SENATE. ers. tuted and limited by our Constitution. There are, sir, in every nation two kinds of legislative powThe one is original and extraordinary; and may be called the power of political legislation. It is by an associating nation employed in forming and organizing the Government, in disposing its powers and defining or limiting their exercise. The other is derivative, the ordinary power of legislation, and is employed in the civil regulations of the community. In the first consists the political sovereignty of the nation. This power is transcendent. It is paramount to all other powers in the nation. It can create powers, rights, and duties, and can abolish them at pleasure; not because what it does, is always wise or even just; but because no other power in the nation can have a right, or can be equal to control its operations. In Great Britain, from ancient usage, the consent of the nation witnessed, by long and general acquiescence, both the ordinary and extraordinary powers of legislation are considered to be vested These are the principles to be applied in the inin the Parliament of the nation. Acting in this vestigation of Constitutional powers. Let us then capacity of political sovereign of the nation, the examine the Constitution upon these principles, British Parliament can create rights, and can and fairly determine whether we are permitted the destroy existing rights, at will; although in exer- power for which it has been contended, the Concising such acts of power, they proceed with great stitutional power to remove a judge, by abolishing caution, and are careful to indemnify individuals, the office, and consequently to deprive him of his whose rights they may have injured. In this ca- salary? The first provision which we find in the pacity it can, as it has done, new-model the Gov- Constitution relating to the judicial department, ernment. It can fix and alter the duration of Par- is in the second section, where, among other pow liaments, and change and limit the descent of the ers enumerated, it is declared that Congress shall Crown. Indeed, vested with this power, in addi- have power "to establish tribunals inferior to the tion to the ordinary powers of legislation, the Supreme Court." Upon this it was observed, by figure is hardly too bold, by which, when acting the honorable gentleman from Georgia, (Mr. JACKon subjects within the reach of its authority, it is SON,) that this being a grant to Congress of a lesaid to be omnipotent. Not so the Congress of the gislative power to establish inferior courts, necesUnited States; they possess not that transcendent sarily includes the incidental power to repeal; that power, that uncontrollable sovereignty of the na- this being a first grant, cannot be restrained nor tion; they possess the ordinary powers only of le- taken away by any subsequent provision in the gislation; and these powers they derive under the Constitution upon the same subject; that we are Constitution of the United States: by this instru- to take the rule of construction, that the first grant, ment their powers are instituted, limited and de- and the first word of a grantor in a deed, shall fined. This instrument is the act of the political prevail over a subsequent grant, or subsequent sovereign, the People of the United States. To words of a different import. Are we, indeed, sir, them it was proposed, and they, through their agents to apply in the construction of the Constitution, empowered for that purpose, enacted it the funda- the law, the supreme law of the nation, the rules mental and supreme law of the National Govern-devised for the construction of a deed, a grant, by ment. They have said, as they had a right to say on this subject, Congress shall act; or that they may act at their discretion; here the Congressional power is limited, there is placed a barrier which shall not be passed. Congress, as I observed, possess not this paramount power; but in one mode, provided for altering and amending the Constitution, they are, under certain restrictions, permitted an inceptive power. They have a right to originate proposals of amendments, which, when ratified by three-fourths of the State Legislatures, to whom the national sovereignty is in this instance referred, are adopted into, and become a part of that instrument. In another mode, the State Le-a gislatures have the power of inception; they also may originate proposals of amendments, which Congress must refer to a convention of the people In the third section of the Constitution is a for their ultimate acceptance and ratification. In further provision: "That the judicial power of this instance alone, have the people of this coun- |' the United States shall be vested in one Supreme try reserved to themselves a portion of the national sovereignty, in the exercise of which is only found that voice of the people, which, because it is not to be resisted, is sometimes called the voice of God. This, sir, is the authority of that supreme law under which we act, the Constitution of the United States; an authority indispensably binding. We have no right, when we wish to carry a favorite measure, to which we find some barrier opposed by the Constitution, to prostrate or to overleap that barrier. We have no right to say that the national sovereign, could it now be consulted, would dispense with the limitation, would remove the barrier, which, in our present opinion, stands opposed to the public good. No, sir, we may not approach this ground. It is dangerous; it is an usurpation of the national sovereignty. We are but agents of the nation, acting under a limited authority. All our acts which exceed that authority are void. which a few paltry acres are transferred from one individual to another? No, sir, very different are the rules of construction; the first act of the grantor, but the last act of the Legislature, shall prevail; or where, in any case, is the power to repeal? Another rule, more universally applicable, is, that you shall so construe a law that every part of it, if possible, may stand together, that every part may have its operation. Thus, if there be a general provision in the former part of a law, and there follow a particular provision, which cannot take effect unless some part of the former provision be set aside, the latter shall be considered as limitation of the former, and which shall be carried into effect so far only as it is not incompatible with the latter. JANUARY 1802. Judiciary System. SENATE. hold their offices? So long as they shall continue to behave well. That is, the duration of the time for which they shall be entitled to receive an undiminished salary, shall be equal to the duration of the time for which they are entitled to hold their offices, equal to the duration of the time in which they shall continue to behave well. What rarely happens in subjects of this nature, the position that the judges cannot, during good behaviour, without a direct violation of the Conssitution, be deprived of holding their offices, or of receiving their salaries, is capable of the highest proof, not merely by a train of probable and metaphysical reasoning, but by the clearest and plainest mathematical demonstration. It is a comparison of quantities in the duration of time; or shall it now for the first time be said, that when one quantity, or one length of duration is equal to a second, and the second to a third, that nevertheless they are not equal each to the other? Have intuitive truths at length changed their nature? Are they in these times inverted to falsehoods? Have the clearest axioms of ancient science suffered a revolutionary subversion? No, sir, they remain the same; they are still capable of assisting us to the same infallible conclusions. Court, and in such inferior courts as the Con- causing it to vanish from its hold on any other gress may, from time to time, ordain and ap- ground or pretence whatever. It is a well-known point." The highest judicial authority shall not rule, that the expression of an exception in any be divided into two courts. It shall, to use a ruder provision, excludes every other exception by imphrase, be one and indivisible. I consider it as plication. Next it follows," and shall (the judges imperative on Congress to establish, not only a shall) at stated times receive for their services a Supreme Court, but also to establish some courts compensation, which shall not be diminished duof inferior jurisdiction, which may be modified'ring their continuance in office." How long shall and extended from time to time, as experience and they continue to receive, or be entitled to receive, future expedience shall dictate, so that it be with- an undiminished compensation or salary? So out violence to any part of the Constitution. The long as they shall continue to hold their respectwords, "as Congress may, from time to time, or-ive offices. And how long are they entitled to dain and appoint," were introduced with intent so far to give a discretion on the subject. The power of erecting courts, is here taken for granted, as is contained in the clause before cited, from the second section, supplied by the general clause, by which it is declared. that "Congress shall have power to make all laws which shall be necessary and proper for carrying into effect all the powers vested by the Constitution in the Gov'ernment of the United States, or in any officer, or department of the Government." I cannot understand it; for how is it possible so to understand it, that the words, "may ordain and appoint," in their connexion imply also to abolish? Certainly it is not a necessary implication. That Congress are required to make a provision of inferior courts; that the thing is not merely optional, is very clear from another part of this section, declaring to what class the judicial authority of the United States shall be extended. [Read that part of the section.] Here observe, the Supreme Court has original jurisdiction in the smaller number only of the cases specified; so that without a provision of inferior courts there would be no provision for the greater number, and the judicial authority, instead of being extended to all the cases enumerated, would in fact be limited to a few only. Let us now examine the provision relating to the judges, which is contained in the former part of this section-a provision intended to secure to the judges a proper degree of independence. It is declared, that "the judges both of the Supreme Court and inferior courts, shall hold their offices during good behaviour." The judges of all the courts are placed on the same footing. The expression is not, that they shall continue in office, which might seem to be compulsory, but shall hold their offices, implying at their option, during good behaviour. For a judge may resign; he may accept a place incompatible with the office of judge, as he may, on election, accept the place of Senator or Representative in Congress, by which his office of judge would be vacated by his own act, implying a resignation. The force of the expression clearly is, that no judge, either of the supreme or inferior courts, so long as he continues to behave well, can be removed from the office, or the office removed from him by the act of any other. For the expression being general, with only one exception, in the nature of a proviso, that he continues to behave well, it is exclusive of every power either to remove the judge from the office, or, as has been ingeniously indeed suggested, of removing the office from the judge, 7th CoN.-5 The gentleman from Kentucky has told us, that if the construction against which he contended had been contemplated by the framers of the Constitution, it would have been explicitly declared, that the judges shall hold their offices and salaries during good behaviour; fairly admitting, that a declaration thus explicit, would have been conclusive for the construction of his opponent. Surely it will not be contended, that the idiom of the English language is so inflexible, and its interpretation so precise, that identical positions to be equally clear and explicit, can be expressed by identical words and phrases only. Had the expression been, they should hold their offices and receive their salaries during good behaviour, would not the meaning have been the same and equally expressive? Indeed the word hold, though well applied to an office, is not very properly applied to taking the payment of a salary. Or had it been, "they shall hold their office during good behaviour, and 'while they continue in office, which is to be during good behaviour, they shall continue to receive their salaries, which shall not during that time be diminished," it certainly would have been a declaration equally explicit with that suggested by the gentleman. And this it has been clearly and demonstrably proved, is the same as that which is expressed in the Constitution. SENATE. Judiciary System. JANUARY, 1802. I will here, sir, though it might perhaps have been more properly done before, make a few observations on the independence of the judiciary. It has been said by some gentlemen, in effect, that though the judges ought to be independent of the Executive-though they ought not to hold their offices or salaries dependent on the will of the President, yet, in a Government like ours, there can be no reason why they should not. like the other departments of the Government, be dependent on public opinion, and on Congress, as prop-negative to the resolution on your table. erly representing that opinion. That if the judges are made thus independent; if Congress cannot remove them by abolishing their offices, or in any other way, except that of impeachment for misbehaviour, they will become a dangerous body in the State; they may, by their discussions on the constitutionality of a law, obstruct the most important measures of Government for the public good. ers, can be but a dead letter. Better would it be they were even expunged. Thus, sir, it appears, that the independence of the judges, even of Congress in their Legislative capacity, is agreeable to the nature of our Government, to the whole tenor as well as the express letter of the Constitution. But, sir, at this late stage of the debate I will not farther enlarge; I will only add, that upon these principles, and with these views of the subject, I shall give a hearty Unfortunately for the argument, this doctrine agrees neither with the nature of our Government, which is not vested with the unlimited national sovereignty, but from that derives its powers, nor with the positive and solemn declaration of the Constitution. That Constitution is a system of powers, limitations, and checks. The Legislative power is there limited, with even more guarded caution than the Executive; because not capable of a check by impeachment, and because it was apprehended, that left unlimited and uncontrolled, it might be extended to dangerous encroachments on the remaining State powers. But to what purpose are the powers of Congress limited by that instrument? To what purpose is it declared to be the supreme law of the land, and as such, binding on the courts of the United States, and of the several States, if it may not be applied to the derivative laws to test their constitutionality? Shall it be only called in to enforce obedience to the laws of Congress, in opposition to the acts of the several States, and even to their rightful powers! Such cannot have been the intention. But, sir, it will be in vain long to expect from the judges, the firmness and integrity to oppose a Constitutional decision to a law, either of the national Legislature, or to a law of any of the powerful States, unless it should interfere with a law of Congress; if such a decision is to be made at the risk of office and salary, of public character, and the means of subsistence. And such will be the situation of your judges, if Congress can, by law, or in any other way, except by way of impeachment, deprive them of their offices and salaries on any pretence whatever. For it will be remembered, that the legislative powers of the several States, as well as those of Congress, are limited by the Constitution. For instance, they are prohibited, as well as Congress, to pass any bill of attainder or ex post facto law. The decisions of the judges upon such laws, and such decisions they have already been called upon to make, may raise against them, even in Congress, the influence of the most powerful States in the Union. In such a situation of the judges, the Constitutional limitation on the Legislative pow Mr. WELLS, of Delaware.-I know not what apology I shall make for rising at this late period of the debate, unless I find it in the importance of the subject under discussion. Coming, as I do, from one of the smaller States, all of whom, from their peculiar situation, feel perhaps more than a common interest with their sister States in the preservation of this Constitution, I could not be indifferent to the progress of the present question. To a State circumstanced like that to which I have the honor to belong, the Constitution of the United States is the charter of her rights and the palladium of her liberties. I must, therefore, be forever induced by sentiments of attachment as well as duty to resist a measure calculated to subvert that Constitution. Such, I believe, is the tendency of the resolution on your table. When I say so, I do not mean to impute any unworthy motive to the gentleman who moved the resolution, or to those who have supported him. Assured I am, that those gentlemen regard this business in a very different light from what we do, or they would not have brought it forward. Believing that the law in question is a bad one, and may be constitutionally repealed, it was their duty to endeavor to effect its repeal. Permit me now, sir, to glance in as cursory a manner as possible, that I may take up no more of your time than need be, at some of the reasons which have been assigned by the friends of this resolution. We have been told that the law proposed to be repealed, is unnecessarily expensive. That it is not calculated to promote the proper objects of a judiciary, and may be constitutionally repealed. That the old system, which this has superseded, was sufficient for the due administration of justice, and therefore it is expedient to revive it. It is true, sir, that the retrenchment of expenses has been recommended to us by the President. It was his duty to do so. It is what the people had a right to expect from us as well as him. And these expectations, I trust, would not have been disappointed, even if our attention to it had not been invited by the Executive. We are placed now in a very different situation from what we have been for several years. The war in Europe is over. A war, permit me to say, more dreadful than any we read of. It has raged like a tremendous tempest, bearing down almost everything before it. It was not to have been expected that this our nation, towering like the majestic oak, should have escaped its fury, yet it has left us standing-the pride of the forest, and the only one to which it has not done some cruel mischief. But the storm is passed by; the danger is over, and many expensive establishments may now be reduced which could not before have been relaxed. It may now be economy to save, what it would have then been ruin not to have expended. But is the Judiciary of a nature to be reduced to what is called a peace establishment? From the manner in which gentlemen have talked of the expense of this department, it would seem that the sum to be saved by the measure now contemplated, was one hundred and thirty-seven thousand dollars, whereas the real amount is only about thirty thousand dollars. It is true. sir, this sum itself, were it even less, would be too much to squander away. But when you consider, that if you revive the former law, you must unavoidably increase the number of the judges of the Supreme Court, the difference of expense between the two systems will, probably, be about twelve or fifteen thousand dollars. And for this sum, amounting, among the people, to less than one third of a cent per man, will gentlemen persist in a measure calculated, in the opinion of almost half of the members of this body, to subvert your Constitution? Is this the economy which our constituents require from us? Do they wish us, like rash and greedy gamesters, to risk their all upon one single cast of the die? If the gentlemen are right, we save about twelve or fifteen thousand dollars. If they are mistaken in their opinions, we lose our Constitution. Is there any possible comparison between the advantage and the risk? But for argument sake be it admitted, that the danger on either hand is equal. Let us then examine the claims of each opinion to preference. By the former law, which it is now proposed to repeal, there were six judges of the Supreme Court appointed in the United States. In each State was placed one district judge. For each State there was held a circuit court twice a year: this was composed of one or more of the judges of the Supreme Court and the district judge. The district judge in each State held a court of his own four times a year. The judges of the Supreme Court, besides holding these circuit courts, were twice a year to hold a Supreme Court at the seat of Government. One objection, in my mind, to the old system, was the duties of the inferior and superior judges being blended together and not sufficiently separated. Thus the judge of the district court was called to go up and associate himself with the judge of the Supreme Court; who was obliged to come down from the highest court to hold a circuit court. Your judges were like a Proteus; constantly changing their character. Each set of judges, in my opinion, ought to have their appropriate sphere, and should never be suffered to move out of it. Another objection is not without its weight. The same judges did not always attend the same circuit court; and, according to the gentleman from Georgia, (Mr. BALDWIN,) this change is necessary, in order that the judges may in turn become, all of them, acquainted with the municipal laws and customs of the different States. What was the consequence? A judge, after attending a circuit court, and hearing SENATE. a learned argument, was obliged sometimes to postpone his determination to the next term. When that arrived, a judge of the Supreme Court attended; but not being the same that attended before, a new argument became necessary. This, sir, may have been delightful sport for the gentlemen of the bar: the poor clients must have felt far differently. But the strongest objection to the system was the impossibility of the judges discharging the duty required of them. These six judges were to attend, among them, eight and thirty courts in one year. Considering the immense extent of country over which these courts were spread, and making due allowances for the many causes which would probably always prevent two or more of the judges from attending the circuits, each judge would have to attend twelve courts in a year. If this system is to prevail, you must select your judges as you enlist soldiers. Instead of inquiring for lawyers of integrity and talents, you must look out for able-bodied men; for such as are best fitted to stand the fatigue of constant travelling, and least liable to be affected by the inclemencies of weather. It is impossible, if gentlemen will reflect, that they can believe it expedient to revive a system so liable to objections, so impossible to be executed. Let us now for a moment examine the law which is proposed to be repealed. It classes the United States into six circuits. In each of the States comprising a circuit, there is a circuit judge. In each circuit there is a court composed of the circuit judges, living within that circuit. The judges of the Supreme Court hold their sessions at the seat of Government twice a year. There is an appeal from the district court of each State, to the court of the circuit within which that State is classed. From the determination of the circuit court there is a final appeal to the Supreme Court. The same judges are not here, as under the former law, judges of the superior and inferior courts. Each has his proper station. No judge will here have to act upon an appeal from his own decision. In the one there is order and symmetry; in the other naught but confusion. But it would seem in vain to reason upon the relative value of the two systems; for gentlemen think that they have discovered, by arithmetical calculations, that the late law was unnecessary. They endeavor to prove that the suits were decreasing in number at the time the additional judges were appointed. The document they rely upon for this purpose, is a return made from the clerks of the different circuit courts, showing the annual number of suits brought in each court since the year 1790. This return is not only inaccurate, but furnishes directly the reverse conclusions from those which have been drawn from it. I say it is inaccurate, because the return from the court of Maryland is entirely omitted, and the aggregates of the suits in the States of Tennessee and Kentucky are only given. It is incorrect in another respect. On the returns from the States of Massachusetts, and Virginia, it is stated that the suits depending are not included in those columns which show the number of suits annually instituted. This document, therefore, is too glaringly incorrect to be relied upon for establishing any conclusion which ought to guide us in business of this importance. But let us take it as we find it, and see if the calculations of the gentleman from Kentucky (Mr. BRECKENRIDGE) are more to be relied upon than the document itself. The gentleman says that in 1799 there were twelve hundred and seventy-seven suits instituted; and in 1800 there were six hundred and eighty-seven suits commenced; showing a decrease, "notwithstanding," as he says, "all the temporary and untoward sources of federal adjudication," of five hundred and ninety suits. There is one circumstance of importance to be noted in making this calculation. In the year 1799 there were four hundred and twenty-three suits brought in South Carolina, which is more than one half of the whole number of suits brought in that State for ten years together. The greater part of these suits were brought by Miller and Company, for the infringement of a patent right which they had obtained. The largest number of suits brought in that State, in any one year preceding the year 1799, was one hundred and four. The gentleman from Kentucky includes these suits in that year's ac423 count Leaving a decrease of suits, instead of 590, only It will be observed, as before mentioned, that there are included in the account of suits brought in the year 1799, 423 suits brought that year in the State of South Carolina. These exceed by 319 the highest number of suits brought in any preceding year in that State. It will therefore be necessary to deduct these out of the above number, in taking a fair view of this subject The real decrease between the years 1799 and 1800 will only be JANUARY, 1802. seven; in 1796, four hundred and sixty-six; in 1797, nine hundred and twenty-four; in 1798, six hundred and fourteen; in 1799, eight hundred and fifty-four; in 1800, seven hundred and eighty-one. The following calculation is made in order to show the number of suits brought, including those of South Carolina, from 1790 to 1800, viz: In 1790, one hundred and eleven; in 1791, three hundred and thirteen; in 1792, three hundred and thirty-three; in 1793, four hundred and forty-six; in 1794, three hundred and eighty-five; in 1795, six hundred and fourteen; in 1796, four hundred and ninety; in 1797, nine hundred and seventyseven; in 1798, seven hundred and nineteen; in 1799, twelve hundred and seventy-seven; in 1800, eight hundred and eighty-nine. Thus, although it is apparent that there has been a gradual increase of suits, since the first establishment of the judiciary, yet the gentleman from Kentucky has endeavored to impress an opinion, that the suits have decreased in the proportion that six hundred and eighty-seven bears to twelve hundred and seventy-seven; and this, to use the gentleman's language, "notwithstanding all the temporary and untoward sources of federal adjudications." Yet he has taken special care, in order to swell up the suits of the year 1799, to draw from "these temporary and untoward sources of federal adjudications," all the criminal suits of that year, and to include the three hundred and nineteen suits of Miller and Company; but observe, when he comes to put down the suits of 1800, to contrast them with the number brought in 1799, these "untoward sources" are immediately dried up; for he excludes from his account all the criminal suits of that year, and one hundred other suits. Pray, sir, what kind of arithmetic is this? Is this the federal arithmetic which gentlemen have talk889 ed so much about? 854 1277 388 319 69 Permit me now, sir, to say but a word or two upon the unconstitutionality of this measure. The Constitution has declared that the judicial power shall be vested in a supreme court, and in such inferior courts as Congress may, from time to time, create. It has added, that the judges of both the inferior and superior courts shall hold their offices duing good behaviour; but may be removed on impeachment, by the House of Representatives and conviction by two-thirds of the Senate. What words can go stronger to the exclusion of every dependence of that department upon the pleasure of any other? The people have thus duly secured the two great objects they had in view, the independence of the judges, and their responsibility. This, however, is a new way of getting But, in order to place this business in a still at the judge without affecting his independence. clearer point of view, I beg leave to submit a cal- We will not touch the judge, but we will slip the culation showing the annual aggregate number office from under him. We will not lower his salof suits from 1790 to 1800, from which I have ex-ary while he is in office, but we will so contrive it cluded the whole of the suits brought in South Carolina since the first establishment of the courts, viz: that he shall be divested of his office and salary at the same time. Thus, a mere majority of each House, with the concurrence of the President, shall In 1790, one hundred and eleven; in 1791, three effect, without any fault in the judge, what the hundred and six; in 1792, three hundred and elev- people designed should be brought about only by en; in 1793, four hundred; in 1794, three hundred impeachment. But we are asked, "suppose Conand sixty-five; in 1795, five hundred and twenty-gress should appoint an army of judges?" I will |