twenty-seventh section, as well as in that part which relates to the judges of Tennessee and Kentucky before alluded to. As to the right of repealing, I cannot hesitate, because I believe this Congress possesses equal power with the former, and that the power of making and repealing laws is at all times vested in the Legislature. If this be not the case, we lose the benefit of experience, the only faithful guide to human concerns. Most of our statutes are experimentally adopted, and when we find that they operate disadvantageously, we doubtless have the power of repealing. The Constitution in giving power to Congress says, they shall have power to "provide for the common defence and general welfare of the United States." In another place it says, "Congress shall have power to make all laws which shall be necessary and proper to carry into effect the foregoing powers." Those powers are to provide for the general welfare. Now we think, to provide for the general welfare, we ought to make a law declaring the late Judiciary law repealed. Again, it has often been said, that our Government depends very much on the opinion of the people. This Government is divided into three distinct departments. A late ruling party, finding their power about to be wrested from their hands by the people who elect the Representatives and the State who elect the Senators, in the last moments of power passes a law by which they completely take hold of one entire branch of our Government, and fill it with men whose politics are at war with the people. There a majority does not rule; the minority in defiance of the majority hold one branch. I ask, if this is compatible with general opinion or the settled principles of our Government? The honorable member from Pennsylvania, (Mr. HEMPHILL,) in his argument, puts me in mind of the boy who fights his shadow; he raised arguments for us, and then combatted them; the man who runs by himself is sure to win, so the gentleman was sure to triumph, because he took for us the weakest ground, and for himself the strongest. Those who read his speech will suppose the arguments he combatted had been advanced on this floor; but the fact is otherwise; he was the third who spoke, and all who hear me know that the ground he took and called ours, was not occupied by any of us. Is this a fair and candid manner of acting? He tells us that besides the judiciary laws there are other laws that Congress cannot repeal; that a State is admitted into the Union by law, and that there is no power can repeal that law; that a man is admitted to citizenship by law, and no repeal of that law can affect the citizen. The reason is obvious. If a law admits a State into the Union, and the State comes in according to the provisions of the law, the law having had its effect, having discharged its functions, it becomes dead and cannot be repealed. But if Congress should now say the Northwest Territory should, in the year 1806, be admitted into the Union as a State, at any time before the law takes effect the repeal is in the power of Congress. The same may be said as to citizenship. I found my opinion of the expedi

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ency of repealing the Judiciary law, on another reason in addition to that of the courts being unnecessary; I mean the power they declare they have, in the language of Judge Patterson, to "de-clare a law null and void." Never can I subscribe to that opinion. Never can I believe theJudiciary paramount to both branches of the Legislature; if it is, I have yet to learn it: there is an end to legislation; a knave or a fool can make void your best and most wholesome laws. In the present state of things, how will it affect us? The minority possessing one department of Govern-ment, completely frustrates the views of the other two, and governs the nation against the will of the people and the Legislative and Executive power. I am willing to admit the Judiciary to be coordinate with the Legislature in this respect, to wit, that judges thinking a law unconstitutional are not bound to execute it; but not to declare it null and void. That power rests alone with the Legislature. But we are told this Judiciary is necessary to check this House and the Senate, and to protect the people against their worst enemies. This is saying to the people, you are incapable of governing yourselves, your representatives are incapable of doing it; in the Judiciary alone you find a safe deposit for your liberties; and saying also, that the Judiciary is the vitals of the nation, wherein all power, all safety dwells; that the Legislature is subordinate thereto and a mere nominal thing, a shadow without substance, its acts perfectly within the control of the Judiciary. I tremble at such ideas. The sooner we put men out of power, who we find determined to act in this manner, the better; by doing so we preserve the power of the Legislature, and save our nation from the ravages of an uncontrolled Judiciary.

Mr. BACON. In this bill two important inquiries are involved.

1. Is it consistent with the Constitution? 2. Is it expedient to repeal those acts?

Before I proceed to speak directly to either of these questions, I must take the liberty to advert to an important observation made yesterday by the gentleman from Pennsylvania, (Mr. HEMPHILL.) In his very decent and ingenious speech with which he then favored the Committee, he gave an explanation of the terms office and court. Indeed very much depends, as I. conceive, on fixing accurate ideas to those particular terms. Until this is done, that part of the Constitution which applies to the present subject, must remain in a great measure unintelligible, to me at least. Fixing the true meaning of these terms, will, I conceive, go far towards solving any doubt that may exist relative to the constitutionalty of the present bill. This idea, there is reason to believe, did not escape the discerning mind of that worthy gentleman, when he observed, that "office consists in certain power, jurisdiction and authority, conferred on a person, requiring certain duties. The court, the name of the institution, wherein that office is to be exercised. The name of the court may be changed, and also the place where first holden, ' and the office be exercised in another place."

question, ipso facto abolished. If the circuit courts, established by the law in question, are Constitutional courts, as I take for granted they are, then the former circuit courts do not now exist. And what has become of them? They have been annihilated. By what power have they been annihilated? The answer is ready. They have been annihilated by the same power which first gave them existence, and on the same likewise on which the present circuit courts now depend for their continuance in existence. If, as some gentlemen contend, it is a violation of the Constitution for the Legislature to abolish a judicial court, the law itself which it is in contemplation to repeal, must be an unconstitutional law. And I should not suppose it to be a violation of the Constitution for the Legislature to repeal an unconstitutional law.

The act in question, by which the late circuit courts were abolished, and the present circuit courts established, either is, or is not, a Constitutional act. If it is a Constitutional act, then it was not a violation of the Constitution for the last Congress to pass it. And if it was not a violation of the Constitution for the last Congress to pass the act by which they abolished the circuit courts which then were, and established those which now are, it cannot be any more a violation of the Constitution for the present Congress, by repealing that act, to abolish the circuit courts which now are, and to establish new ones. If, on the contrary, the act in question is an unconstitutional act, I should suppose that of itself was a sufficient reason for repealing it; and that the Constitution, instead of forbidding, demands a repeal of it. So that, whether it is or is not a Constitutional act, the result must be the same; to repeal it cannot be a violation of the Consti

tution.

I am not disposed to play upon terms, nor would I knowingly descend to a strain of mere metaphysical quibbling on this serious and important subject. I may be mistaken, but I feel as if the argument was not only rational, but absolutely conclusive. If it is fallacious, let it be fairly met, and the fallacy will easily be detected. The sentiments which I now express are not the cursory thoughts of a moment, which have occurred on the spur of the occasion. Whether right or wrong, they are the result of serious and mature reflection. If they are not sound, if they are not salutary, if they are not predicated on those principles of the Constitution which are to be considered as immoveable by any authority short of that by which they were first established, let them be rejected with all that abhorrence which the tongue of man can express, or the human mind conceive. For, I readily admit that the effects resulting from a violation of the Constitution by the Legislature are not less, but, if possible, infinitely more to be dreaded than what any gentleman has described.

Questions of this nature, sir, are not to be determined by mere popular declamation, by a flood of metaphors, nor yet by the less attractive force of opprobrious terms. It is ardently to be desired

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that nothing of this kind may ever be suffered to tarnish the deliberations of this House. The subject before us is such as merits the most impartial, candid, firm, and liberal attention. And such, Í hope, it will receive. Admitting that the law in question was passed "in a gust of passion"-"at a midnight hour"-and even with views hostile to the equal rights of a free people-still it ought to be met, if met at all, on principles directly the reverse of all these. Otherwise, the remedy applied may prove to be infinitely worse than the disorder itself of which we complain.

It ought, I think, to be agreed by all, that the judges both of the supreme and of "such inferior courts as Congress may from time to time ordain and establish," shall hold their offices during good behaviour; because this is expressly provided for in the Constitution. But, sir, I conceive that, to abolish an office, and to remove an officer from an office while that office exists, are, in the meaning of the Constitution, as well as in common speech, distinct acts, however one of these acts may affect the other. To justify a distinction of this kind, I need only to refer again to the act proposed to be repealed. Is that an act for removing from office a number of judges who, by the Constitution, are entitled to hold their offices during good behaviour? If it is, I will agree with gentlemen on the other side, that it is an unconstitutional act. And I shall expect that, for this reason alone, if there was no other, they will agree with me, that it ought to be repealed. And not only so, but that it is the indispensable duty of the Legislature to repeal it, and to restore those courts which have been thus wantonly abolished, together with the judges who have been thus unconstitutionally removed from office. Even without the aid of the act in question, I believe the distinction between removing an officer and abolishing an office will be found to be a real and ob

vious one.

Congress are undoubtedly vested with Constitutional power to repeal the act for laying and collecting internal taxes; and in doing this, to abolish- all the offices that have been instituted for that purpose. But it will not be pretended that Congress have power, by a Legislative act, either to appoint to, or remove from office, a single officer in that department. A power then to abolish an office, and a power to remove an officer from office are in their nature distinct powers. Admitting therefore, as I really do, that Congress are not, in the meaning of the Constitution, vested with power to remove an officer from office, (whether Judiciary or Executive it matters not,) it will by no means follow that they have not power to repeal the law instituting that office. Should a resolution be brought forward for repealing the law laying duties of excise on stills, &c., would any gentleman who might be opposed to such a resolution, venture to ground his opposition on the unconstitutionality of the measure from this consideration, that it would in effect abolish three-fourths of the offices in the revenue department of the Government, and in this indirect way deprive a host of officers of the offices which the Constitution has

placed as much without the power and control of the Legislature, as it has those of the Judiciary department? Sir, I believe not. The argument, however, would be neither more nor less conclusive in one case than in the other. It is urged, within doors and without, that to repeal the law would be no other than an indirect way of removing judicial officers from office, and of destroying that legal tenure by which they hold their offices. This argument, if such it may be called, and if I understand it, takes for granted the principal if not the only matter in dispute, viz: that every Judicial officer has such a tenure in his office, as puts the office itself entirely beyond the power and influence of the Legislature; so that when the Legislature have, by their own Legislative act, once instituted such an office, they can never afterwards abolish or touch that office without violating the Constitution under which they act. This, sir, is a doctrine abhorrent from the principles of all free governments; it is abhorrent from what has been demonstrated, as I conceive, to be consonant to the principles of the Constitution of the United States; it is abhorrent from the sense and uniform practice of the Legislature, ever since our Government was established; it is more especially abhorrent from the express provisions of the act itself, the repeal of which is now in contemplation.

But, sir, permit me to ask, what would be the consequence of adopting the sentiment of our opponents? Would not this be a cunning and indirect way of tying up the hands of the Legislature, and of restricting that body in the exercise of those powers which the Constitution has vested them with for the safety and welfare of the community at large? Would it not be a cunning and indirect way of fixing an immoveable and intolerable burden on the honest and industrious citizens of the United States, for the private emolument of court favorites, and idle sycophants, and useless drones? And would conduct like this in representatives evince a becoming and sacred regard to the spirit of the Constitution, and to the trust reposed in them by their constituents? Or, would it not rather furnish a melancholy instance of the betrayment of both? Let candor, let common sense, let solid learning, let sound policy, decide these solemn queries.

A decision grounded on all, or on any one of these principles, is such as we wish to abide. And I mean not to suggest a doubt but that our opponents are equally disposed to abide the same impartial test. By what I have now said, I mean no more than to express that clear conviction which exists in my own mind, that the principle for which our opponents contend has a natural and direct tendency to such a state of things as I have mentioned, however pure their views may be who contend for it.

Whether the judges will be entitled to retain their offices and to receive their salaries, provided the act should be repealed, is, as I conceive, a question entirely distinct from that which is now before the Committee. It may perhaps hereafter be made a question, either before the Legislature, or before a judicial court. Whenever this shall hap

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pen, then will be the proper time to consider it. If from a fair and candid examination of the subject it appears, as I think it does, that there is nothing in the Constitution which in the least degree militates against the repeal of the acts, then the only question which remains to be considered is, whether it is expedient to repeal them.

With respect to this question, I will not go into a minute discussion of it. I will only observe, in general, that from the documents which we are furnished with, and from the present situation and state of the nation in general, it does not appear necessary to retain all the courts which by that law have been constituted. It does not appear but that, to say the least, the business of these courts may be transacted equally well by a less number. And as it is in itself not only imprudent, but unjust, to lay unnecessary burdens on our constituents for the private advantage of individuals; as this would have a natural and most direct tendency to weaken the Government, by destroying the confidence of the citizens in it, and alienating their affections from it, I am, for myself, fully convinced that these laws ought to be repealed, and, with my present views of the subject, I shall give my vote accordingly; although, I confess, I am not entirely satisfied with the act proposed to be revived. And I will here take occasion to say, I should, for myself, wish to add two or three more judges to the Supreme Court, and to strike out of that act the sum of five hundred dollars, and insert a much larger sum. Perhaps something like this may take place, either as an amendment to the present bill, or at some future day. If such an amendment might be obtained, I should be much better pleased with it than I am at present.

Mr. T. MORRIS, of New York.-I did flatter myself when the honorable gentleman from Virginia (Mr. THOMPSON) detailed to this Committee the mode of administering justice in the State which he represents, that he would also have added what the decisions and opinions of the courts of that State have been, on questions analogous to those which we are called upon to decide. But, sir, since that honorable gentleman has thought proper to refer to his own State as far only as arguments drawn from thence could answer his purpose, and has not communicated information which might have been adduced from the same quarter, and much more applicable to the present question, I hope that it will not be deemed presumptuous in me to do it. There is not, sir, a State in the Union where the independence of the judiciary has been more highly valued than in Virginia. There is no part of America where a commission during good behaviour has been construed to confer a more independent official tenure on a judge than in the State to which I have alluded. The construction, sir, which my friends and myself are now contending for, is more fully and completely established by the opinions and decisions of the Virginia judges than it is by those of any other part of the Union. And, sir, if I am entitled to form an opinion from the evidence I hold in my hand of the decisions which have at different times been made by the judges of that State, if I

Mr. MORRIS then read the following extracts: "The Constitution of Virginia declares, that both Houses of Assembly shall, by joint ballot, appoint judges of the supreme court of appeals, and general court, judges in chancery, judges of admiralty, secretary and attorney general, to be commissioned by the Governor, and continue in office during good behaviour.' "The supreme court of appeals in Virginia consisted of the judges of the court of chancery, general court, and court of admiralty, who were by law declared to constitute a court of appeals. The Legislature found the system inconvenient, and determined to change it.

"In 1787 this subject was taken up by the Legislature; a system of circuit courts was adopted, and it was enacted, that the judges of the court of appeals should perform the duty of circuit judges. This law the judges refused to execute as unconstitutional, and agreed unanimously (Edmund Pendleton, George Wythe, John Blair, Paul Carrington, Peter Lyons, William Fleming, Henry Tazewell, Richard Cary, James Henry, and John Tyler, being present,) on a remonstrance, from which will be extracted such parts as are deemed applicable to the present inquiry."

"In deciding the act, the judges declare that the Constitution and the act are in opposition, and cannot exist together; and that the former must control the operation of the latter."

"The propriety and necessity of the independence of the judges is evident in reason and the nature of the office; since they are to decide between government and the people, as well as between contending citizens; and if they be dependent on either, corrupt influence may be apprehended, sacrificing the innocent to popular prejudice, and subjecting the poor to oppression and persecution by the rich: and this applies more forcibly to exclude dependence on the Legislature, a branch of which, in cases of impeachment, is itself a party."

"The people, continues the Court of Appeals, have, in their form of government, declared that the judges should hold their offices during good behaviour.' Their dependence would have been rendered complete by fixing the quantum of their salaries."

"On a subsequent occasion a contest, not very different in principle, arose, in the same State, between the Legislative and Judicial Departments, in which the point in controversy was again yielded by the Legislature."

"In 1794 it was enacted that the judges of the dis

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trict courts, who are also judges of the general court, should so far exercise chancery jurisdiction as to grant injunctions to their own judgments, and decree finally, in cases of an equitable nature, which originated by way of injunction.

"It will be recollected, that by the Constitution of Virginia, the two Houses of Assembly, by joint ballot appoint judges of the supreme court of appeals and general court, judges in chancery,' &c.

"Under the act just stated, an application was made to the district court at Dumfries for an injunction, which was referred to the general court, and, on solemn conthat the law was unconstitutional. In giving their sideration, was unanimously rejected, on the principle opinions, some of the judges stated reasons entirely applicable to the subject we are now considering.

"Judge Roane observed, Though a judge is interested privately in preserving his independence, yet it is the right of the people which should govern him; who, in their sovereign character, have provided that the judges should be independent: so that, in fact, it is a controversy between the Legislature and the people, though perhaps the judges may be privately interested.

"If there can be judges in chancery, who have, on commission, during good behaviour, their tenure in office is absolutely at the will of the Legislature, and they consequently are not independent. The people of Virginia intended that the Judiciary should be independent of the other departments. They are to judge where the Legislature is a party, and therefore should be independent of it; otherwise they might judge corruptly in order to please the Legislature, and be consequently continued in office. It is an acknowledged principle in all countries that no man shall be judge in his own cause; but it is nearly the same thing where the tribunal of justice is under the influence of a party. If the Legislature can transfer from Constitutional to Legislative courts, all judicial powers, these dependent tribunals, being the creatures of the Legislature itself, will not dare to oppose an unconstitutional law."

"Judge Tyler.-The Constitution says, that 'judges in chancery shall be appointed by joint ballot of both Houses of Assembly, and commissioned by the Governor during good behaviour;' and for the most valuable purpose-to secure the independence of the Judiciary.' Contrary to this express direction, which admits of no doubt, implication, or nice construction, that bane to political freedom, the Legislature, has made the appointment by an act mandatory to the judges, leaving them not at liberty to accept or refuse the office conferred, which is a right every citizen enjoys in every other case; a right too sacred to be yielded to any power on earth; but were I willing to do it, as relates to myself, as a judge I ought not, because it would frustrate that important object beforementioned, intended by the Constitution to be kept sacred, for the wisest and best of purposes: to wit, that justice and the law be done to all manner of persons, without fear or reward. For how would the right of individuals stand when brought in contest with the public, or even an influential character, if the judges may be removed from office by the same power which appointed them, to wit, by a statute appointment, as in this case, and by a statute disappointment, as was the case in the courts of appeals? Might not danger be apprehended from this source when future times shall be more cor-rupt?" "Let me now compare the law with the Constitution in another point; that of the want of a commission during good behaviour, and the reasons wilk