its passage; but the Judiciary decide at last, and their decision is final. This doctrine is admitted in the debates of the Convention of Virginia-in the case of Vanhorne, lessee, vs. Dorrance. Judge Patterson has expressed the same opinion, when he could have had no view to this question:

"I hold it to be a position equally clear and sound, that in such a case, it will be the duty of the court to adhere to the Constitution and to declare the act null and void. It is an important principle, which, in the discussion of questions of this kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but co-ordinate branch of the Govern

ment."

The Chief Magistrate of Pennsylvania has recently expressed the same sentiment, and the correctness of his legal opinions will not be called in question by any party; in assigning his reasons for not approving a law, he says:

"And I cannot, from a confidence in the legal knowledge, integrity, and fortitude of my former brethren in the Supreme Court, risk my character in a Judicial decision on this question, when I do not foresee any advantage to be derived to my country, from a possibility of success."

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their permanency, will be likely to be cool, and not convict unless they are guilty. Thus the parts are interwoven, operating as checks and controls on each other; but once cut the ligament, and perhaps the dreadful consequences have not been too highly colored. The effect may not be immediate, but let the principle be practised upon by two or three changes of administration, and it will become as much a matter of course to remove the judges as the heads of departments, and in bad times the judges would be no better than a sword in the hands of a party, to put out of the way great and obnoxious characters for pretended

treasons.

The independence of the judges was a great point gained by the people of England. While the tenure of office depended on the nod of the Crown, they supported the arbitrary measures of the King; in one instance they decided that the King had a right to levy ship-money, without the consent of Parliament or people; and many an instance might be brought to the recollection of this honorable Committee, where they determined through fear, and not from judgment. It is said they are not independent of Parliament. Why, But, sir, if it is once established that the Judi- sir, nothing is independent of Parliament; and ciary is a subordinate and dependent branch of there is not the same necessity there. There bethe Government, I acknowledge that they have ing no written constitution in England, the Judino right to judge of the constitutionality of a law, ciary forms no check upon Parliament; and, beor, if they have the power, they will be afraid to sides, our Government is not a copy of the Britexercise it. Upon this principle, where will an ish Government; and this is not the only solitary influential partisan and an insignificant individual instance where we have outstripped, as it is called, meet to adjust their claims? In this House, or our too favorite prototype. There is not a leadin a tribunal under the influence of this House? ing feature in the Constitution that bears testimoWhere will the powerful State of Virginia and ny of any servile imitation; it is our opponents the State of Delaware meet upon terms of equali- who wish to test our Constitution by the princity; in this House, or in a tribunal under the im- ples of the British Government; it is they who mediate control of this House? Where could the wish that a construction be put upon the ConstiFederal administration of justice in this country tution by Congress, which shall be considered as be deposited with more safety than where it is? the Constitution itself; and are unwilling that Intrenched as our judges are, they can do but lit- there should be any check to oppose it; and of tle harm, but much good; from their situation course, every construction put on it by the differthey can have no temptation to make inroads upon ent Legislatures, will exhibit the appearance of a the rights of the people; there is no such thing new Constitution, a constitution to be tossed and as Judicial patronage; they can appoint no offi- blown about by every political breeze. The powcers, collect no moneys, raise no armies, raise no ers of Congress will be equal to the powers of the fleets. They have nothing but their virtue and English Parliament, transcendant, splendid, and talents to recommend them to the people. If it without control. I little expected that such lordis within the power of human contrivance to se-ly power would be grasped at by our plain Relect a spot where the streams of justice will flow pure and uncontaminated, it is in a tribunal of independent judges.

publicans, who have no ambitious desires, and who wish rulers to be contented with humble prerogatives.

The three grand branches of our Government Mr. Chairman, when I reflect upon the intrinare well arranged. The President has his pro- sic nature of the question, I am confounded and portionate weight in the Judiciary, by appointing amazed; it is vast indeed-from a dread of its the judges; when they are appointed they are in- terrible consequences. Yet, in its nature, it condependent, and in this situation are to guard the sists in the open denial of the obvious meaning of Legislature from making encroachments on the a few words in the Constitution; we repeat these liberties of the people. The Legislature, in turn, words, gentlemen deny their plain sense. We have a check on them by bringing them to trial read "That the judges, both of the supreme and and punishment, if they should become corrupt-inferior courts, shall hold their offices during ed; this trial is to commence in this House, which will always be a repository of a sufficiency of passion and spirit to commence the impeachment, if there is a reasonable cause; the trial is to be ended in the Senate, where the members, from

good behaviour." Our opponents say that these words do not mean "that the judges both of the supreme and inferior courts shall hold their offices during good behaviour." The meaning of these words is entirely different; it is, in fact, the

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and bring in a bill or bills " for opening a navigable canal to connect the waters of Potomac river with those of the Eastern Branch thereof, through Tiber Creek, and the low lands at the foot of the Capitol Hill," in the room of Mr. SPRIGG, who resigned his seat in the House on the eleventh instant.

On motion, it was

reverse; they do not infringe our power; they refer to the Executive; although the office to be holden is not of Executive creation, and he can neither make it nor destroy it: the thing to be holden during good behaviour, is an object of Legislative creation. Certainly our opponents cannot drive us out of the firm ground on which we stand, and tell us that these words are not in the Constitution. They are, and how are they to be got rid of? No other way, under Heaven, Mr. Chairman, than by a bold and arbitrary assertion that they do not bear their natural meaning; that they do not bear the same meaning which they bear in another part of the Constitution. The people have said that a judge shall hold his office until a certain event shall happen; the rulers say no, we will shorten the period, and this is not breaking the Constitution; or, in other words, the people have said that a judge shall hold his office during good behaviour; the rulers say, the meaning of that is, that the office can be taken away at any moment. Why, sir, what part of the Con- Another Message was received from the Presistitution will hold gentlemen? what words are in dent of the United States, transmitting a stateit that are strong enough, and what meaning can- ment of the expenses incurred by the United States not be as easily distorted and perverted? We have in their transactions with the Barbary Powers, a right to our seats here for two years, if we do and a roll of the persons having office or employnot behave disorderly; yet it might as well be ment under the United States. The Message said that the meaning of that is, that two-thirds was read, and, together with the documents accan expel the other third at any moment, not-companying the same, ordered to lie on the table. withstanding their good behaviour. Our opponents complain of the want of power; that their power would be too much cramped and restrained from its natural freedom by our construction. Why, sir, that is the object of a written Constitution, to place objects out of the reach of Legislative power. It is its great and grand design.

Ordered, That Mr. BRENT be excused from serving on the committee appointed, on the eighth of December last," to inquire whether any, and, if any, what, alterations or amendments may be necessary in the existing government and laws of the District of Columbia, and to report by bill, or otherwise;" and that Mr. CAMPBELL be appointed of the said committee in his stead.

I ask pardon of the Committee for detaining them so long. I ascribe no wicked motives to our opponents. I have the charity to believe that their motives are good and virtuous; yet I am confident, that through a mistaken zeal for the good of the people, they are going too far, and are destroying the Constitution of our country. The further consideratiou of the said bill was postponed till to-morrow.

WEDNESDAY, February 17.

A representation of sundry counsellors at law, practising in the Courts of the State of New Jersey, and in the Circuit Court of the United States for the District of New Jersey, was presented to the House and read, praying that the act of Congress, passed on the thirteenth of February, one thousand eight hundred and one, entitled "An act to provide for the more convenient organization of the Courts of the United States," may not be repealed, for the reasons specified in the said representation.-Referred to the Committee of the whole House to whom was committed, on the fourth instant, the bill sent from the Senate, entitled "An act to repeal certain acts respecting the organization of the Courts of the United States, and for other purposes."

Ordered, That Mr. DENNIS be added to the committee appointed, on the ninth instant, to prepare 7th CoN.-18

A Message was received from the President of the United States, transmitting the report of the Director of the Mint. The said Message, and the report referred to therein, were read, and ordered to lie on the table.

JUDICIARY SYSTEM.

The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act to repeal certain acts respecting the organization of the Courts of the United States, and for other purposes."

Mr. THOMPSON.-I find the opinions I entertain, so extremely adverse to the sentiments yesterday expressed on this subject by the honorable gentleman from North Carolina, (Mr. HENDERSON,) who opened this debate, and the honorable gentleman from Pennsylvania, (Mr. HEMPHILL,) whose great ingenuity I feel pleasure in acknowledging, that I feel myself impelled to offer to the consideration of the Committee a few observations in reply to the arguments used by those gentlemen. But. Mr. Chairman, while I pay the tribute of my respect to the eloquence and ability which the gentleman from North Carolina has displayed in the discussion of this subject, I must pray that honorable gentleman to pardon me when I declare myself unable to follow him, when, soaring on fancy's airy pinion, he transported us across the Atlantic, and presented to our view, in the most vivid colors which language can portray, the spirit of innovation, sweeping morality and good order from the earth. Nor will I pretend, sir, that my humble genius will enable me to pursue him, when he forced this same spirit of innovation to mount the whirlwind and lash on the storm. But, sir, with such talents as I am endowed with, I have no objection to going into the consideration of the question before the Committee, and pursuing the order which the gentleman has had the goodness to suggest, as the most natural into which the subject can be divided—that

is, 1st. The power of the Legislature to pass, and 2dly, The expediency, under the existing state of things, of passing the bill now upon your table. Under these two heads, I will endeavor to meet, as far as I shall be able to recollect them, the most impressive arguments which have been used by the gentlemen; and I will beg leave in the first place to call the attention of the Committee to the eighth section of the first article of the Constitution, which has been very slightly touched on by the gentleman from North Carolina, and which has been attended to, with much ingenuity, by the gentleman from Pennsylvania. By this section the Legislative powers of Congress are defined. "Congress shall have power," says the Constitution, to levy taxes, to borrow money, to coin money," and, among a variety of other powers, "to constitute tribunals inferior to the Supreme Court." It is an axiom in politics that an ordaining power always embraces a repealing power; if Congress have a right to constitute courts, they have the right to modify and to annul the courts so constituted; this, like various others, is merely a discretionary power, to be exercised, or not exercised, as Congress shall find conducive to the public welfare; the granting a power does not oblige the exercise of that power; neither does the exercise of power make the laws resulting from that Constitutional exercise of power unchangeable and irrepealable. The same Constitution, giving this power, gives various other powers, as I have already shown; yet it has never been contended that the laws passed under these conceded powers are irrepealable. Still, by a parity of reason, and with a ref erence to this particular section of the Constitution, if the laws relating to the Judiciary establishment of the United States are irrepealable, so must the various laws passed under these granted powers, relating to your revenue, to your army, to your navy, to your mint, be irrepealable. But every gentleman knows that laws resulting from these powers have been passed, have been modified, and have been repealed; and so likewise has the law establishing the Judiciary system. Without carrying you through the tedious detail of the twenty-six or twenty-seven laws which have been passed upon this subject, it will be quite sufficient for my purpose to notice the law of the last session of Congress, the 27th section of which begins with these words:

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ble-that they are more just, more wise, more competent to the exercise of their functions, than any Legislature which shall follow them. It is a contradiction of the progress of knowledge, and of the improvements which may result from experience; it is a denial of the utility of frequent elections; because that Legislature which had attained the acme of perfection ought to be permanent and unchangeable. The law, however, of the last session, which I have just now cited, having modified the courts of the United States, concedes the power of modification to be in the Legislature. But, sir, even this concession, such as it is, is now, by the arguments of gentlemen, so clogged with appendages, so qualified by expositions, that whilst with one breath the power of modification is admitted, with the very next that power is unnerved, is rendered useless; for, says the gentleman from North Carolina, a department of the Government has been erected, called the Judiciary, not holding their office during pleasure, but during good behaviour, and whatever power attempts to deprive them of their offices violates the Constitution. It is admitted, then, that Congress have power to modify the law; but it is denied that they have power to abolish the offices of the judges.

Let us then inquire, Mr. Chairman, by what tenure the judges hold their offices: "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour."Constitution, article 3, section 1. The gentleman from North Carolina inquires, If they have been guilty of any misdemeanor? How, then, are we to break down this Constitutional rampart with which they are entrenched? How to use the gentleman's own expression, are the judges to be hurled from their offices? There is no gentleman, Mr. Chairman, within these walls, who would more sincerely wish the Judiciary to possess a due and proper independence than myself; but although I do not admit the right of the Legislature to hurl these judges from their offices, yet I must contend and shall ever contend for the right which Congress possesses to abolish an office; or, in other words, to repeal a law creating an office, whenever it shall be plainly proved to them thai such an office is unnecessary and oppressive. They may hold their offices during good behaviour, if their offices exist; but most certainly the moment the office is legally destroyed-that is, the moment the law establishing the office is repealed, there must be an end of the tenure. Those sages who formed the Constitution, Mr. ChairWe travel not then in a wilderness, Mr. Chair- man, never contemplated a privileged order of man, untrodden by human footsteps; our immedi- men in that society for whose happiness they ate predecessors, it appears to me, are the pioneers formed that instrument. The exposition, which who point out to us the path we should pursue is now given to it, is very different indeed from for the benefit of our constituents. They have that which was intended by them. I have read, not only abolished the circuit courts, but reorgan- and have heard, sir, that this is a Government of ized the whole system; they have constituted new experiment. That in the annals of nations it has courts and new judges, and they have lessened no likeness-no prototype. The effects of this the duties of the judges of the supreme courts. particular department of the Government were To say that a subsequent Legislature have not a not better understood than the effects of the other right to repeal a law of a precedent Legislature departments of the Government; it was to be is to proclaim such precedent Legislature infalli-tested by experience, the touchstone of truth; if

"And be it further enacted, That the circuit court of the United States heretofore established shall cease and be abolished."

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gress not only thought themselves justifiable in touching the judges of the inferior courts, but of the Supreme Court likewise; for you will find that the same law which constituted the Supreme Court, allotted to the judges of that court, particular and express duties or offices-that is, to perform the duties of a judge of the Supreme Court, as is in that law defined, and to perform the duties of judges of the circuit court, as is likewise defined in that law; and in abolishing the circuit courts, half the offices of the judges of the Supreme Court were abolished.

one system in its operation did not answer the expectation of the Legislature, ample room was allowed for the introduction of some other, and for the abolition of the former; hence come the expressions "from time to time ordain and establish." What says the Constitution? "The Judicial power of the United States shall be vested in one Supreme Court, and such inferior courts, as Congress shall from time to time ordain and establish." Congress may, then, or Congress may not from time to time ordain and establish courts. But, if they establish courts, so likewise may they abolish courts. Into what a variety of absurdí- Perhaps, Mr. Chairman, that Congress had as ties shall we be plunged, if we reject this reason- great a right to abolish the whole office as half able interpretation? The right to modify the the office; but whether that was an infraction of law being conceded, but not the right to deprive the Constitution, or whether it would be an infracthe judges of their offices, our country would ex- tion of the Constitution to abolish the office of a hibit a spectacle which it never has yet, and I hope judge of the Supreme Court, I will not detain never will exhibit-officers without offices- you to inquire, because it appears to bear but little judges without courts-a privileged order-out of upon the immediate subject before us, it not being the reach of the Constitution, (for being deprived the intention of the bill, as I understand it, to inof their offices they cannot be impeached,) draw-terfere with the offices of the judges of the Suing money from the Treasury and rendering no preme Court, further than to restore them to that services for their salaries. Is this the meaning of firm, that rightful, that Constitutional ground, on that Constitution which declares, that "The which they stood previously to the passage of the judges during their continuance in office shall re-law of the last session, and to all the duties and ceive a compensation for their services?" A com- immunities of which I most sincerely wish to see pensation ? them restored.

But suppose, Mr. Chairman, they perform no But, Mr. Chairman, the gentleman from Pennservice suppose there be no service for them sylvania has informed us, it is acknowledged that to perform, what, then, is to be their compensa- the law of the last session is Constitutional; in tion? Will the judge say to the Legislature, in- this I can by no means agree with that gentlecrease my duties, make them proportionate to my man. There is one section in that law, sir, which salary, and I will perform them? Not so, Mr. in my humble opinion is a flagrant violation of Chairman; an increase of salary is never objected the Constitution. By the 24th section of that law to; a diminution of duty is never objected to; the district courts of Kentucky and Tennessee but, if duties are increased, salaries must also are abolished. Had our predecessors stopped at be increased. If I understand the word "com- this point, we should have no cause on this day to pensation," it signifies a something given for a charge them with a violation of their charter, they something performed. But, if there be no duty would have done no more in principle than we performed (and if there be no office there can be now contend we have a right to do. But they no duty) then there ought to be no compensation. went further-they usurped a power in my opinIn the English language there is such a word as ion not given them by the Constitution, they "sinecure." This is a word, Mr. Chairman, usurped a power exclusively vested in the Presiwhich as yet we do not practically understand. dent and Senate. By the seventh section of the This is a word abhorrent to the spirit of our Con- same law, the judges of the district courts of Kenstitution. Yet, sir, if the construction of the Con- tucky and Tennessee, are appointed circuit judges stitution, which is now contended for, be admit-in fact, not indeed in name, but in reality the ted, this will be a word which we shall soon prac-duties of circuit judges of the sixth circuit are tically feel, and practically understand. We shall have a set of men receiving the public treasures not in consideration of public services, but without any services whatever being performed; or, in other words, we shall lay the foundation of a sinecure system, the consequences of which will be incalculable, and the effects of which will be indescribably destructive.

assigned them. The district courts of Kentucky and Tennessee are abolished, and I wish to be informed if they are not circuit judges to all intents and purposes, and I wish further to be informed, if they are not circuit judges appointed by the Legislature, and in direct violation of that article of the Constitution, which has. in the most express terms, vested this power in the President and Senate? Sir, did I apprehend the gentleman from Pennsylvania aright, when I understood him to say, the name of a judge does not define or con

But, Mr. Chairman, I will show you a precedent, and a recent one, too, where the Legislature put a different construction upon the Constitution; I will show you a precedent where a Fede-stitute the duty of a judge? ral Congress, our immediate predecessors, did not hesitate to exercise the powers we contend for. By the 27th section of the law of the last session, which I have had occasion before to advert to, the circuit courts are abolished. Then that Con- I

This is indeed a melancholy exemplification. Shall I be told that by the law they are styled district judges? How long, Mr. Chairman, are we to be imposed on by sound, how long are we to be entangled with the cobwebs of sophistry? But

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number of decisions which are made in his court in the course of a year; and when I overlook a document which I have now in my possession from the clerk of that court, and which I shall

can have no difficulty in pronouncing the sincere opinion which I entertain that he performs more duty, and perhaps with greater ability, than the whole judicial corps of the United States. [Mr. T. here read the document.]

And what, Mr. Chairman, is the compensation which this venerable citizen receives? Fifteen hundred dollars-no more; compare this with the sum which supports and decorates the fair composite column which we are informed is one of the strong pillars of our Government; and to touch which we are told will occasion the beautiful fabric to tumble in the dust. Have we not State courts diffused in abundance over every commonwealth composing this Union? Are they not competent to the decision of all cases of controversy between citizen and citizen? Is not the jurisdiction of the Federal court extremely limited from the true and genuine construction of the Constitution? Where then was the necessity of the law of the last session which ramified and increased these courts? But, sir, the gentleman from North Carolina has found another use for them; he has told us, "the people, when they established this Constitution did not delegate the power of legislation to the House of Representa'tives alone. They established the Senate as a check upon the House of Representatives; knowing the violent impulses which often actuate pop

sir, the gentleman from North Carolina has warned us, solemnly warned us, against a violation of the Constitution. Was that gentlemen a member of this House when the law which I have just been speaking of, passed? I perceive by your jour-presently offer to the view of this Committee, I nals that he was- -why then, sir, were not these sensations, which he now experiences with such exquisite sensibility, awakened? Why were they not awakened a year ago, when he might perhaps have prevented an actual violation of the Constitution? I ask the honorable gentleman, sir, when with a sacrilegious hand this vital wound was inflicted on the Constitution, if he raised the plaintive cry of-Spare, oh! spare the Constitution of my country? Yesterday, sir, the gentleman informed us if the bill on your table should pass he would heave no sigh, he would drop no tear over the expiring Constitution. When that law passed, did he heave no sigh, did he drop no tear? Oh, no, sir, very different was the course which was then pursued. With cool, with cruel deliberation, the devoted victim was immolated, and the blood which issued from the gaping wound will forever stain the pages of your statute book. Mr. Chairman, the expediency of the law now under consideration, and the propriety of adopting a measure of this nature, at the present time, have been so fully and so satisfactorily discussed in the Senate, not many days ago, that to this point I shall apply but few observations. Coming from a State where justice is administered with promptness and frugality, I confess that the stupendous fabric of the Federal Judiciary excites my astonishment. I had, sir, supposed, that the document, which has been furnished by the Ex-ular assemblies, they gave the President, too, the ecutive, would be a full and complete answer to power to negative laws. When a law had passed anything that could be said on this division of the 'these various branches of the Government, it be subject; but, sir, the gentleman from Pennsylva- came necessary to erect a third department, called nia has informed us that if the undecided causes the Judiciary, not holding their offices during of the State of Maryland were added, the aggre-pleasure, but during good behaviour.'" Did I gate number of depending causes in the courts of the United States would probably amount to sixteen hundred, and he inquires if it is practicable for the courts, after the repeal of the law of the last session, to determine this number of causes scattered over the United States? Sir, when I cast my eyes across the Potomac, and call to recollection the system of jurisprudence established in my country, I cannot hesitate a moment in giving him an affirmative answer.

I have not, Mr. Chairman, nor was it possible for me to procure, documents from the district courts of my State to show to the Committee the number of suits which are depending in them. But, sir, when I reflect how often I have seen a venerable citizen of that State, respectable for his great learning, respectable for his irreproachable life, and respectable for his years, (being aged I believe, full seventy,) who is judge of the high court of chancery there, devoting his days and his nights to the avocations of his office, in the plain garb of a common citizen, dispensing justice and satisfaction to the multitude of citizens whose causes are tried before his tribunal; when I reflect on the number of citizens whose causes are tried before his tribunal; when I reflect on the

comprehend the argument of gentlemen when I supposed it went to the establishment of this department as a check upon the Legislature, and did

comprehend the argument of the gentleman from Pennsylvania, when he cited Judge Paterson's charge, which I have not seen, but from which, as he read, I noted these words "I hold it to be the duty of the court in such case, to declare the law null and void." If I have not misunderstood the gentleman, I confess my eyes are now opened. I begin to feel some of those apprehensions which have been so strongly talked about, and which heretofore I have not been accustomed to experience. Not, sir, from a fear of usurpation of power on the part of the Legislature, for they are biennially responsible to their constituents for the sacred observance of the charter of their rights; not, sir, from a fear of usurpation of power on the part of the Executive, for the term of his service is limited to four years, and therefore he is liable to lose his office in case of an infraction of the Constitution on his part, but from a desire which, I fear, this check-department of the Government has to grasp at all power. Give the Judiciary this check upon the Legislature, allow them the power to declare your laws null and