ent determined not to say much; but a justification of the vote I shall give, has impelled me to offer my reasons for it to the State I represent; and I have made up my mind, decidedly, to vote for the resolution before you, if I cannot be otherwise convinced. I conceive, that as this subject requires from us a legislative construction, that construction may as well, and indeed better, be now made; there will undoubtedly hereafter be a clashing of powers. I therefore think it is much better to decide it now, when the injury is felt, than to suffer it to take root until it shall extort a different and more violent decision than that of a deliberative body. The reasons for the resolution have been so ably stated, and strongly enforced, by the gentleman from Kentucky who moved it, as to expediency, and the burden of the expenses on the present system, that I shall therefore say little about them. The expenses, however, of the Judiciary establishment, I deem the least important consideration attached to the subject. Yet, I do not agree with the gentleman who has spoken, that the expense is trifling. The gentleman from New-York had held up the insignificancy of a cent a person, and had told us of Alfred's purse, which no one dared to take away. Let that gentleman calculate twelve souls to a family, and he will see that each family would pay twelve cents; a sum, however insignificant to the pocket of that gentleman, that might furnish a comfortable meal to a poor family. With the gentleman from Kentucky, however, I contend that the principle is as much settled by one cent as by a million. And this observation becomes incalculably dangerous, if it is to be drawn into precedent on every new project or improper measure, that it costs but a cent a person. And as to the remarks about Alfred, I might retaliate upon the gentleman, and say, that at that day twelve cents might have been a year's salary for a judge. We have been asked, if we are afraid of having an army of judges? For myself, I am more afraid of an army of judges, under the patronage of the President, than of an army of soldiers. The former can do us more harm. They may deprive us of our liberties, if attached to the Executive, from their decisions; and from the tenure of office contended for, we cannot remove them; while the soldier, however he may act, is enlisted, or if not enlisted, only subsisted for two years; whilst the judge is enlisted for life, for his salary cannot be taken from him. [See 12th division, 8th Sect. 1st Art. Constitution.] Sir, it is said these evils will not happen. But what security have we for the truth of the declaration? Have we not seen sedition laws? Have we not heard judges crying out through the land, sedition! and asking those whose duties it was to inquire, is there no sedition here? It is true, the sedition law had expired with the last Administration, and he trusted it would not exist, or at least be acted on, under the virtuous Jefferson. But hereafter if it should exist, your judges, under the cry of sedition and political heresy, may place half your citizens in irons. I thank God, that no such law now exists, or is likely to exist. I thank God, that we are not now under the influ JANUARY, 1802. ence of an intolerant elegy, as is evident from their abuse of the Presidet; and that we are not under dread of the patroage of judges, is manifest, from their attack on he Secretary of State. And I trust, that we shalllong keep this patronage off, by not sanctioning th religious persecution of the clergy on the one had, nor the political violence of the judges on the other. But I will forbear maing any further remarks of this kind, and go in an examination of the Constitutional grounds. [Mr. J. here quoted he third article, first section of the Constitutio.] Here then, said he, are two tribunals. First, the Supreme Court, the creature of the Constitution, the creature of th people; the other, the inferior jurisdictions, thecreature of the Legislature. And notwithstanding he play of gentlemen upon the words shall and may, they are in meaning essentially different. The word shall, applied to the Supreme Court, s imperative and commanding, while the word nay, applied to the inferior courts, is discretionay, and leaves to the Legislature a volition to ac or not to act, as it sees fit. Again, why are th peculiar and exclusive powers of the SupremeCourt designated in the following section of te Constitution, but because the Constitution casidered that tribunal as absolutely established while it viewed the inferior tribunals as depenent upon the will of the Legislature? And thatthis was the case was evident from the conductof the Supreme Court on the pension act, whic that court had some time since declared unconstitutional; and which declaration, he was convinced would not have been hazarded by an inferior triunal. But does this onclusion rest on judicial power alone? Is it n where else found under other heads of Constiational power? Yes, sir, under the Legislative lead of power, which is the first grant of powermade by the Constitution. For by the eighth ection of the first article of the Constitution, aer enumerating the power of laying taxes, &c.,t is declared in the ninth division thereof, "to exend to constitute tribunals inferior to the Suprere Court." Here, then, is a Legislative power given expressly to that body, without restrictio or application to any other branch of the Natioal Government. Let those lawyers who hear me decide on the construction of all grants or deds, if two grants be made in the same deed to twdifferent powers or persons, if the first does not exlusively vest? Is there single argument that can be assigned to oppose his construction of the Constitution? Do not th observations of gentlemen, who insist upon the ermanent tenure of the Judicial office, place thecreature above its creator, man above his God. Je model above its mechanic? A good mechani, when he constructs a machine, tries it; and if i does not succeed, he either mends it or throws away. Is there not the same necessity for actig in the same way with the inferior tribunals f the Judiciary, which is no other than the mahine of the Legislature? But pon the principles of gentlemen, the law which creates a judge cannot be touched. The moment it is passed, it exists to the end of time. What is the implication of this doctrine? To alter or amend what may greatly require alteration or amendment, it is necessary to return to the creator, and to inquire what this creator is. My principle is, that the creator is the people themselves; that very people of the United States whom the gentleman from New York had declared ourselves to be the guardians of, to save the people themselves from their greatest enemies; and to save whom from destroying themselves he had invoked this House. Good God! is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia, than to have heard it uttered by an enlightened legislator of a free country, and on this floor. SENATE. the systems were acknowledged to be adapted only to present circumstances, and in the last of which the rights of Georgia were implicated. It follows, that whatever these rights may be, the system is sacred; and, as to the Mississippi Territory, if grounded on this doctrine, notwithstanding the claim of Georgia, her jurisdiction is totally lost. To revert to the sedition law. If the doctrine supported now were true, then, had the sedition law been incorporated as a system by itself, an inferior tribunal, and officers been attached to it, would it have been perpetually tacked to the Constitution? That law under which so many of our citizens have been imprisoned for writings and speakings; and one, among others, for wishing that the wadding of a gun had been lodged in a certain Presidential part. The gentleman had dwelt on the inconveniences and evils of the old system, and had particularly condemned that part of it, which, as he termed it, had converted the judges into post-boys. But Í will appeal to the gentleman, if in England, where so much more business is done, there are more than twelve judges, and whether those judges do not ride the circuit? And why shall our judges not ride the circuits? Shall we have six judges sitting here to decide cases which require a know But, said Mr. J., let us examine how we are to get at the creator. If the honorable gentleman will put us into the way of doing this with effect, I will abandon all my arguments for this motion. Look to the Constitution, and see how it is to be amended. It can only be amended on the recommendation of two-thirds of both Houses, or, on the application of two-thirds of the States, a convention shall be called, who are to propose amend-ledge of the laws, the morals, the habits, the state ments, afterwards to be ratified by three-fourths of the States. There is required first, then, two-thirds of both Houses of Congress. Can this two-thirds be found now, or is there any probability of its being found for twenty years to come, who will concur in making the necessary alterations in the Judiciary system that are now, or may hereafter, be required? On this subject there are as many opinions as there are persons on this floor. I have indeed never found two persons precisely agree. How, then, can we expect three-fourths of the Legislatures of the several States to agree when we cannot agree among ourselves. There is, in fact, no amendment which could reach the case, and exhibit to view all the requisite and necessary regulations for such an extent of country. Such an attempt must form a volume, a Constitution by itself, and after all fall short of the object. I am clearly, therefore, of opinion, that if the power to alter the Judiciary system vests not here, it vests no where. It follows, from the ideas of gentlemen, that we must submit to all the evils of the present system, though it should exhibit all the horrors of the Inquisition. of the property of the several States? Would not this knowledge be much better obtained by their riding the circuits, and in the States themselves, making themselves acquainted with whatever relates to them, and the cases of appeals to come before them? It has been remarked by a celebrated writer on the English Constitution, that one of the greatest political evils that could befall a people was the existence of large judiciary bodies. To illustrate his ideas, he had instanced the Parliaments of France. If the spirit which last session gave existence to sixteen new judges continued, who could say by what number they would be limited? They might indeed soon become, what they had been likened to, an army of judges. I do not wish to be severe in my remarks on the conduct of the late Administration. I admire the private character of Mr. Adams. But I do believe the succession of his political acts tended ultimately to accumulate in, and attach all powers to, a particular person or favorite family. If I wished to bestow on Mr. Jefferson this mass of patronage, which I contend this horde of officers bestows, I should be in favor of the bill that it is now moved to repeal; but, as a political person, I am no more for Thomas Jefferson than for John Adams. When he acts, according to my opinion, right, I will support him; when wrong, oppose him; and I trust a majority on this floor will act in the same way. But, said Mr. J., gentlemen say the United States embrace a vast extent of territory, from fifteen to seventeen thousand miles in length. What is the inevitable deduction to be drawn from this fact? Why, that a system which is to apply to this extent of country, embracing different laws and different habits, will require frequent altera- A gentleman from Massachusetts has asked if tions: whereas, if we are tied down to a system suits will go on diminishing, and if the millenium of inferior tribunals once formed, we cannot even is so near at hand? Sir, different opinions are held touch the plan of the Judicial system of the little on this subject; for some suppose the millenium District of Columbia. Nor can we touch the in- to have arrived long since, and others that it may ferior jurisdictions in the Northwestern Territo-arrive, and others again that it never would arrive; ry, or in the Mississippi Territory, in both of which but there is one thing certain, that the more courts you have, the greater temptation there is for litigation, and more suits, or rather evils, will flow from them. Law itself is but a necessary evil; for if mankind were perfect-were it not for their frailties and passions-there would be no occasion for it; and lawyers are a still greater evil, although, he acknowledged, a necessary one. They seldom discourage litigious suitors, and swarm in our courts; and there are here, as well as in every other country, persons so fond of law, and of persecution, that rather than not be in courts at all, they would direct their lawyers, as I have been formerly told of a man who applied for advice, and was informed he had no ground of action, to bring, then, a spite action. The State courts are open and competent to most of the inferior court business, and it ought to be thrown into that channel as much as possible. JANUARY, 1802. on this subject. Owing to severity of indisposition I have not been in my place, nor have I heard any of the discussion. This circumstance will be my apology, if, in the remarks I shall make, repetitions shall occur on the one hand, and apparent inattention to arguments on the other. Having been a member of this Government during several years, and being impressed with the difficulties attending the formation of a judiciary system, I have thought proper to give a concise history of Legislative proceedings on this important subject. Permit me to say, sir, that the first institution of such a system must be an experiment. It is impossible to ascertain until tried the effects of a system co-extensive with the vast territory of the United States, and which ought to be adapted to the different laws and habits of the different States. With respect to the usefulness of the additional Soon after the first law was enacted, as early as judges, created by the act of last session, it was, the year 1793, and I believe sooner, complaints perhaps, unnecessary to add anything to what had were made of the system of circuit courts. The been so ably observed by the gentleman from Ken- Union then being divided into three circuits, and tucky. But I will state, for the information of the two of the six judges were obliged to attend each Senate, that in the Southern States of Georgia, court, if one judge failed, all the business of course South and North Carolina, a ground of great liti-was continued to the next term. Judges comgation is removed, one which had originated at least two hundred and fifty suits. Miller & Co. had obtained a patent for a ginning machine (God knew where it came from, but I believe that neither of them invented it) so as to make those States tributary to them, and embroil them in disputes. South Carolina had purchased that patent for $50,000, and had therefore dried up this source of litigation in that State. The recovery of British debts, too, was nearly over. This had been a fruitful source of litigation. Our citizens had been sued, and their late hard earnings of property had been seized to satisfy British demands, whilst their former property had been taken from them by British arms during the war. I am surprised to hear the cry, that our liberties and the Constitution are endangered, from the quarter from whence it is now urged. When such remarks had been made by those gentlemen with whom I generally acted on former occasions, the instantaneous cry was against demagogues, who, by artfully inflaming the passions of the people against the Government, wished to break down the Constitution. A gentleman had talked about a victory meditated over the Constitution. Not by the President; not by us. By whom then was it meditated? Was it by the House of Representatives? Or was it by the people themselves that same people whom we were to save from their greatest enemy, themselves? For my part, I believe in the meditation of no such victory. Sooner, for my part, than participate in it, by voting for this resolution, if I thought it would have such a tendency, I would cut off my hand, or cut out my tongue. I respect and love the Constitution, and my great wish is, with father Paul, to cry out, as respects it, esto perpetua. Mr. TRACY, of Connecticut.-Feeble as I am, I have thought it my duty to offer my sentiments plained of the distance they had to travel, and suitors and lawyers complained of delays. In 1793, if my memory is correct, the law passed allowing one judge to attend with the district judge in each district, with some other modifications not important in the present view of the subject. If, by reason of distance, badness of roads, sickness, or any other accident, this one judge failed of attendance, or if he and the district judge differed on any point, a delay was occasioned. If the same judge attended the same circuit at the next term, another delay, and so on, till experience taught us, that some alteration in the system was requisite. It will be recollected, that the judges had to travel over this extensive country twice in each year, and to encounter the extremes of both heat and cold. Of this they complained; but this was not all; the business was not done. 6 6 At several sessions of Congress, the subject of the circuit courts was before them; committees were appointed in both Houses, and in more than one communication of the Executive at the commencement of sessions, a revision of the system was recommended. I cannot, on memory, detail the exact particulars, or order of time; but in the Speech made by the President at the opening of the session of 1799, the subject is stated as follows: 6 ernment, and to insure a just execution of the laws, a ' revision and amendment of the judiciary system is indispensably necessary. In this extensive country, it cannot but happen, that numerous questions respecting 'the interpretation of the laws, and the rights and du'ties of officers and citizens, must arise. On the one hand, the laws should be executed-on the other, individuals should be guarded from oppression; neither of these objects is sufficiently assured, under the pre'sent organization of the judicial department; I there'fore earnestly recommend the subject to your serious consideration." "To give due effect to the civil administration of Gov Although this subject had been recommended before, and committees had contemplated a revision and alteration of the system, I do not remember that a bill had ever been presented to either House of Congress until 1799. In that session, a bill was reported similar in its features to the act which passed last session. It might have been acted upon in the House of Representatives; of this however I am not confident; but I recollect it was printed, and the members of both Houses had it before them; and at the last session, with some alterations and amendments, it was enacted into a law. I believe all parties wished for a revision and amendment of the system, in respect to circuit courts; the difference of opinion was principally this: some supposed an increase of the judges of the Supreme Court to such a number as would render the duties of the circuit practicable for them, and provide for the completion of business, would be the best amendment; the others thought the law, as it passed, was preferable. I acknowlege, that in deliberating upon this subject, we always assumed the principle, that the establishment of courts was important to protect the rights of the people; we did not fear an army of judges, as has been hinted by the gentleman last up, (Mr. Jackson.) In this opinion we might be mistaken, but we were honest in our professions. Although some believed, that more of the business of the United States might be confided to the State courts; yet it is not within my recollection, that the question was considered in any measure a party question. I am confident, that at the session of 1799, and for a long time before that, the friends of this law, which eventually passed last Winter, could not, nor did not, contemplate any change of administration. A revision of the system was long a subject of deliberation; we believed an increase of circuit judges, to the number requisite to perform the duties, would be an inconvenient increase of the Supreme Court; and though it was desirable for the judges of the Supreme Court to see the people and be seen of them, yet the preference was given to the system now proposed to be repealed. We supposed it would be an evil to increase the number of judges of the Supreme Court to thirteen, fifteen, or seventeen. A court which is to act together, should not be numerous; on this subject all men have agreed; here may be danger of an "army of judges." as the gentleman says; for although in Great Britain the twelve judges are sometimes called to give an opinion, yet no man will feel equal confidence in a tribunal of judges for the business of a court, consisting of many as of few; from three to five, the good sense and experience of all nations has declared to be about the proper number; and we thought it conducive to the general good, to establish tribunals in such manner as to carry justice to the door of every man. In this modification of the system, the jurisdiction of the circuit court has been extended, as it respects the sum in demand, of which they are to take cognizance, and as it respects the disputes which arise concerning the title of lands; and exclusive jurisdiction is given of all crimes com SENATE. mitted within fifty miles of their place of session. The intention was, to insure a prompt execution of justice, and experiment alone can test the wisdom of the plan. I take it to be a sound rule, adopted by all wise and deliberate bodies, not to repeal an existing law, until experiment shall have discovered errors, or unless there is a vice so apparent on the face of the law, as that justice shall require an immediate destruction of it. Has there been time to gain information by experiment? No man will pretend this as a justification of the repeal; for the little time the law has been in force, so far as I have obtained any knowledge upon the subject, it has gained credit. Another maxim in legislation. I think, is correct, not to give up a law in existence, which is conversant about extensive and important concerns of the community, and about which there is a necessity of enacting some law, without seeing clearly what can be substituted for it, and that the substitute has manifest advantages. This resolution leads to no result, but a repeal. I have stated the errors of the former system of circuit courts, and if expense is an objection to the present system, as I have heard urged out of doors, the same, or nearly as much, must be incurred, if we increase the number of judges of the Supreme Court, as to effect a reform in the Circuit Court. Why repeal this law then, and leave us without any, or without any adequate to its purpose? Is this system so very vicious, that it deserves nothing but abhorrence and destruction? It costs us a little more than thirty thousand dollars, and by it the number of circuit judges is increased to sixteen; and by it likewise is contemplated reducing the number of supreme judges to five, when it can constitutionally be done. Is the expense an object, when by that expense we extend the jurisdiction of a court over this vastly extensive, growing country, and carry law and protection to every man? This country is in a singular condition; a great tract of unsettled lands is peopling with rapidity, and numerous emigrations increase our population far beyond its natural increase; is it not of importance that courts should be located among them, early, to correct the restless spirit which is frequent in new and scattered settlements? And are not the emigrations composed of such as require the prompt assistance of the law, to preserve among them regularity? Punishment, to us, and to all good men, should be a strange work; but to prevent crimes, is the work of a God. I speak to gentlemen, who have many of them graced the judge's bench, and adorned the professional robe they have worn, and am therefore not obliged to be particular that I may be understood; a word to the wise will be sufficient. A judiciary, in a national point of view, is absolutely necessary, and an extension of it to every national purpose is equally necessary. To depend upon State courts, not under obligations nor amenable to you, besides having as much business allotted to them by the respective States as they can accomplish, and depending upon them, and not on us, for existence-will require only to be mentioned, to be exploded. Locating your SENATE. Judiciary System. JANUARY, 1802. judges in various parts of the country, by them A number of courts properly located will keep promulgating the national laws, which it is well the business of any country in such condition as but known has been a subject of great difficulty, and few suits will be instituted; and courts badly orgiving them daily opportunity of mixing with peo-ganized will discourage suitors, and there will ple, not well disposed to order and law; may prevent disorders and insurrections, and save millions of expense, which pecuniary saving will be the least of the important events arising from such a system. But it will probably be said, the courts have not business to employ them; and the documents received from the Executive will be produced in evidence. And it may further be said, the President has in his Message recommended a repeal of this law. The words of the Message are: "The 'Judiciary system of the United States, and especially that portion of it lately erected, will of course 'present itself to the contemplation of Congress; ' and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from 'the several States, and now lay before Congress, an exact statement of all the causes decided since 'the first establishment of the courts, and of those 'that were depending when additional courts and 'judges were brought in to their aid." be but few actions returned. From the number of suits alone, there can no sound judgment be formed. But there is another objection to the repeal of the judiciary law, which in my mind is conclusive: I mean the letter and spirit of the Constitution. In the formation of every Government, in which the people have a share in its administration, some established and indisputable principles must be adopted. In our Government, the formation of a Legislative, Executive and Judiciary power, is one of the incontrovertible principles; and that each should be independent of the other, so far as human frailty will permit, is equally incontrovertible. Will it be expected, that I should quote Sidney, De Lolme, Montesquieu, and a host of elementary writers, to prove this assertion? There is probably no conflict of opinion upon this subject. When we look into our Constitution of Government, we shall find, in every part of it, a close and undeviating attention to this principle. Our particular form is singular in its requirements, that full force and operation be given to this all important principle. Our powers are limited, many acts of sovereignty are prohibited to the National Government, and retained by the States, and many restraints are imposed upon State sovereignty. If either, by accident or design, should exceed its powers, there is the utmost necessity that some timely checks, equal to every exigency, should be interposed. The Judiciary is established by the Constitution for that valuable purpose. Is this a recommendation to repeal? Suppose for argument's sake it is. Let us look at this "exact" statement. In the recapitulation, 19th page of document 8, there appears to have been instituted 8,276 suits, and pending, when this court went into operation, 1,539. But on further inspection it will be found, that Maryland is entirely omitted; this omission is unaccountable, since the means of knowledge were so near at hand.119 causes undecided in Tennessee; 134 in North Carolina, and 331 in Virginia, are omitted; making in the whole an error of five or six hundred In the British Government, the legislature is causes. In addition to this, the number of suits omnipotent to every legislative effect, and is a perin New York are not stated correctly by the state-petual convention for almost every Constitutional ment of the attorney when he made the return, purpose. Hence it is easy to discern the different and not one is carried out as pending in the reca part which must be assigned to the judiciary in pitulation; and the return of Massachusetts is in- the two kinds of government. In England the correct on its face; so that nothing more than con- Executive has the most extensive powers; the jecture can be derived from this "exact" state- sword or the military force; the right of making ment. The President is usually more correct, war, and in effect the command of all the wealth and how this peremptory language in the Message of the nation, with an unqualified veto to every comports with the document, every man can see legislative act. It is, therefore, rational for that for himself. I am not disposed to attribute inten- nation to preserve their judiciary completely intional error to any man, much less to the Ex-dependent of their Sovereign. In the United ecutive; but in point of use the statement amounts to nothing; we may just as well imagine without it as with it, how many suits were pending at the institution of the new courts. But I acknowledge that the number of suits pending is not in my mind any criterion upon which a correct judgment may be formed of the utility or necessity of courts; or, to say the most of it, it forms but one ground of judging, and that not a very conclusive one. In a country thinly settled it is frequently as important to establish courts as in a more populous country; and as this Government is situated, it may be more so; and yet the number of suits will bear no proportion. Why did we establish courts in our territorial government but on this principle? States, the caution must be applied to the existing danger; the Judiciary are to be a check on the Executive, but most emphatically to the Legislature of the Union, and those of the several States. What security is there to an individual, if the Legislature of the Union or any particular State, should pass a law, making any of his transactions criminal which took place anterior to the date of the law? None in the world but by an appeal to the Judiciary of the United States, where he will obtain a decision that the law itself is unconstitutional and void, or by a resort to revolutionary principles, and exciting a civil war, With a view to those principles, and knowing that the framers of our Constitution were fully possessed of them, let us examine the instrument itself. Article third, |