But it would seem that the argument urged on this occasion, and the general course of our legislation, had been grounded more on the convenience and emoluments of those appointed to office than on grounds of public utility. First, we appointed six judges of the Supreme Court, divided the United States into three circuits, two judges to ride each circuit, in which, with the district judge, to form a court. The law fixed the duties and the compensation, and gentlemen of the first character were ready to accept the places. The salaries indeed had been thought high; in some parts of the Union they were thought enormous. But a little time passed before they complained of the hardships of their duties; and the law was altered, not so much for the public good as for their personal convenience. Where two judges were required to hold a court, one was now declared sufficient. Thus you continued their full salaries, while you lopped off half their duties. Shortly after you assigned them, under the pension law, inconsiderable duties; and they refused to perform them. Thus, while they showed themselves ready to abate of their duties, they adhered to their salaries. Next came the law of last session, which takes away all their duties. It leaves them simply a court of appeals. And what have they got to do? To try ten suits; for such is the number now on their docket, as appears from a certificate just put into my hands; and the average number on their docket amounts to from eight to ten. Thus, for the trial of the immense number of eight or ten suits, you have six judges, one with a salary of four thousand, and five others with salaries of three thousand five hundred dollars each. I fear, said Mr. M., that if you take away from these judges that which they ought officially to do, they will be induced, from the want of employment, to do that which they ought not to do; they may do harm. They may be induced, perhaps, to set about that work gentlemen seem so fond of. They may, as gentlemen have told us, hold the Constitution in one hand, and the law in the other, and say to the departments of Government, so far shall you go and no farther. This independence of the Judiciary, so much desired, will, I fear sir, if encouraged or tolerated, soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently become so strong as to crush and absorb all the others into their solid mass. We have been told, that no State in the Union has presumed to touch the Judiciary establishment, except the State of Maryland. I will not answer for others; but with respect to Virginia, I will answer that she has touched it. Her Constitutional provision for the independence of the judges is nearly similar to that of the United States, and yet she has established, modified, and entirely put down particular departments of her system. [Here Mr. M. went into a particularization of the different changes the Judiciary system of Virginia had undergone.] JANUARY, 1802. After the particularization, Mr. M. proceeded: And yet our judges, who are extremely tenacious of their rights, did not complain. They thought, as I think, that they should not be removed from their offices that others might be placed in them; and that while they did continue in office their salaries should be preserved to them. And I believe the whole of our Constitutional provision amounts to this; that, unlike other officers appointed by the President, they shall not be removed by him; that their salaries shall not be diminished by the Legislature; and that while the Legislature may continue any particular Judicial establishment under which a judge is appointed, he shall hold that appointment in defiance of both the other departments of Government. A judge may say, I am not to be turned out of office by the President on the one hand, or starved by the Legislature on the other. He may say to the Legislature or the President, and to both of them combined, you shall not turn me out of this office as long as it exists, to gratify your enmity to me, or your favoritism to another person; so long as the interest and convenience of the people require this institution, they are entitled to my services; they shall have them, and I will be paid for them to the utmost farthing, in spite of your displeasure or caprice. Notwithstanding the remarks of gentlemen, I am inclined to think these ideas of the extreme independence of the judges, and the limited powers of the Legislature, are not very old, but that they are of modern origin, and have grown up since the last session of Congress. For in the law passed last session, that very law which it is now proposed to repeal, is to be found a practical exposition in direct hostility with the principle now contended for, which does not betray that sacred regard for the office of a judge, that is, on this occasion, professed: in that very law will be found a clause which abolishes two district courts. The words of the twenty-fourth section say, expressly, "the district courts of Kentucky and Tennessee shall be and hereby are abolished." Will gentlemen tell this House how this express provision came into the act of the last session; and will they say, that though they voted for this law, yet no power exists in the Legislature to abolish a court? It is true, that it has been said, that though you put down two district courts, you promoted the officers, by increasing their salaries and making them judges of the circuit courts; but the fact is, you have abolished their offices; they are judges no longer of the districts of Kentucky and Tennessee; and they are to every purpose, whatever may be their name, in reality circuit judges. Though you have not lessened their salaries, you have deprived them of their offices. However, therefore, gentlemen may calculate as to the benefit or injury done these two judges, the principle is not affected by any result; their offices are gone. It is not enough to say, that though you destroyed their offices, you offered them others with higher salaries. You took away from them, in express terms, their offices, by abolishing the offices. You had stripped them of their offices, you had robbed them of their vested right, and then, to make friends, offered them a compensation; but whether the compensation thus offered for the deprivation they had suffered, was really equivalent to their loss is a mere matter of calculation, and does not affect the Constitutional principle. It is proper, however, to observe, that they were no parties to the proposed compromise, and that indeed they had no choice left them. They were obliged to accept of what you offered them, or have nothing. If they did not agree to become judges of the newly organized circuit courts, they could not remain judges of the district courts, for these courts were absolutely and completely abolished. Were I, Mr. President, to make a calculation on the comparative increase of duties and addiConal salary, in the case of one of those gentlenen, (Judge Innes, of Kentucky,) I should have no hesitation to say, that the bargain which has been made without his consent, and without his being party to it, is a very bad one for him. Knowng, too, his particular situation, I am persuaded hat if the law had left him any election between as former and new situation, he would have pretred remaining where he was, and, without a roment's hesitation, he would have rejected your preffered promotion, as it is called. This gentlean resides within a very few miles of Frankfort, where, as District Judge of Kentucky, he held is court. Attached to domestic life, and enjoygall its felicities, engaged in, and pleased with, gricultural pursuits, he was never under the neessity, even during the sessions of the courts, to Jeep out of his own bed one night, or to be sepated single day from his family. He could every morning give directions for the management of his farm, and return early enough in the rening to see whether his orders were executed. How is he situated under the change which has een forced upon him? Instead of attending one Court, almost at his door, your late law obliges him attend four; the nearest, at Bairdstown, fifty or aty miles from home. You oblige him to travel through dreary and inhospitable regions to the Northwestern Territory, something short of an andred miles; and much greater distances to and through still worse countries, Knoxville and Nashville, in Tennessee. In going from one to he other of those last mentioned places, he will Ave to pass through the country of the Cherokee hans, nearly one hundred miles over the Cumrland mountains, where he will be exposed to ery inclemency of the weather, without a shelto retire to, for there is not a house or a hut in whole journey; a journey in which all travers are obliged, at all times, and of unavoidable essity, to sleep one night, at least, and from the of rains, and rise of water-courses, often many ghts, without a roof to cover them from the ang of the storm; and, moreover, where they eliable at every step to be robbed by the Inans, as I myself experienced passing through hat wilderness. Can it be supposed, that the five cadred dollars added to the salary of Judge In5, should, by a person situated as he was, be emed a sufficient compensation for the addi7th CON.-3 SENATE. tional duties, the toils, the dangers, and the deprivations to which that law subjected him? In continuing to serve his country, I am sure he must have been influenced more by a sense of duty than a regard to private interest, or a belief that the change was, in any respect, advantageous to him. By the seventh section of the law of the last session, which transforms the district into circuit courts, which melts down the judges and recoins them, it is enacted, that there shall be a circuit court, composed of one new circuit judge and two old district judges, to be called the Sixth Circuit. Have you not then established a new office by the destruction of the old one? Have you not done more? Have you not violated the Constitution, by declaring, by law, who shall fill this new office, though the Constitution declares, article second, section two, "That the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint all officers which shall be established by law." Where were these guardians of the Constitution-these vigilant sentinels of our rights and liberties, when this law passed? Were they asleep on their post? Where was the gentleman from New York, who has, on this debate, made such a noble stand in favor of a violated Constitution? Where was the Ajax Telamon of his party, or, to use his own more correct expression, the faction to which he belonged? Where was the hero with his seven-fold shield-not of bull's hide. but of brass-prepared to prevent or to punish this Trojan rape, which he now sees meditated upon the Constitution of his country by a wicked faction? Where was Hercules, that he did not crush this den of robbers that broke into the sanctuary of the Constitution? Was he forgetful of his duty? Were his nerves unstrung? Or was he the very leader of the band that broke down these Constitutional ramparts? I shall now, sir, trouble you with a few remarks on the expediency of repealing this law. It has been said, that there is nothing peculiarly disgustful in this law; that there has been no public clamor excited against it; that it was enacted with solemnity, on calm and deliberate reflection; and that time has not yet been given to test it by experience. As no member, who has taken part in debate, was a member of this body when the law passed, I will say something of its history. I am not disposed to excite the sensibility of gentlemen, by any remarks which I shall make, or to call up unpleasant recollections of past scenes. But when I hear it said that this law was passed with calmness, after mature reflection, and that we are now, in a fit of passion, going to undo what was thus wisely done, I think it necessary that the public should have a correct statement. It is true, that under the last Administration when there existed (what I trust will never, in an equal degree, exist again,) an immoderate thirst for Executive patronage, a proposition was made to establish a new judiciary system; a system worse than the present; as it proposed, according to my recollection, thirty-eight judges instead of SENATE. Judiciary System. JANUARY, 1802. power was passing from them, to pass such a law as this. If there is error, it is our duty to correct it; and the truth was, no law was ever more execrated by the public. Let it not be said, postpone the repeal till the next session. No-let us restore those gentlemen to private life, who have accepted appointments under this law. This will be doing them greater justice, than by keeping them in office another year, till the professional business, which once attached to them, is gone into other channels. [Mr. MASON went into an examination of the was passed, and particularly the number brought within the twelve months preceding its passage; from the fewness of which, and their being in a state of diminution rather than increase, he in sixteen. This law was very near passing. It was, however, rejected in the House of Representatives by a very small majority. But it was circulated as a project of a law among the people. It was illy received. It was thought too rank a thing, and met with general disapprobation throughout the United States, so far as I have been able to learn. After this reception, it was softened down to the plan introduced at the last session. What temper accompanied the progress of the bill in the other House I know not, or, if I did know, would it be proper for me here to say? But with respect to the acts of this body, I am not of opin-number of suits depending at the time the law ion they added any diginity to our common course of procedure. The bill was referred to a committee, who, though it was very long, reported it without any amendment. Various amendments were offered, some of which were admit-ferred the inutility of the additional judges.] ted to be proper. But they were not received. One, indeed, proposed by a member from Connecticut, who was chairman of the committee, and was then hostile to the plan, did pass, in the early stages of the bill, but on the third reading it was expunged. All amendments proposed by the minority were uniformly rejected, by a steady, inflexible, and undeviating majority. I confess that I saw no passion, but I certainly did see great pertinacity; something like what the gentleman from Connecticut had termed a holding fast. No amendments were admitted; when offered, we were told, no; you may get them introduced by a rider or supplementary bill, or in any way you please; but down this bill must go; it must be crammed down your throats. This was not the precise phrase, but such was the amount of what was said. I will say that not an argument was urged in favor of the bill, not a word to show the necessity or propriety of the change. Yet we are told that there was great dignity, great solemnity in its progress and passage! He continued: If, on this review, we find the number of suits decreasing instead of increasing; if the courts then established were found competent to the prompt and faithful discharge of all the duties devolved upon them, the law was unnecessary; and, if unnecessary, the additional expense incurred by it was unnecessary; and all unnecessary expense should be saved. It is true that fifty thousand dollars divided among the people of the United States amounted to but on cent a man; but the principle was still the same It has been very fashionable of late to justify every unnecessary expense by stating each item by itseli and dividing it among the whole people. In thi way every expense is held forth as of little con sequence! Gentlemen say, in this case, it is onl one cent a man! In the case of the Mausoleum two hundred thousand dollars came to only fou cents a man! In the direct tax, it is only fort cents! They talk of our army, it only comes t a few cents for each person, who may sell as man cabbages to the soldiers themselves as to pay it So in a navy. In this way are the most extrav gant expenses whittled down to a mere fractio But this kind of Federal arithmetic I can nev accede to. It may suit an expensive Governmen but it is an imposition upon the people. small number of suits is an evidence of the ef cacy and ability of our courts of justice. I a willing to admit the force of this remark; but must apply it very differently from those gentl men. I must apply it to the state of the docke when this law passed; and from there being ve few at the time, I must infer that the system e isting then was an excellent one, as it wielded t power of the laws so effectually, that there w but little necessity for enforcing the law again delinquents. But there is something undignified in thus hastily repealing this law! in thus yielding ourselves to the fluctuations of public opinion! So we are told!-But if there be blame, on whom does it fall? Not on us, who respected the public opin- It has been urged with some force, by the ge ion when this law was passed, and who still re-tlemen from New York and Connecticut, that th spect it; but on those who, in defiance of public opinion, passed this law, after that public opinion had been decisively expressed. The revolution in public opinion had taken place before the introduction of this project; the people of the United States had determined to commit their affairs to new agents; already had the confidence of the people been transferred from their then rulers into other hands. After this exposition of the national will, and this new deposit of the national confidence, the gentlemen should have left untouched this important and delicate subject-a subject on which the people could not be reconciled to their views, even in the flood-tide of their power and influence; they should have forborne, till agents, better acquainted with the national will, because more recently constituted its organs, had come into the Government. This would have been more dignified than to seize the critical moment when From the remarks made by the gentleman fro Connecticut, it might be inferred that we w about to destroy all our courts, and that we w in future to have no courts. Is this the case? we contending for breaking down the whole jud ary establishment? On the contrary, we bar say, the courts you had before the passage of t law were sufficient; return, therefore to the This law, which we wish repealed, imparts no new authorities to your judges; it clothes them with no additional terrors; it adds not to their axes, nor increases the number of their rods. It only enlarges their number, which was before large enough. The gentleman from New York has amused himself with a great deal of handsome rhetoric; but I apprehend without bearing much upon the question. There is one idea, however, which he has seized with extacy, the idea of a great State kneeling at the altar of Federal power; and he deplores that this spectacle, the most sublime that his imagination can conceive, is vanished forever. But if he will consult those stores of history with which he so often amuses and instructs his audience, he will find still more splendid humiliations. He will find the proud monarchs of the East, surrounded with all the decorations of royalty, dragged at the chariot wheel of the conqueror. In more modern times he will behold a King of Engand and of France, one holding the stirrup and the other the bridle, while the Pope mounted his horse. If not contented with the contemplation A these illustrious degradations, he may resort to Sacred Writ, to which he so often appeals; and in the very Book of Judges, he will behold a famous Ang of Jerusalem, surrounded by three score and dependent Kings, picking up the crumbs from sader his table, and, what made the humiliation more charming, all these Kings had their thumbs and great toes cut off. SENATE. and, leaving its elucidation to others of greater experience and more talents, have been contented with a silent vote. As, however, the State whose servant I am, and whose faithful servant I wish at all times to be found, has instructed her members on this subject, I will endeavor, in the plain way of which alone I am capable, to assign the reasons for my vote. And, in doing this, I rather wish than hope that I may state anything worthy the consideration of this enlightened assembly. The argument upon this question has naturally divided into two parts, the one of expediencythe other of constitutionality. If the repeal of this law shall be deemed expedient, the Senate will doubtless consider it their duty to repeal it if no Constitutional objection opposes it; but if it shall be deemed unconstitutional to repeal it, then no considerations of expediency can stand in the way of that solemn instrument we are all sworn to support. Before entering into an examination of the expediency of the repeal, it may be proper to remark, that gentlemen who have spoken against the repeal, whose talents and eloquence I highly admire, have not correctly stated the question. The true question is, not whether we shall deprive the people of the United States of all their courts of justice, but whether we shall restore to them their former courts. Shall we, or shall we not, continue an experiment made, or attempted to be made, I will not say improperly, because my respect for this body and for my country, forbid the imputation; but I will say that the length of time we remained without this system, and the repeated ineffectual attempts made to establish it, presents strong reasons for inferring that there are not those great apparent reasons in favor of it that have been stated. A system somewhat similar to the present had been rejected by the Legislature because they preferred the former system. Another evidence to the same purport is, that during the last session, when the subject was again revived, and the present plan adopted, an amendment was offered, to amend by extending and enlarging the former establishment. But if the gentleman from New York wishes to be gratified with a more modern idea of sovereign degradation, I would refer him to the memorable threat of an individual, a servant of the people, to humble a whole State, a great State too, in dust and ashes. A State upon her knees before six renerable judges, decorated in party-colored robes, as ours formerly were, or arrayed in more solemn ack, such as they have lately assumed, hoping, though a State, that it might have some chance fer justice, exhibits a spectacle of humble and degraded sovereignty far short of the dreadful deunciation to which I allude! If the gentleman feels, as I know many do, rapture at the idea of a State being humiliated and tumbled into the dust, leavy him not his feelings. At such a thought I acknowledge I feel humbled. If the degradation This amendment was rejected, and from the were confined to kings and tyrants, to usurpers who vote entered on the Journal of that day, it appears ad destroyed the liberties of nations, I should not that the difference of votes against the amendel much commiseration; but when applied to ment was formed of those gentlemen who were overnments instituted by the people for the pro-nominated to appointments made vacant by the etion of their liberties, and administered only to omote their happiness, I feel indignant at the ea of degraded sovereignty. I should feel the ane interest for any State, large or small, whether were the little State of Delaware herself, or the ad more insignificant Republic of St. Marino. Mr. STONE, of North Carolina.-The importce of the present question might, I presume, stify any member in delivering his sentiments without apology. But from the able manner in Thich the subject has already been discussed, I ould have been induced to adhere to my usual course since I have been a member of this body, [Here Mr. S. read the amendment proposed, which augmented the number of judges of the Supreme Court, and assigned their circuits.] promotions under the new law. I do not state this circumstance as an evidence that these gentlemen were influenced by improper motives; but to show that the manner in which the new system was formed was not calculated to establish, in the public mind, a decided preference of it over the old system. Having made these remarks on the great deliberation said to have been manifested in the adoption of this plan, I hope I may be permitted to express my perfect coincidence with the gentleman from Connecticut, that courts are necessary for the administration of justice, and that, without them, our laws would be a dead letter. C JANUARY, 1802. But it appears to me essential to the due admin- that "the President, the Vice President, and all istration of justice, that those who preside in our 'civil officers of the United States, shall be recourts should be well acquainted with the laws moved from office on impeachment for, and conwhich are to guide their decisions. And, I ap-viction of, treason, bribery, or other high crimes prehend, that no way is so much calculated to im- and misdemeanors." part this knowledge, as a practical acquaintance with them, by attending courts in the several States, and hearing gentlemen who are particularly acquainted with them, explain and discuss them. It is, therefore, absolutely necessary, in my mind, that the judges of the Supreme Court, whose power controls all the other tribunals, and on whose decisions rest the property, the reputation, the liberty, and the lives of our citizens, should, by riding the circuit, render themselves practically acquainted with their duties. It is well known, that the knowledge of the laws of a State is not to be suddenly acquired, and it is reasonable to conclude, that that knowledge is most correctly possessed by men whose whole lives have been devoted to the acquisition. It is also perfectly well known, that the knowledge of the modes and principles of practice in the different States, or of any State, is most effectually to be acquired in courts, where gentlemen of skill and experience apply those principles to use upon existing points. This defect, then, of the present plan, is, in my opinion, so radical, that, of itself, it would decide, with me, the question of expediency. With regard to the expense of this new system, I will say, that it weighs as much as it is worth. The single consideration of an expenditure of thirty thousand dollars may not be deemed of much importance, when weighed with the benefits derived from an administration of justice over this extensive country. If this great object can be better effected with the additional expense, then it is proper to consider whether the amelioration is worth the price; but, if it is not better effected, it surely cannot be the wish of any gentleman to incur a useless expense. If, when this law passed, the business, to the transaction of which the old courts were fully competent, was lessening, then surely there was no occasion for additional tribunals. The more important consideration involves the Constitutional question: Can we, according to that sacred instrument, repeal this law, and destroy the offices created by it? If we cannot, I hope the Senate will reject the proposition on your table. But if we can, as on examination I think we may, I trust the resolution will be adopted. The gentleman from Kentucky, who introduced this subject, has so fully and forcibly stated that part of the argument which establishes that the office of judge, being declared by the Constitution to be during good behaviour, must evidently apply to existing offices, not to contest the power of the Legislature in doing away offices, that I shall not touch it. I have taken a view of the Constitution, which, though new in this argument, appears to me to be correct and conclusive. The fourth section of the second article of that Constitution declares, This section being added to the article establishing the Executive power, evidently operates as a restraint or curb to that power, to prevent the President, Vice President, or any officer in the appointment of the President, from remaining in office, when, in the opinion of the Legislature, the public good requires them to be displaced. The practical construction put upon this article, in connexion with other parts of the Constitution, is, that all officers in the appointment of the President may be removed at his will; but that those officers, together with himself and Vice President, shall be removed upon impeachment and conviction, by the Legislature. No part of the Constitution expressly gives the power of removal to the President; but a construction has been adopted and practised upon from necessity, giving him that power in all cases in which he is not expressly restrained from the exercise of it. The judges afford an instance in which he is expressly restrained from removal; it being declared, by the first section of the third article of the Constitution, that the judges both of the supreme and inferior courts shall hold their offices during good behaviour. They doubtless shall, (as against the President's power to retain them in office,) in common with other offices of his appointment, be removed from office by impeachment and conviction; but it does not follow that they might not be removed by other means. They shall hold their offices during good behaviour, and they shall be removed from office upon impeachment and conviction of treason, bribery, and other high crimes and misdemeanors. If the words, impeachment of high crimes and misdemeanors, be understood according to any construction of them hitherto received and established, it will be found, that although a judge, guilty of high crimes and misdemeanors, is always guilty of misbehaviour in office, yet that of the various species of misbehaviour in office, which may render it exceedingly improper that a judge should continue in office, many of them are neither treason, nor bribery, nor can they be properly dignified by the appellation of high crimes and misdemeanors; and for the impeachment of which no precedent can be found; nor would the words of the Constitution justify such impeachment. To what source, then, shall we resort for a knowledge of what constitutes this thing, called misbehaviour in office? The Constitution, surely, did not intend that a circumstance so important as the tenure by which the judges hold their offices, should be incapable of being ascertained. Their misbehaviour certainly is not an impeachable offence; still it is the ground upon which the judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under, and according to the Constitution. I take it, therefore, to be a thing undeniable, that 1 |