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Congressional Proceedings - Lance Banning, Liberty and Order: The First American Party Struggle 
Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).
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The Senate Friday, 8 January 1802
Agreeably to the order of the day, the Senate proceeded to the consideration of the motion made on the 6th instant, to wit:
That the act of Congress passed on the 13th day of February, 1801, entitled “An act to provide for the more convenient organization of the Courts of the United States,” ought to be repealed.
Mr. Breckinridge then rose and addressed the President, as follows:
It will be expected of me, I presume, sir, as I introduced the resolution now under consideration, to assign my reasons for wishing a repeal of this law. This I shall do; and shall endeavor to show,
1. That the law is unnecessary and improper, and was so at its passage; and
2. That the courts and judges created by it can and ought to be abolished.
1st. That the act under consideration was unnecessary and improper is, to my mind, no difficult task to prove. No increase of courts or judges could be necessary or justifiable unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them. To hold out a show of litigation, when in fact little exists, must be impolitic; and to multiply expensive systems and create hosts of expensive officers, without having experienced an actual necessity for them, must be a wanton waste of the public treasure.
The [executive] document before us shows that, at the passage of this act, the existing courts, not only from their number, but from the suits depending before them, were fully competent to a speedy decision of those suits. It shows that on the 15th day of June last, there were depending in all the circuit courts (that of Maryland only excepted, whose docket we have not been furnished with) one thousand five hundred and thirty-nine suits. It shows that eight thousand two hundred and seventy-six suits of every description have come before those courts in ten years and upwards. From this it appears that the annual average amount of suits has been about eight hundred.
But sundry contingent things have conspired to swell the circuit court dockets. In Maryland, Virginia, and in all the Southern and Southwestern States, a great number of suits have been brought by British creditors; this species of controversy is nearly at an end.
In Pennsylvania, the docket has been swelled by prosecutions in consequence of the Western insurrection, by the disturbances in Bucks and Northampton Counties; and by the Sedition Act. These I find amount in that state to two hundred and forty suits… .
In most of the states there have been prosecutions under the Sedition Act. This source of litigation is, I trust, forever dried up. And, lastly, in all the states a number of suits have arisen under the excise law; which source of controversy will, I hope, before this session terminates, be also dried up.
But this same document discloses another important fact; which is, that notwithstanding all these untoward and temporary sources of federal adjudication, the suits in those courts are decreasing; for, from the dockets exhibited (except Kentucky and Tennessee, whose suits are summed up in the aggregate) it appears that in 1799 there were one thousand two hundred and seventy-four and in 1800 there were six hundred and eighty-seven suits commenced; showing a decrease of five hundred and eighty-seven suits.
Could it be necessary then to increase courts when suits were decreasing? Could it be necessary to multiply judges when their duties were diminishing? And will I not be justified, therefore, in affirming that the law was unnecessary and that Congress acted under a mistaken impression when they multiplied courts and judges at a time when litigation was actually decreasing?
But, sir, the decrease of business goes a small way in fixing my opinion on this subject. I am inclined to think that, so far from there having been a necessity at this time for an increase of courts and judges, that the time never will arrive when America will stand in need of thirty-eight federal judges. Look, sir, at your Constitution, and see the judicial power there consigned to federal courts, and seriously ask yourself, can there be fairly extracted from those powers subjects of litigation sufficient for six supreme and thirty-two inferior court judges? To me it appears impossible… .
I will now inquire into the power of Congress to put down these additional courts and judges.
First, as to the courts, Congress are empowered by the Constitution “from time to time, to ordain and establish inferior courts.” The act now under consideration is a legislative construction of this clause in the Constitution, that Congress may abolish as well as create these judicial officers; because it does expressly, in the twenty-seventh section of the act, abolish the then existing inferior courts for the purpose of making way for the present. This construction, I contend, is correct; but it is equally pertinent to my object, whether it be or be not. If it be correct, then the present inferior courts may be abolished as constitutionally as the last; if it be not, then the law for abolishing the former courts and establishing the present was unconstitutional and consequently repealable.
But independent of this legislative construction, on which I do not found my opinion, nor mean to rely my argument, there is little doubt indeed, in my mind, as to the power of Congress on this law. The first section of the third article vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress may, from time to time, ordain and establish. By this clause Congress may, from time to time, establish inferior courts; but it is clearly a discretionary power, and they may not establish them. … It would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although Congress may, from time to time, establish inferior courts, yet, when established, that they shall not be abolished by a subsequent Congress possessing equal powers. It would be a paradox in legislation.
2d. As to the judges. … [T]he Constitution affords the proper checks to secure their honesty and independence in office. It declares they shall not be removed from office during good behavior; nor their salaries diminished during their continuance in office. From this it results that a judge, after his appointment, is totally out of the power of the President and his salary secured against legislative diminution during his continuance in office… .
But because the Constitution declares that a judge shall hold his office during good behavior, can it be tortured to mean that he shall hold his office after it is abolished? Can it mean that his tenure should be limited by behaving well in an office which did not exist? Can it mean that an office may exist although its duties are extinct? Can it mean, in short, that the shadow, to wit, the judge, can remain, when the substance, to wit, the office, is removed? It must have intended all these absurdities or it must admit a construction which will avoid them… .
… It is a principle of our Constitution, as well as of common honesty, that no man shall receive public money but in consideration of public services. Sinecure offices, therefore, are not permitted by our laws or Constitution… .
Upon the whole, sir, as all courts under any free government must be created with an eye to the administration of justice only; and not with any regard to the advancement or emolument of individual men; as we have undeniable evidence before us that the creation of the courts now under consideration was totally unnecessary; and as no government can, I apprehend, seriously deny that this Legislature has a right to repeal a law enacted by a preceding one, we will, in any event, discharge our duty by repealing this law; and thereby doing all in our power to correct the evil… .
Mr. Morris, of New York.—Mr. President, I am so very unfortunate that the arguments in favor of the motion have confirmed my opinion that the law to which it refers ought not to be repealed. The honorable mover has rested his proposition on two grounds:
1st. That the Judiciary Law passed last session is unnecessary; and
2dly. That we have a right to repeal it and ought to exercise that right.
The numerical mode of argument made use of to establish his first point is perfectly novel, and commands my tribute of admiration. This is the first time I ever heard the utility of the courts of justice estimated by the number of suits carried before them… .
The expense arising under this law, that it is proposed to repeal, amounts to thirty thousand dollars, exclusive of fifteen thousand dollars estimated for contingent expenses, making, together, forty-five thousand dollars. But let us not stint that allowance; throw in a few thousand more, and let the whole be stated at fifty thousand; apportion this sum among the people of the United States, according to the census lately taken, and you will find that each individual will pay just one cent. And for this insignificant saving of a cent a man, we are called upon to give up all that is valuable to a nation… .
Gentlemen say, recur to the ancient system. What is the ancient system? Six judges of the Supreme Court to ride the circuit of America twice a year and sit twice a year at the seat of government. … Cast an eye over the extent of our country, and a moment’s consideration will show that the First Magistrate, in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy. … I have been told by men of eminence on the bench, that they could not hold their offices under the old arrangement.
What is the present system? You have added to the old judges seven district and sixteen circuit judges. What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be that the check established by the Constitution, wished for by the people, and necessary in every contemplation of common sense, is destroyed. … Did the people of America vest all powers in the Legislature? No; they had vested in the judges a check intended to be efficient—a check of the first necessity, to prevent an invasion of the Constitution by unconstitutional laws—a check which might prevent any faction from intimidating or annihilating the tribunals themselves.
On this ground, said Mr. Morris, I stand to arrest the victory meditated over the Constitution of my country; a victory meditated by those who wish to prostrate that Constitution for the furtherance of their own ambitious views. Not of him who had recommended this measure, nor of those who now urge it; for, on his uprightness and their uprightness, I have the fullest reliance; but of those in the back-ground who have further and higher objects. These troops that protect the outworks are to be first dismissed. Those posts which present the strongest barriers are first to be taken, and then the Constitution becomes an easy prey… .
Tuesday, 12 January 1802
Mr. Tracy, of Connecticut.—Feeble as I am, I have thought it my duty to offer my sentiments 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… .
Soon after the first law was enacted, as early as the year 1793, and I believe sooner, complaints were made of the system of circuit courts. … 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… .
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… .
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… .
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… .
… The great object of the independence of the Judiciary must here have reference not only to our Executive, but our Legislature. The Legislature with us is the fountain of power. No person will say that the judges of the Supreme Court can be removed, unless by impeachment and conviction of misbehavior; but the judges of the inferior courts, as soon as ordained and established, are placed upon precisely the same grounds of independence with the judges of the Supreme Court. Congress may take their own time to ordain and establish, but the instant that is done, all the rights of independence attach to them.
If this reasoning is correct, can you repeal a law establishing an inferior court under the Constitution? Will it be said that although you cannot remove the judge from office, yet you can remove his office from him? Is murder prohibited, and may you shut a man up and deprive him of sustenance till he dies, and this not be denominated murder? The danger in our Government is, and always will be, that the Legislative body will become restive and perhaps unintentionally break down the barriers of our Constitution. It is incidental to man, and a part of our imperfections, to believe that power may be safely lodged in our hands. We have the wealth of the nation at command and are invested with almost irresistible strength; the judiciary has neither force nor wealth to protect itself. That we can, with propriety, modify our judiciary system so that we always leave the judges independent is a correct and reasonable position; but if we can, by repealing a law, remove them, they are in the worst state of dependence… .
I am strongly impressed with the magnitude of this subject; perhaps the whims of a sick man’s fancy have too much possessed me to view it correctly; but, sir, I apprehend the repeal of this law will involve in it the total destruction of our Constitution. It is supported by three independent pillars: the Legislative, Executive, and Judiciary; and if any rude hand should pluck either of them away, the beautiful fabric must tumble into ruins. The Judiciary is the center pillar, and a support to each by checking both; on the one side is the sword and on the other is the wealth of the nation; and it has no inherent capacity to defend itself… .
This Constitution is an invaluable inheritance; if we make inroads upon it and destroy it, no matter with what intentions, it cannot be replaced; we shall never have another… .
The House of Representatives Thursday, 18 February 1802
Mr. Giles said that … it must be obvious to the most common observer that, from the commencement of the Government of the United States, and perhaps before it, a difference of opinion existed among the citizens. … On one side, it was contended that in the organization of the Constitution a due apportionment of authority had not been made among the several departments; that the legislature was too powerful for the executive department; and to create and preserve a proper equipoise, it was necessary to infuse in the executive department, by legislation, all artificial powers compatible with the Constitution, upon which the most diffusive construction was given; or, in other words, to place in executive hands all the patronage it was possible to create, for the purpose of protecting the President against the full force of his constitutional responsibility to the people. On the other side, it was contended that the doctrine of patronage was repugnant to the opinions and feelings of the people; that it was unnecessary, expensive, and oppressive; and that the highest energy the government could possess would flow from the confidence of the mass of the people, founded upon their own sense of their common interests. Hence, what is called party in the United States grew up from a division of opinion respecting these two great characteristic principles. … A variety of circumstances existed in the United States at the commencement of the government, and a great number of favorable incidents continued afterwards to arise, which gave the patronage system the preponderancy during the first three presidential terms of election; notwithstanding it was evident that the system was adopted and pursued in direct hostility to the feelings and opinions of a great portion of the American people. The government was ushered into operation under a vast excitement of federal fervor, flowing from its recent triumph on the question of adopting the Constitution. At that time a considerable debt was afloat in the United States, which had grown out of the Revolutionary War. This debt was of two kinds: the debt proper of the United States, or engagements made by the United States in their federal capacity; the other, the state debts, or engagements entered into by the respective states for the support of the common cause.
The favorers of the patronage system readily availed themselves of these materials for erecting a moneyed interest; gave to it a stability, or qualified perpetuity, and calculated upon its certain support in all their measures of irresponsibility.
This was done not only by funding the debt proper of the United States, but by assuming the payment of the state debts and funding them also; and it is believed, extending the assumption beyond the actual engagements of the states. Hence the Federal axiom, that a public debt is a public blessing. Shortly after this event, an Indian war sprang up—he would not say by what means—in consequence of which an army was added to the list of patronage. The Algerines commenced a predatory war upon the commerce of the United States, and thence a navy formed a new item of patronage. Taxes became necessary to meet the expenses of this system, and an arrangement of internal taxes, an excise, &c., still swelled the list of patronage. But the circumstance which most favored this system was the breaking out of a tremendous and unprecedented war in those countries of Europe with which the United States had the most intimate relations. The feelings and sympathies of the people of the United States were so strongly attracted by the tremendous scenes existing there that they considered their own internal concerns in a secondary point of view. After a variable conduct had been pursued by the United States in relation to these events, the depredations committed upon commerce and the excitements produced thereby enabled the Administration to indulge themselves in a more decisive course, and they at once pushed forward the people to the X, Y, Z of their political alphabet, before they had well learned and understood the A, B, C of the principles of the Administration.
Armies and navies were raised, and a variety of other schemes of expense were adopted, which placed the Administration in the embarrassing predicament either to violate their faith with their public creditors or to resort to new taxes. The latter alternative was preferred, accompanied with other strong coercive measures to enforce obedience. A land tax was laid for two millions of dollars. This measure awakened the people to a sense of their situation; and shook to the foundation all those federal ramparts which had been planned with so much ingenuity and erected around the executive with so much expense and labor. Another circumstance peculiarly favorable to the advocates of executive patronage was that, during the two first presidential terms, the Chief Executive Magistrate possessed a greater degree of popularity and the confidence of the people than ever was or perhaps will ever be again attached to the person occupying that dignified station. The general disquietude which manifested itself in consequence of these enterprising measures, in the year 1800, induced the Federal party to apprehend that they had pushed their principles too far, and they began to entertain doubts of the result of the presidential election, which was approaching. In this state of things, it was natural for them to look out for some department of the government in which they could entrench themselves in the event of an unsuccessful issue in the election and continue to support those favorite principles of irresponsibility which they could never consent to abandon.
The Judiciary department, of course, presented itself as best fitted for their object, not only because it was already filled with men who had manifested the most indecorous zeal in favor of their principles, but because they held their offices by indefinite tenures and of course were further removed from any responsibility to the people than either of the other departments. Accordingly, on the 11th of March 1800, a bill for the more convenient organization of the courts of the United States was presented to the House of Representatives. This bill appears to have had for its objects, First, the gradual demolition of the state courts, by increasing the number and extending the jurisdiction of the federal courts. Second, to afford additional protection to the principles of the then existing Administration by creating a new corps of judges of concurring political opinions. … At the next session, after the result of the late election was ascertained, the bill, after having undergone some considerable alterations, was passed into the law now under discussion. This law, it is now said, is inviolable and irrepealable. It is said, the independence of the judge will be thereby immolated. … We are now called upon to rally round the Constitution as the ark of our political safety. Gentlemen, discarding all generalizing expressions and the spirit of the instrument, tie down all construction to the strict letter of the Constitution. He said, it gave him great pleasure to meet gentlemen on this ground; and the more so, because he had long been in the habit of hearing very different language from the same gentlemen. He had long been in the habit of hearing the same gentlemen speak of the expressions of “the common defense and the general welfare” as the only valuable part of the Constitution; that they were sufficient to obliterate all specifications and limitations of power. … But, he said, as if it was always the unfortunate destiny of these gentlemen to be upon extremes, they have now got round to the opposite extreme point of the political compass, and even beyond it. For, he said, they not only tie down all construction to the letter of the instrument, but they tell us that they see and call upon us also to see written therein, in large capital characters, “the independence of judges”; which, to the extent they carry the meaning of the term, is neither to be found in the letter or spirit of that instrument, or in any other political establishment, he believed, under the sun… .
Friday, 19 February 1802
Mr. Bayard.—Mr. Chairman, I must be allowed to express my surprise at the course pursued by the honorable gentleman from Virginia (Mr. Giles) in the remarks which he has made on the subject before us. … Every effort has been made to revive the animosities of the House and inflame the passions of the nation. … That there may be a few individuals having a preference for monarchy is not improbable; but will the gentleman from Virginia, or any other gentleman, affirm in his place that there is a party in the country who wish to establish monarchy? Insinuations of this sort belong not to the Legislature of the Union. Their place is an election ground or an alehouse. Within these walls they are lost; abroad, they have an effect, and I fear are still capable of abusing the popular credulity.
We were next told of the parties which have existed, divided by the opposite views of promoting executive power and guarding the rights of the people… .
I know that this is the distinction of party which some gentlemen have been anxious to establish; but this is not the ground on which we divide. I am satisfied with the constitutional powers of the executive and never wished nor attempted to increase them; and I do not believe that gentlemen on the other side of the House ever had a serious apprehension of danger from an increase of executive authority. No, sir, our views as to the powers which do and ought to belong to the general and state governments are the true sources of our divisions. I cooperate with the party to which I am attached because I believe their true object and end is an honest and efficient support of the general government in the exercise of the legitimate powers of the Constitution… .
He represents the government as seizing the first moment which presented itself to create a dependent moneyed interest, ever devoted to its views. What are we to understand by this remark of the gentleman? Does he mean to say that Congress did wrong in funding the public debt? Does he mean to say that the price of our liberty and independence ought not to have been paid? Is he bold enough to denounce this measure as one of the Federal victims marked for destruction? Is it the design to tell us that its day has not yet come, but is approaching; and that the funding system is to add to the pile of Federal ruins? Do I hear the gentleman say we will reduce the Army to a shadow; we will give the Navy to the worms; the Mint, which presented the people with the emblems of their liberty and of their sovereignty, we will abolish; the revenue shall depend upon the winds and waves; the judges shall be made our creatures; and the great work shall be crowned and consecrated by relieving the country from an odious and oppressive public debt? These steps, I presume, are to be taken in progression. The gentleman will pause at each, and feel the public pulse. As the fever increases he will proceed, and the moment of delirium will be seized to finish the great work of destruction… .
After, Mr. Chairman, the honorable member had exhausted one quiver of arrows against the late executive, he opened another, equally poisoned, against the judiciary. He has told us, sir, that when the power of the government was rapidly passing from Federal hands—after we had heard the thundering voice of the people which dismissed us from their service—we erected a judiciary which we expected would afford us the shelter of an inviolable sanctuary. The gentleman is deceived. We knew better, sir, the characters who were to succeed us, and we knew that nothing was sacred in the eyes of infidels. No, sir, I never had a thought that anything belonging to the Federal Government was holy in the eyes of those gentlemen. I could never, therefore, imagine that a sanctuary could be built up which would not be violated. I believe these gentlemen regard public opinion, because their power depends upon it; but I believe they respect no existing establishment of the government; and if public opinion could be brought to support them, I have no doubt they would annihilate the whole. I shall at present only say further, on this head, that we thought the reorganization of the judicial system a useful measure, and we considered it as a duty to employ the remnant of our power to the best advantage of our country… .
I know, sir, that some have said, and perhaps not a few have believed, that the new system was introduced not so much with a view to its improvement of the old, as to the places which it provided for the friends of the administration. This is a calumny so notoriously false, and so humble, as not to require nor to deserve an answer upon this floor. It cannot be supposed that the paltry object of providing for sixteen unknown men could have ever offered an inducement to a great party basely to violate their duty, meanly to sacrifice their character, and foolishly to forego all future hopes.
… I have heard much said about the additional courts created by the act of last session. I perceive them spoken of in the President’s Message. In the face of this high authority, I undertake to state, that no additional court was established by that law. Under the former system there was one Supreme Court, and there is but one now. There were seventeen district courts, and there are no more now. There was a circuit court held in each district, and such is the case at present. Some of the district judges are directed to hold their courts at new places, but there is still in each district but one district court. What, sir, has been done? The unnatural alliance between the supreme and district courts has been severed, but the jurisdiction of both these courts remains untouched. The power of authority of neither of them has been augmented or diminished. The jurisdiction of the circuit court has been extended to the cognizance of debts of four hundred dollars, and this is the only material change in the power of that court. The chief operation of the late law is a new organization of the circuit courts. To avoid the evils of the former plan, it became necessary to create a new corps of judges. It was considered that the Supreme Court ought to be stationary, and to have no connection with the judges over whose sentences they had an appellate jurisdiction… .
The Supreme Court has been rendered stationary. Men of age, of learning, and of experience are now capable of holding a seat on the bench; they have time to mature their opinions in causes on which they are called to decide, and they have leisure to devote to their books and to augment their store of knowledge. It was our hope, by the present establishment of the court, to render it the future pride, and honor, and safety of the nation. It is this tribunal which must stamp abroad the judicial character of our country. It is here that ambassadors and foreign agents resort for justice; and it belongs to this high court to decide finally, not only on controversies of unlimited value between individuals and on the more important collision of state pretensions, but also upon the validity of the laws of the states and of this government. Will it be contended that such great trusts ought to be reposed in feeble or incapable hands? …
Let us next consider, sir, the present state of the circuit courts.
There are six courts, which sit in twenty-two districts; each court visits at least three districts, some four. The courts are now composed of three judges of equal power and dignity. Standing on equal ground, their opinions will be independent and firm. Their number is the best for consultation, and they are exempt from the inconvenience of an equal division of opinion. But what I value most, and what was designed to remedy the great defect of the former system, is the identity which the court maintains. Each district has now always the same court. Each district will hereafter have a system of practice and uniformity of decision. The judges of each circuit will now study, and learn, and retain the laws and practice of their respective districts. It never was intended, nor is it practicable, that the same rule of property or of proceeding should prevail from New Hampshire to Georgia. The old courts were enjoined to obey the laws of the respective states. Those laws fluctuate with the will of the state legislatures, and no other uniformity could ever be expected but in the construction of the Constitution and statutes of the United States. This uniformity is still preserved by the control of the Supreme Court over the courts of the circuits. Under the present establishment, a rational system of jurisprudence will arise. The practice and local laws of the different districts may vary, but in the same district they will be uniform. The practice of each district will suggest improvements to the others, the progressive adoption of which will in time assimilate the systems of the several districts… .
[Mr. Bayard here stated, that he … observed that the common hour of adjournment had gone by, and that he should sit down in order to allow the Committee to rise, if they thought proper; and that he should beg leave to be heard the following day upon the second point. After some conversation, the Committee rose, reported—and the House adjourned.]
Saturday, 20 February 1802
The House again resolved itself into a Committee of the Whole on the bill sent from the Senate, entitled “An act to repeal certain acts respecting the organization of the Courts of the United States, and for other purposes.”
Mr. Bayard.—… I have considered it as conceded, upon all hands, that the legislature have not the power of removing a judge from his office; but it is contended only that the office may be taken from the judge. Sir, it is a principle in law, which ought, and I apprehend does, hold more strongly in politics, that what is prohibited from being done directly is restrained from being done indirectly. Is there any difference, but in words, between taking the office from a judge and removing a judge from the office? Do you not indirectly accomplish the end which you admit is prohibited? I will not say that it is the sole intention of the supporters of the bill before us to remove the circuit judges from their offices, but I will say that they establish a precedent which will enable worse men than themselves to make use of the legislative power for that purpose upon any occasion. If it be constitutional to vacate the office, and in that way to dismiss the judge, can there be a question as to the power to re-create the office and fill it with another man? Repeal to-day the bill of the last session, and the circuit judges are no longer in office. To-morrow, rescind the repealing act (and no one will doubt the right to do it), and no effect is produced but the removal of the judges… .
It was once thought by gentlemen who now deny the principle, that the safety of the citizen and of the states rested upon the power of the judges to declare an unconstitutional law void. How vain is a paper restriction if it confers neither power nor right! Of what importance is it to say, Congress are prohibited from doing certain acts, if no legitimate authority exists in the country to decide whether an act done is a prohibited act? …
If, said Mr. B., you mean to have a Constitution, you must discover a power to which the acknowledged right is attached of pronouncing the invalidity of the acts of the legislature which contravene the instrument. Does the power reside in the states? Has the legislature of a state a right to declare an act of Congress void? This would be erring upon the opposite extreme. It would be placing the general government at the feet of the state governments. It would be allowing one member of the Union to control all the rest. It would inevitably lead to civil dissension and a dissolution of the general government. Will it be pretended that the state courts have the exclusive right of deciding upon the validity of our laws? I admit that they have the right to declare an act of Congress void. But this right they enjoy in practice, and it ever essentially must exist, subject to the revision and control of the courts of the United States. If the state courts definitively possessed the right of declaring the invalidity of the laws of this Government, it would bring us in subjection to the states. The judges of those courts, being bound by the laws of the state, if a state declared an act of Congress unconstitutional, the law of the state would oblige its courts to determine the law invalid. This principle would also destroy the uniformity of obligation upon all the states, which should attend every law of the government. If a law were declared void in one state, it would exempt the citizens of that state from its operation, whilst obedience was yielded to it in the other states. I go further, and say, if the states or state courts had a final power of annulling the acts of this government, its miserable and precarious existence would not be worth the trouble of a moment to preserve. It would endure but a short time, as a subject of derision, and, wasting into an empty shadow, would quickly vanish from our sight… .
Let me now suppose that in our frame of government the judges are a check upon the legislature; that the Constitution is deposited in their keeping. Will you say afterwards that their existence depends upon the legislature? That the body whom they are to check had the power to destroy them? … Can any thing be more absurd than to admit that the judges are a check upon the legislature, and yet to contend that they exist at the will of the legislature? A check must necessarily imply a power commensurate to its end. The political body designed to check another must be independent of it, otherwise there can be no check. What check can there be when the power designed to be checked can annihilate the body which is to restrain it?
I go further, Mr. Chairman, and take a still stronger ground. … If you pass the bill upon your table the judges have a constitutional right to declare it void. I hope they will have courage to exercise that right; and if, sir, I am called upon to take my side, standing acquitted in my conscience and before my God of all motives but the support of the Constitution of my country, I shall not tremble at the consequences.
The Constitution may have its enemies, but I know that it has also its friends. I beg gentlemen to pause before they take this rash step. There are many, very many, who believe, if you strike this blow, you inflict a mortal wound on the Constitution. There are many now willing to spill their blood to defend that Constitution. Are gentlemen disposed to risk the consequences? … Will they risk civil dissension, will they hazard the welfare, will they jeopardize the peace of the country, to save a paltry sum of money—less than thirty thousand dollars?
… Sir, the morals of your people, the peace of the country, the stability of the government, rest upon the maintenance of the independence of the judiciary. It is not of half the importance in England that the judges should be independent of the Crown, as it is with us that they should be independent of the legislature. Am I asked, would you render the judges superior to the legislature? I answer, no, but co-ordinate. Would you render them independent of the legislature? I answer, yes, independent of every power on earth, while they behave themselves well. The essential interests, the permanent welfare of society, require this independence… .
Friday, 26 February 1802
Mr. Nicholson.—… Sir, when I am told that the party advocating this repeal have grown out of the party originally opposed to the Constitution, and are now about to prostrate it, I feel more than I am willing to express; but when gentlemen talk about parties in this country, permit me to turn their attention to an earlier period of our political history, to that period when our liberties and independence were at stake, and when every nerve was strong to resist the encroachments of tyranny. At this time where were many of that gentleman’s political friends? Upon examination it will be found that many of them basely deserted their country in her distress and were openly fighting in the ranks of her enemies. In the list of my political friends, none such are to be found, for we do not require their support. But I can look about me, upon my right hand and upon my left, and can see men, even upon this floor, advocating the present bill, who bore the burden of the Revolutionary war, who drew their swords to establish the independence we now enjoy, and who will not hesitate to draw them again if those threats are carried into execution which have been recently thrown out against the Constitution. I know men too, equally distinguished for their talents and their virtues, friendly to this repeal, who signed the Constitution as members of the General Convention, who used every effort to promote its adoption, and who, I have no doubt, are ready to defend it to the last moment. There are men likewise, and gentlemen dare not contradict me, who refused their signatures to the Constitution as members of the General Convention, and who opposed it in every stage of its adoption, but were afterwards received into favor and were high in the confidence of the former administration. Which of these two descriptions of persons are most likely to cherish the Constitution, I cheerfully leave to the American people to decide… .
The gentleman from North Carolina, who opened the debate, … commenced an unwarrantable attack upon a majority of the House by declaring that on the seventh of December the same spirit of innovation had entered these walls which had laid waste the fairest portions of Europe; that it was now about to tear down all the valuable institutions which had been erected by former administrations and even to destroy the Constitution itself. Did gentlemen imagine that such observations were to pass unnoticed? Did they suppose that we would sit tamely down under an imputation at once so heavy and so groundless? Was it not natural that we should go back and look into the nature and origin of those measures which had been denominated the fairest institutions and which the gentleman had particularized as the debt, the taxes, the judiciary, and the mint? Yes, sir, the gentleman from Virginia did take a view of these fair institutions, and did show, whatever might have been the motives of their authors, that their inevitable tendency was to strengthen the power of the executive. It is this undue influence of the executive power of the government that we wish to reduce; it is this influence that we wish to confine within its proper limits, in order to prevent the government from taking that course which most republican governments have heretofore taken; to prevent it from arriving at that goal where the spirit of republicanism is lost and monarchy commences… .
When we attempt to correct these errors, let us not be told that we are about to prostrate the Constitution. The Constitution is as dear to us as to our adversaries, and we will go as far to support it. It is by repairing the breaches that we mean to save it and to set it on a firm and lasting foundation, that shall resist the attacks of its enemies and defy the encroachments of ambition. We are yet a young nation and must learn wisdom from the experience of others. By avoiding the course which other nations have steered, we shall avoid likewise their catastrophe. Public debts, standing armies, and heavy taxes have converted the English nation into a mere machine to be used at the pleasure of the crown. … It is true we have had no riot act, but we have had a Sedition Act, calculated to secure the conduct of the executive from free and full investigation; we have had an army, and still have a small one, securing to the executive an immensity of patronage; and we have a large national debt, for the payment of the principal and interest of which it is necessary to collect “yearly millions,” by means of a cloud of officers spread over the face of the country. By repealing a part of the taxes from which a part of this money has been raised, we not only lessen the burdens of the people, but we likewise discharge a large portion of those officers who are appointed by the executive and who add greatly to his influence.
This debt, which now hangs as a dead weight about us, had been called the price of our independence, and has been spoken of as a debt due to the “war-worn soldier,” which we assumed and funded to alleviate his sufferings. This position I cannot assent to. When the veteran soldier returned from the fatigues and hardships of the war, to enjoy domestic comfort, he brought with him, as an evidence of the service he had rendered, nothing but his certificates and his wounds. They were, indeed, honorable testimonials; the latter he felt would remain with him while life lasted, and the former he left with the hope that, one day or other, his country would be in a situation to pay him; but the hard hand of poverty pressed upon him, and stern necessity compelled him to part with them for a pittance. The rich and cunning speculator, who had sheltered himself from the storm, now came out to prey upon his distress, and, for two shillings and sixpence in the pound, he purchased this poor reward of toil and hardship. When you were about to make provision for the payment of this debt, you were called on, loudly called on, by the voice of humanity, by the spirit of justice, to make a discrimination in favor of the soldier. He asked you to give to the speculator what the speculator had advanced, but to give the balance to the poor, though valiant soldier, who had faithfully earned it in the frozen regions of Canada or the burning sands of South Carolina; you regarded him not; to his tale of distress you turned a deaf ear; his services and his sufferings were forgotten; the cold and hunger he had endured, the blood he had spilt, were no longer remembered; you cast him upon the unfeeling world, a miserable dependent upon charity for subsistence. Let not then the gentleman from Delaware call this debt the price of our independence or a compensation to the war-worn soldier. To him it was a poor compensation indeed. Its effect was to intrench yourselves around by rich speculators, whose interest and influence you secured, and who would be ready to support you in any measures, provided you would insure them the payment of the interest on that debt, which was funded for their benefit, but which was created at the hazard and expense of a brave and meritorious soldiery. From motives of a shameful policy you enabled the proud speculator to roll along in his gilded chariot, while the hardy veteran, who had fought and bled for your liberties, was left to toil for his support or to beg his bread from door to door.
But this debt, iniquitous as we deem the manner of its settlement, we mean to discharge; but we mean not to perpetuate it; it is no part of our political creed that “a public debt is a public blessing.” We will, I trust, make ample provision for its final redemption; and when in a few days a proposition shall be submitted for the annual appropriation of seven millions and three hundred thousand dollars to this object, I challenge gentlemen on the other side of the House, who express so much anxiety about public faith, to be as forward in support of this measure as I shall be. We will then show to the American nation who are most inclined to support the public credit, whether those who are desirous of paying the debt or those who are anxious for its perpetuation.
The member from Delaware told us that the gentleman from Virginia (Mr. Giles), after exhausting one quiver, had unlocked another and discharged it upon the judges. … But why all this uneasiness about dismissals from office? Have the friends of gentlemen heretofore been so eager in their pursuit of the loaves and fishes that they are now unwilling to surrender them? Have they enjoyed them with such peculiar delight that they now murmur at the exercise of the constitutional right which the President possesses of displacing from office all those whom he thinks unfit for the duties and of putting in those who, in his opinion, are better qualified? Surely when gentlemen are so strenuously contending for the constitutional rights of the judiciary, they ought not to murmur at the exercise of a constitutional right by the executive. Nor do I think they can with any propriety complain when it is recollected that, although the President had the power of disposing of all offices, yet he has left by far the larger proportion in the possession of men who are personally and politically his enemies. From the great discontent expressed on the subject of removals, it might seem that the judges themselves were rather the objects of general solicitude than the system of constitutional privileges of the judiciary.
This judiciary, however, the gentleman from Delaware has said, in that same spirit of Christian meekness which appears to have characterized him throughout, he never considered a sanctuary, because he knew that nothing was sacred in the eyes of infidels. May I be permitted to ask what the honorable gentleman means by infidels? … If, sir, an unqualified aversion to the high-fashioned opinion that a public debt is a public blessing; if a total unbelief in the propriety of laying heavy and oppressive taxes to pay a useless and expensive army; if the strongest reprobation or every law calculated to restrain the liberty of the press and thereby prevent the nation from inquiring into its own concerns; if the entire rejection of the odious principle that the reins of government are to be placed in the hands of a set of men who are independent of and beyond the control of the people, afford any evidence of infidelity, then do I avow myself as much an infidel as any man living… .
Mr. N. sat down; the Committee rose, and the House adjourned.
Saturday, 27 February 1802
The House again resolved itself into a Committee on the bill sent from the Senate, entitled “An act of repeal certain acts respecting the organization of the Courts of the United States, and for other purposes.”
Mr. Nicholson (in continuation) offered his acknowledgments to the Committee for consenting to hear him again today… .
… We say that we have the same right to repeal the law establishing inferior courts that we have to repeal the law establishing post offices and post roads, laying taxes, or raising armies. This right would not be denied but for the construction given to that part of the Constitution which declares that “the judges both of the supreme and inferior courts shall hold their offices during good behavior.” The arguments of gentlemen generally have been directed against a position that we never meant to contend for: against the right to remove the judges in any other manner than by impeachment. This right we have never insisted on. … Our doctrine is that every Congress has a right to repeal any law passed by its predecessors, except in cases where the Constitution imposes a prohibition… .
… The independence of the three branches of government has, in my opinion, been much talked of without being fairly defined or correctly understood. The powers of our government are distributed under three different heads, and are committed to the different departments. The legislative power extends to the enacting, revising, amending, or repealing all laws, as the various interests of the nation may require. The judiciary power consists in an authority to apply those laws to the various controversies which may arise between man and man, or between the government and its citizens, and to pronounce sentence agreeably to the dictates of their judgment and consciences. After the judicial decree, it then becomes the business of the executive to carry it into effect according to its true intent, and conformably to the laws of the land. In all governments where they have the semblance of freedom, the great desideratum has been to keep these three branches so entirely separate and distinct as that the powers of neither should be exercised by the other; or, in other words, that the legislative powers should never be exercised by the executive or the judiciary, that the judicial powers should not be exercised by the legislative or executive, and that the executive powers should not be exercised by the legislature or judiciary. But there is no government on the face of the earth, whose history I am acquainted with, in which a total and entire independence has been established. In England the judiciary hold their offices at the will of Parliament. In the States of Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, and Georgia, the judges are either elected by the legislature for a limited time, or are subject to removal by them; in New York, some of the judges are in the same situation; in New Hampshire, the legislature are authorized to limit the duration of their commissions, and, I believe, are in the habit of doing so; and in Maryland, Virginia, North Carolina, South Carolina, and Georgia, the executive is absolutely dependent on the legislature for his continuance in office, being annually or biennially elected. In Tennessee, and in most, perhaps all of the others, both the judiciary and the executive are dependent on the legislature for the amount and payment of their salaries. Yet, sir, in all these states, where we find no such idea of independence as is now contended for, there has been no confusion, no disorder. The people are happy and contented, and I venture to affirm, are more free than the inhabitants of any other part of the globe. They are happy, because none can oppress them; they are free, because they have a control over their public agents. But if the public agents of the federal government are to be set above the nation and are to be invested with the arbitrary and uncontrolled powers which some gentlemen insist on, who can say where they will stop, or what bounds shall be prescribed to them? Man is fond of power, is continually grasping after it, and is never satisfied. He is not, therefore, to be trusted. Unlimited confidence is the bane of a free government. Those who would retain their freedom, must likewise retain power over agents, or they will be driven to destruction. I have been taught to believe, that the power is never so safe as in the hands of those for whose benefit it is to be employed. I consider it in their hands when it is delegated to representatives freely chosen by themselves for a short period, and immediately responsible to them for its use. “Power in the people has been well compared to light in the sun; native, original, inherent, and not to be controlled by human means.” But power, when once surrendered to independent rulers, instantly becomes a despot, and arms itself with whips and chains. While the people retain it in their own hands, it exalts the character of a nation, and is at once their pride and their security; if they surrender it to others, it becomes restless and active, until it debases the human character, and enslaves the human mind; it is never satisfied until it finally tramples upon all human rights. It is against this surrender of power that I contend; it is this vital principle of the Constitution that I never will yield. The people are the fountain of all power; they are the source from which every branch of this government springs, and never shall any act of mine place one branch beyond their control… .