tion, that a law growing out of one of the speci- | instance; the money is applied: its object is fied powers, in contradistinction to all others, should be irrepealable when once passed, so extraordinary a principle would be left to mere implication? Such a supposition would be the highest injustice to the superior intelligence and patriotism of those gentlemen, manifested in every other part of the instrument. No, sir, they would have made notes of admiration; they would have used every mark, adopted every caution, to have arrested and fixed the attention of the legislature to so extraordinary a principle.

I will now examine some of the consequences of the doctrine against the repeal, and see if it can be recommended from that consideration. First, as it respects the judicial department. Its first effect is to produce a perpetual increase of judges and salaries, without any practicable mode of reducing them. This is inconsistent both with the general sentiment of the people and the constitution, which requires that no compensation shall be received, without an equivalent service rendered.

here during their continuance in office. In | Bacon, has put this subject in a so much England, the parliament may diminish the com- stronger point of view than I could have done, pensation of the judges at their discretion, that I would refer to his remarks thereupon, during their continuance in office. Here, then, observing only that I have no doubt but that is another obvious advantage in favor of the in- the law of last session, now proposed to be redependence of the judges of the United States; pealed, is, in every respect, as much opposed to whence is it then, that we hear of the indepen- the doctrine of gentlemen, as the contemplated dence of the English judiciary, as being the boast repeal can be. The sections of the law parand glory of that country, and with justice too, ticularly alluded to, are the twenty-fourth, in and at the same time hear the cry of the immo- these words, "and be it further enacted, that lation of the independence of the judges of the the district courts of the United States, in and United States, when, under the interpretation for the districts of Tennessee and Kentucky, of the constitution by the favorers of the re- shall be and are hereby abolished," and the peal, the judges here are more independent twenty-seventh, in these words, "and be it than the English judges? It can have no other further enacted, that the circuit courts of the object than to excite a popular clamor, which, United States, heretofore established, shall cease if excited at all, can have only a momentary and be abolished." effect, and will be dissipated as soon as the subject shall be thoroughly examined and understood. But it appears to me, that if gentlemen really do value the independence of the judges, they have taken an unfortunate ground in the interpretation of the constitution. Under their construction, the judges may be placed not only in a dependent, but a ludicrous point of view. Gentlemen admit that Congress may constitutionally increase or diminish the duties of the judges; give or take away jurisdiction; fix the times of holding courts, &c., saving therefrom the salaries of the judges. Under this admission, Congress may postpone the sessions of the courts for eight or ten years, and establish others, to whom they could transfer all the powers of the existing courts. In this case, the judges would be held up to the people as pensioners receiving their money and rendering no service in return; or Congress might convert them into mere courts of "piepoudre," assigning them the most paltry duties to perform, and keep them continually in session, in inconvenient places; whilst new courts could be erected to perform all the essential business of the nation. This would be taking down the high pretensions, assigned to the judges by the gentleman from North Carolina, Mr. Henderson, of being formed into a permanent corps, for the purpose of protecting the people against their worst enemies, themselves; and degrading them into pitiful courts of "piepoudre," rendering little service and receiving large compensations. And this would be the case, if party purposes were the object, and not the general good. According to his construction, these absurd results could not take place, unless by a virtual breach of the constitution. Because, I contend, that service and compensation are correlative terms; and that there ought always to be a due apportionment of service to compensation. This I consider as the plain and sound interpretation of the constitution, and the moment it is departed from, infinite absurdities ensue. I intended to have taken another view of this subject, as it respects the relative influence of the law of the last session, and the proposed repeal upon this question; but the gentleman from Massachusetts, Mr.

The gentleman from Pennsylvania supposes, that there would be as much danger, that a corrupt legislature would give an enormous sum, say two hundred thousand dollars, to one judge, as to appoint too great a number of judges. Yet he says, the legislature is restrained in express words from lessening the salary, and he infers froin that circumstance, that it is also restrained from lessening the number of offices. I draw from it a direct contrary inference. If there be neither the power to lessen the sum nor abolish the office, there is no remedy for the evil the gentleman suggests. It is an incurable mischief. There is, therefore, a necessity for a power to abolish the office, as a remedy against the enormous abuse of giving so large a sum without the rendition of equivalent service. And as express words were deemed necessary to limit the discretion of Congress against diminishing the sum, so would there have been greater necessity for express words to limit the discretion of Congress against the abolition of unnecessary offices.

And

According to a sound rule of interpretation, where a general grant of power is made, and one limitation to the general power is expressed, the expression of that limitation is an exclusion of all intention to make any other limitation whatever by inference or implication. this rule will apply to all other cases put by gentlemen, where there is an express limitation of legislative authority. But the most important consequence from this doctrine is, that it erects the judges into a body politic and corporate, in perpetual succession, with censorial and controlling powers over the other departments. And for what purpose? The gentleman from North Carolina, Mr. Henderson, has

people from their worst enemies-themselves!" I should not resort so frequently to this expression, but that I consider it as the candid and correct exposition of the object of gentlemen opposed to the repeal. It is the doctrine of irresponsibility against the doctrine of respon

informed us," to protect the people against their | important in the United States, "to protect the worst enemies," themselves! This is the real exposition of the object in very few but emphatical words. As the inducement to the adoption of this principle, gentlemen have reminded us of the fate of a foreign country, of the violent passions which agitate popular assemblies, of the age, experience, the unassum-sibility. The latter, I have endeavored to ing talents and unambitious virtue of judges. The judges were selected from their fellowcitizens, and I presume possess the same human propensities. All men love power, and in general, those love it best who know best how to use it. Let us apply this remark to the judges of the United States.

show, characterizes the Constitution of the United States. It is the doctrine of despotism, in opposition to the representative system. It is an express avowal, that the people are incompetent to govern themselves. This, I believe to have been the great characteristic difference from the commencement of the administration of the government to the present day. If, indeed, there be a political corps necessary to interpose between the people and themselves, I consider the judiciary corps, supported by the doctrines on this floor, well cal

Very shortly after the establishment of the courts, the judges decided, that they had jurisdiction over the States in their sovereign capacity. Did this, in the judges, seem unambitious? The states thought it did not. It happened, that during the revo-culated to effect that object. lutionary war, the State of Massachusetts had issued certain obligatory bills, which were made transferable, and which were outstanding without any provision for their payment; suits were instituted on these bills. The court determined to bring the great State of Massachusetts, and not Virginia, on its knees, not at the feet of justice, but of policy. Upon the representation of Massachusetts an amendment was made to the Constitution of the United States, declaring that the constitution should not be construed to extend to authorizing the courts to arraign and pronounce judgment against states which had not consented to give up their sovereignty. Thus this unambitious project of the judges was prostrated by a constitutional interposition. The amendment is in the following words: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state." The judges have determined that they are judges in the last resort upon the constitutionality of your laws. I propose not to discuss this question, because I do not think it pertinent to the question before us. I only mention it to show their unlimited claims to power. The judges have determined that their jurisdiction extends to the "lex non scripta," or rather to the "lex non descripta," or common law. Does this, in the judges, seem unambitious? This law pervades the whole municipal regulations of the country. It is unlimited in its object, and indefinite in its character. Legalize this unassuming claim of jurisdiction by the judges, and they have before them every object of legislation. They have sent a mandatory process, or process leading to a "mandamus," into the executive cabinet, to examine its concerns. Does this, in the judges, seem unambitious? Now, sir, examine and combine the extraordinary pretensions to power, legalize them, and you have precisely that body politic and corporate which gentlemen deem so

I will now examine the consequences of the doctrine against the repeal, as it respects the legislature. It will have a direct tendency to impair the responsibility of the representatives to the people. I cannot illustrate this observation better than by giving the history of the law proposed to be repealed.

The first bill for changing the organization of the courts of the United States was reported to the House of Representatives the 11th of March, 1800; after undergoing some discussion and amendment, it was re-committed and reported again the 31st of March, 1800; on the 14th of April, it was postponed by a majority of two votes. At this time, the presidential election was approaching, and the result uncertain. The bill upon which the law in question was founded, was reported to the House of Representatives the 19th of December, 1800, and passed that House the 20th of January, 1801. It was read in the Senate the 21st of January, 1801, and passed the 7th of February, 1801. At this time, the presidential election, so far as it respected the then existing President, was ascertained.

I propose to be particular in ascertaining the facts respecting the passage of this law and its execution, because gentlemen have complained that rumors have gone into circulation respecting its passage, and the appointments under it, not warranted by the facts; a sense of justice has, therefore, induced me to make the strictest inquiry into the dates and facts, and the result of that inquiry, upon my mind, has been as unfavorable to its advocates, as any impression which had been made by the rumors complained of. At the time of passing the law, no complaints had been presented to Congress against the competency of the former system; not even a memorial from the bar of Philadelphia. I believe the former system to have been amply competent. The business, indeed, had very much declined; in the spring of 1799, the whole number of causes instituted, exclusive of Maryland and Tennessee, amounted to seven

hundred and three, besides seventy-eight criminal prosecutions in Pennsylvania. In the fall of 1800, there were instituted only three hundred and fifty-five; without any information, however, on this point, the law was passed. On the 18th of February, 1801, it was approved by the President. On turning to the journals of that day, it will be found that the House of Representatives was not engaged in the ordinary business of the session. They were engaged in the extraordinary business of electing a President.

then held, to the offices newly created, and supplying their places by members of the legislature, who voted for the creation of the new offices. In this substitution, however, it appears, that no respect was paid to another provision of the constitution. The sixth section of the first article of the constitution contains these words, "no senator or representative shall, during the time for which he was elected, be appointed to any civil office, under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office." If vacancies had existed in the previously existing judicial establishments, the appointments of the members of the legislature might not be considered as a direct breach of this provision in the constitution; but this was not the fact, no vacan

In a note made on that day on the journals, will be found a message from the President in these words: "A message was received from the President of the United States by Mr. Shaw, his Secretary, notifying, that the President did this day approve and sign an act which originated in the House of Representatives, entitled, 'An act to provide for the more convenient organization of the courts of the United States.' Upon examining the journals them-cies did exist. It was necessary, to make proviselves, I find an entry in these words: "The time agreed upon by the last-mentioned vote being expired, the States proceeded in manner aforesaid the twenty-ninth ballot: and upon examination thereof, the result was declared to be the same." Need I remind gentlemen, now present, who were agents in the existing scenes, of the extraordinary situation of Congress at that moment, when in the House of Representatives the ordinary business of legislation was suspended, a permanent session decreed; when lodging and subsistence were furnished the members within the walls of the chamber; when even a sick bed was introduced to enable its patient to discharge a sacred duty? Need I awaken the recollection of our fellow citizens, who were looking, with indignant anxiety, on the awful scene, beholding their representatives, urged by the most tempestuous passions, and pushing forward to immolate the constitution of their country? No, sir, the awful scene is freshly remembered! And what was its object? To prevent the fair and known expressions of the public will in the highest function it has to perform. In the choice of the chief executive magistrate of the nation. In this state of things, when all confidence amongst the members of this House was lost, in the highest paroxysm of party rage, was this law ushered into existence. And now its advocates gravely tell us to be calm, to guard against the danger of our passions. They tell us, at the same time, that the law they have passed is sacred! inviolable! irrepealable! Does it merit this extraordinary character from the circumstances which accompanied its passage? It does not.

Let us examine how this law was carried into effect. Members of the legislature, who voted for the passage of the law, were appointed to offices, not indeed created by the law, the constitution having wisely guarded against an effect of that sort, but to judicial offices previously created; by the removal of what was called the promotion of judges from offices they

sion for members voting for the law, that vacancies should be made by the removal or promotion of the then existing judges. This was done under this authority in the constitution. Second section, second article, "he, (to wit,) the President of the United States, shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers and consuls, judges of the supreme court, and all other offi cers of the United States," &c.; again, "the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." How did the then President exercise the power in the present case? He did not wait until the vacancies should happen. He attempted to make vacancies, by what he called the promotion of judges, although they held their commissions of him, "during good behavior," and without waiting to know whether the judges would accept the promotion or not, upon which event alone a vacancy could accrue; he proceeded to appoint and actually commission members of the legislature to offices, then actually held by other commissions granted to other persons. What was the effect of this procedure? That two persons held commissions to perform the same duties, although one person only was authorized by law to discharge those duties, whilst the office, where the promotion was refused, remained vacant. This was actually the case, in several of the districts of the United States. This subject will be put into a still stronger point of view, by examining the journals of the Senate, which I am sorry to do for this purpose. When discussing the bill in question in the Senate, I find this entry on their journals, "on motion to strike out the whole of the bill after the words (from and after,) section first, line second, for the purpose of inserting as follows, (to wit,) a substitute for the bill." On the question to agree to this motion,

they have used to exclude this system entirely from the practical operation of the government, that the constitution itself should be made the instrument of its introduction, and its permanent, irrevocable establishment? And this too at the moment of an expiring administration; when the passions of men just parting from power, were breaking down every impediment which stood in the way of attaining their object! Upon the whole, therefore, it appears, that this doctrine of the irrepealability of laws derives no consideration from the consequences which naturally flow from it.

it passed in the negative-yeas, thirteen-nays, seventeen. I observe among the nays, the names of Mr. Green, of Rhode Island, and Mr. Read, of South Carolina. Both these gentlemen received appointments in virtue of the promotion of judges under this law. If these gentlemen had voted on the opposite side of the question, the law would never have been in existence. I mention this circumstance, not to impugn the motives of any gentleman, but to demonstrate the temptation held out to the members of the legislature, under the doctrine contended for against the repeal of this law. The refusal of the present President to correct what was called a mistake in Mr. Green's appointment, having excited some clamor, it is necessary to put this subject in a correct point of view. It seems, that in filling up Mr. Green's commission, the word "circuit," instead of the word “district," was inserted, it is presumed, by mistake. If the commission was intended for the circuit court, it was a breach of the constitution, in its most obvious letter. If it was intended for the district court, it was void "ab initio;" because, at the date of the commission, no vacancy had happened, and the President's right to appoint depended on that precedent condition, and he, therefore, in making the appointment, attempted to exercise a power he did not possess. It must be obvious to every gentleman, that Mr. Green's accepting the commission, under all the incidents attending the case, could furnish but a negative recommendation of Mr. Green, in his application for that or any other appointment. Upon a review of the history of the law in question, according to the doctrine of its advocates, the temptation to the legislature to make permanent, irrevocable provision for themselves, must be obvious to every impartial observer. If, when a judicial estab-system is one hundred and thirty-seven thousand lishment be once made, it becomes irrevocable, how easy would it be for a legislature, combined with the executive, to compensate themselves for the loss of the confidence of their constituents, by following the example before us? By erecting a new tier of judges, holding out to them additional emoluments, and by filling up the vacancies, occasioned by their promotion, with the members of the legislature.

This operation would be most likely to take place when the representatives had lost the confidence of their constituents, and of course less likely to be influenced by considerations of public good. Again, sir, the sinecure system thus established, would have the advantage of all other similar systems existing in the world; because, if in other countries the sinecure system has become oppressive to the people, they have the consolation to recollect, that the evil may be lessened by the competent authority; but, according to the doctrine, upon which the system is bottomed in the United States, no remedy can be applied to the mischief, by the union of all the responsible agents of the people. How, sir, would the framers of our constitution lament, after all the care and circumspection

Having exhausted so great a portion of the time and attention of the committee, in discusing the constitutional question, which has been made the cardinal point in the debate, I propose to confine myself to very few observations upon the expediency of the contemplated repeal. I take it for granted, that the former judicial system was competent to the discharge of all the judicial business in the United States; but if that should be denied, I think it demonstrable from the document before the committee. The gentleman from Delaware, Mr. Bayard, has intimated a doubt whether the President acted correctly, in favoring us with the document. I shall only observe in reply, that the constitution imposes a duty upon the President, from time to time, to give to Congress information of the state of the Union, and recommend to their consideration, such measures as he shall judge necessary and expedient. The number of suits in the courts of the United States must always be very small, from the limited objects of their jurisdiction; this will appear by reading the second section of the third article of the constitution, limiting their jurisdiction. The whole expense of the existing

dollars, of which forty thousand or fifty thousand dollars may be attributable to the new system; the estimates differing between these two sums. Whether the expense be estimated, either according to the service to be rendered, or by comparison with any other system, it appears to me to be enormous. I have examined the document before us, by way of ascertaining the relative view of expense and service, and also the competency of the former system to the discharge of the business. I would not, however, be responsible for precise clerical accuracy, in my addition, which has also been deemed a subject worthy of criticism against the President of the United States. But if it be within twenty-five per centum of being correct, it will demonstrate, first, that the former courts were competent to the business; second, that the number of causes bears no proportion to the expense of the institution.

I will present to the view of the committee, the whole number of causes instituted at the respective sessions of the courts, from the spring of 1796 to the spring of 1801. I have fixed upon the year 1796, because the business began then to increase under the influence of the British treaty.