sovereign is an important object; he is the fountain of honor and power, and can do no wrong; our President, at least for several years past, has been considered as the fountain of dishonor and weakness, and if there was any maxim upon the subject, it was that he could do no right. Of course the great object of the independence of the Judiciary must here have reference not only to our Executive, but our Legislature. The Legislature with us is the fountain of power. No person will say that the judges of the Supreme Court can be removed, unless by impeachment and conviction of misbehaviour; but the judges of the inferior courts, as soon as ordained and established, are placed upon precisely the same grounds of independence with the judges of the Supreme Court. Congress may take their own time to ordain and establish, but the instant that is done, all the rights of independence attach to them. If this reasoning is correct, can you repeal a law establishing an inferior court, under the Constitution? Will it be said, that although you cannot remove the judge from office, yet you can remove his office from him? Is murder prohibited, and may you shut a man up, and deprive him of sustenance, till he dies, and this not be denominated murder? The danger in our Government is, and always will be, that the Legislative body will become restive, and perhaps unintentionally break down the barriers of our Constitution. It is incidental to man, and a part of our imperfections, to believe that power may be safely lodged in our hands. We have the wealth of the nation at command, and are invested with almost irresistible strength; the judiciary has neither force nor wealth to protect itself. That we can, with propriety, modify our judiciary system, so that we always eave the judges independent, is a correct and rea- I most earnestly entreat gentlemen to pause and sonable position; but if we can, by repealing a consider. I apprehend the repeal of this act will law, remove them, they are in the worst state of be the hand-writing on the wall, stamping Mene dependence. Tekel upon all we hold dear and valuable in our I have exhausted myself, and I fear, the patience Constitution. Let not the imputation of instabiliof the Senate, and regret exceedingly that my in-ty, which is cast upon all popular bodies, be veridisposition prevented me from a better preparation upon this important question. I have attempted to show, that the establishment of a judiciary system for this country is, and must be, attended with difficulties; and that the Legislature have taken such measures as to a majority of them appeared most reasonable, after much attention to the sub

ject, to cure the evils of the old system, by the substitution of a new system.

And let it be remarked, that the law now under consideration, although it modified our courts, is strictly guarded against a violation of the principles I have here contended for. The Supreme Court is to consist of but five judges after the next vacancy shall happen; and the district judges of Tennessee and Kentucky are associated with a circuit judge, to perform the duties of circuit judges, which duties it is well known they performed ever since the district courts were established; and in the clause which increases their salaries, they are styled the district judges; and all the alteration made in their circumstances, is, an increase of duty, and of salary. I have attempted to show the primary necessity of rendering the Judiciary of this confederated Government completely independent, not only of the Executive, but especially so of the Legislature.

And by adverting to the words of the instrument itself, I have attempted to show, that the Judiciary are secured, so far as words can do it, as well from a circuitous removal, by repealing the law constituting the court of which they are judges, as by any direct removal.

I am strongly impressed with the magnitude of this subject; perhaps the whims of a sick man's fancy have too much possessed me, to view it correctly; but, sir, I apprehend the repeal of this law will involve in it the total destruction of our Constitution. It is supported by three independent pillars; the Legislative, Executive and Judiciary; and if any rude hand should pluck either of them away, the beautiful fabric must tumble into ruins. The Judiciary is the centre pillar, and a support to each by checking both; on the one side is the sword, and on the other is the wealth of the nation; and it has no inherent capacity to defend itself.

These very circumstances united, may provoke an attack, and which ever power prevails so far as to vest in itself, directly or indirectly, the power of the Judiciary, by rendering it dependent, it is the precise definition of tyranny, and must produce its effects. The Goths and Vandals destroyed not only the Government of Rome, but the city itself; they were savages, and felt the loss of neither; but if it be possible there can be an intention, like the son of Manoah, with his strength, without his godliness, to tumble this fabric to the earth, let it be remembered it will crush in one undistinguished ruin, its perpetrators, with those whom they may call their political enemies.

fied by us-in adopting laws to-day, and repealing them to-morrow, for no reason, but that we have the power, and will exercise it.

This Constitution is an invaluable inheritance; if we make inroads upon it and destroy it, no matter with what intentions, it cannot be replaced; we shall never have another.

WEDNESDAY, January 13. THE JUDICIARY SYSTEM. The Senate resumed the consideration of the motion made on the 6th inst. 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.

JANUARY, 1802.

points, elucidate its meaning. When, therefore, the Constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it as of Constitutional creation? And on the other hand, from the language applied to inferior courts, are we not equally justified in considering their establishment as dependent upon the Legislature, who may, from time to time, ordain them, as the public good requires? Mr. MASON, of Virginia.-I feel some degree of Can any other meaning be applied to the words embarrassment in offering my sentiments on a sub-"from time to time?" And nothing can be more ject so fully and so ably discussed. I believe that important on this subject than that the Legislathe ground taken by my friend from Kentucky ture should have power, from time to time, to has not been shaken by any arguments urged in create, to annul, or to modify the courts, as the opposition to the resolution on the table. Yet as public good may require, not merely to-day, but some observations have been made, calculated to forever; and whenever a change of circumstances excite sensibility, not here, but abroad; as they may suggest the propriety of a different organizaappear to have been made with a view to that tion. On this point, there is great force in the reend; and as an alarm has been attempted to be mark of the gentleman from Georgia, that among excited on Constitutional ground, I think the ob- the enumerated powers given to Congress, while servations ought not to go unnoticed. there is no mention made of the Supreme Court. the power of establishing inferior courts is expressly given. Why this difference, but that the Supreme Court was considered by the framers of the Constitution, as established by the Constitution, while they considered the inferior courts as dependent upon the will of the Legislature.

I agree with gentlemen, that it is important, in a well regulated Government, that the judicial department should be independent. But I have never been among those who have carried this idea to the extent which seems at this day to be fashionable. Though of opinion that each department ought to discharge its proper duties free from the fear of the others, yet I have never believed that they ought to be independent of the nation itself. Much less have I believed it proper, or that our Constitution authorizes our courts of justice to control the other departments of the Gov

ernment.

All the departments of a popular Government must depend, in some degree, on popular opinion. None can exist without the affections of the people, and if either be placed in such a situation as to be independent of the nation, it will soon lose that affection which is essential to its durable existence.

We find the phrase, "from time to time," in another part of the Constitution. The 3d section of the 2d article says, the President shall, from time to time, give to the Congress information of the state of the Union. That is, he shall occasionally. as he sees fit, give such information. So shall Congress occasionally, as they see fit, establish annual or regulate inferior courts, accordingly as the public welfare requires.

The arguments of gentlemen go upon a mistaken principle. They express the liveliest sympathy and commiseration for this poor, this weak department of our Government. They tell us the judges have a vested right to their offices-a right Without, however, going into an inquiry of not now derived from the law, but from the Conwhat kind of organization is most fit for our tri-stitution; and they assimilate their case to that of bunals; without inquiring into the fitness of making the judges independent for life, I am willing to enter into a consideration, not of what ought to be, but of what is. Whatever opinion I may individually entertain of the provisions of the Constitution relative to the Judiciary, sitting here under that Constitution, I am bound to observe it as the charter under which we are assembled.

When I view the provisions of the Constitution on this subject, I observe a clear distinction between the Supreme Court and other courts. I am sensible that when we come to make verbal criticisms, any gentleman of a sportive imagination may amuse our fancies by a play upon words. But this is not the way to get rid of a genuine construction of the Constitution. With regard to the institution of the Supreme Court, the words are imperative; while, with regard to inferior tribunals, they are discretionary. The first shall, the last may be established. And surely we are to infer from the wise sages that formed that Constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even

a public debt; to the right of a corporation; a turnpike company, or a toll-bridge. But is not all this reasoning predicated on the principle that the courts are established, not for the public benefit, but for the emolument of the judges; not to administer justice, but for their personal aggrandizement? I believe that a Government ought to proceed upon different principles. It ought to establish only those institutions which the good of the community requires; when that good ceases to need them, they ought to be put down, and, of consequence, the judges should hold their appointments so long, and no longer, than the public welfare requires.

If the arguments now urged be correct, that a court once established cannot be vacated, we are led into the greatest absurdities. Congress might deem it expedient to establish a court for particular purposes, limited as to its objects or duration. For instance: the United States has taken possession of the Mississippi Territory, rightfully or not, I will not pretend to say. This territory has been heretofore in the hands of various masters, viz:

JANUARY, 1802.

Judiciary System.

SENATE.

fice of a judge is destroyed, and yet the officer holds his appointment for life; this case may be considered as inapplicable to the United States. It may be said that we have no right to cede a State, or a part of a State. But I believe a different sentiment has been entertained, and perhaps in this House.

France, England, Spain, and Georgia; and it is now possessed by the United States. All these Governments, except the United States, made certain grants of lands in the territory, and certain setters spread their conflicting patents over the country. These different titles will open a wide Seld for litigation, which will require able tribunals to decide upon. Suppose, then, Congress But suppose this event to occur in relation to should establish special tribunals to continue for territory not attached to a State. Suppose the three, four, or five years, to settle these claims. Government should find it necessary to establish Jadges would be appointed. They would be the an inferior court in an island of Lake Superior. jadges of an inferior court. If the construction Suppose it should be the fortune of war to place of the Constitution now contended for be estab- in the possession of the enemy, one of the States, shed, what would the judges say, when the and the question shall be, will you give up this period for which they were appointed expired? territory in the frozen regions of the Lakes; or Would they not say, we belong to inferior courts? suffer the State to remain in the possession of the Would they not laugh at you when you told them enemy, you being unable to take it from him? If heir term of office was out? Would they not you give up the territory, your court is annihilatsay, in the language of the gentleman from New ed, yet the judges claim a tenure in their offices York, though the law that creates us is tempora- for life; and this in a country that no longer bery, we are in by the Constitution? Have we not longs to you: does not such a result strike every heard this doctrine supported in the memorable mind as absurd? Is it not apparent, that whatever ase of the mandamus, lately before the Supreme claim such men might have upon the generosity Court? Was it not there said that, though the of the Government, they can have no claim to aw had a right to establish the office of a justice offices that do not exist? Nay, further, it might, f the peace, yet it had not a right to abridge its upon the construction now contended for, be induration to five years; that it was right in mak-sisted that the Constitution forbids you to make ng the justices, but unconstitutional in limiting a peace upon those terms; that by ceding an inter periods of office; that, being a judicial offi- considerable territory which you did not want. to ter, he had a right to hold his office during life- secure a whole State, you would abolish the office what is the same thing-during good beha- of a judge, which the Legislature had there erectrlour, in despite of the law which created him, and ed; that this would be an express violation of in the very act of creation limiting his official life your Constitution; and therefore you must leave to five years. a whole State in the possession of the enemy, unless this judge would give you leave to make terms by resigning his office!

I may notice another case, more likely to hapen to show the absurdity of this construction. Congress have assumed jurisdiction over the Mississipppi Territory, and have established a court, composed of three judges, which court is as much an inferior court as the circuit or district courts. Of this jurisdiction Georgia denies the validity. The contest is in a train of settlement. Suppose I shall turn out that the United States are convinced of the injustice of their claim, relinquish and restore the territory to Georgia, what becomes of the judges? Their offices, their duties, are gone! Yet they will tell you, we are vested with certain Constitutional rights, of which you cannot deprive us. It is true the territory is no nger yours. You have no jurisdiction, and we Lave no power, yet we are judges by the Constitation. We hold our offices during good behaour, and we will behave well as long as you will tus. Is not this a strange situation? You have siges in a territory over which you have no jusdiction; and you have officers which are perfect sinecures, pensioners for life. Such an absurdity I am sure the Constitution never meant to stify. It is an absurdity equally repugnant to the letter and the genius of the Constitution.

Suppose another case. Suppose, what I trust will never happen, a war should take place. Suppse that a part of the United States should be conquered, and that we should be compelled to ede it to a foreign nation. In this district your arisdiction is gone; your power is gone; the of

I believe, sir, that we should not differ much, if we came to a proper understanding of the true principle on which this question depends. If we establish the principle that from the nature and essence of the public institutions, they are made for the good of the people, and not for that of the individual who administers them, we shall experience no difficulty. Gentlemen, in speaking of a judge, had emphatically called it his office. But it is not his office, but the office of the people. He is only the person appointed to perform certain services required by the public good, and when those services are no longer necessary for that public good, his duties are at an end, his service may be dispensed with, and he ought to retire to prívate life.

The case had been assimilated to a bridge. But he who builds a bridge does a public good, that entitles him to a growing remuneration forever. But here the good is temporary. The truth is, the judge is more like the man who collects the toll, and who receives the promise of an annual payment as long as he discharges his duties faithfully. But a flood comes, and sweeps away the bridge. Will the toll-gatherer, like the judge, contend, that though the bridge is gone, and the owner ruined, that he shall, notwithstanding, receive his compensation for life, though he cannot continue those services for which his annual stipend was to be the compensation and reward?