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held commissions to perform the same duties, although one person only was authorized by law to discharge those duties, whilst the office, where the promotion was refused, remained vacant. This was actually the case, in several of the districts of the United States. This subject will be put into a still stronger point of view, by examining the journals of the senate, which I am sorry to do for this purpose. When discussing the bill in question in the senate, I find this entry on their journals, « on motion to strike out the whole of the bill after the words (from and after,) section first, line second, for the purpose of inserting as follows, (to wit,) a substitute for the bill.” On the question to agree to this motion, it passed in the negative-yeas, thirteennays, seventeen. I observe among
I observe among the nays, the names of Mr. Green, of Rhode Island, and Mr. Read, of South Carolina. Both these gentlemen received appointments in virtue of the promotion of judges under this law. If these gentlemen had voted on the opposite side of the question, the law would never have been in existence. I mention this circumstance, not to impugn the motives of any gentleman, but to demonstrate the temptation held out to the members of the legislature, under the doctrine contended for against the repeal of this law. The refusal of the present President to correct what was called a mistake in Mr. Green's appointment, having excited some clamor, it is necessary to put this subject in a correct point of view. It seems that in filling up Mr. Green's commission, the word “ circuit,' instead of the word “ district,” was inserted, it is presumed, by mistake. If the commission was intended for the circuit court, it was a breach of the constitution, in its most obvious letter. If it was intended for the district court, it was void ab initio ; because, at the date of the commission, no vacancy had happened, and the President's right to appoint depended on that precedent condition, and he, therefore, in making the appointment, attempted to exercise a power he did not possess. It must be obvious to every gentleman, that
Mr. Green's accepting the commission, under all the incidents attending the case, could furnish but a negative recommendation of Mr. Green, in his application for that or any other appointment. Upon a review of the history of the law in question, according to the doctrine of its advocates, the temptation to the legislature to make permanent, irrevocable provision for themselves, must be obvious to every impartial observer. If, when a judicial establishment be once made, it becomes irrevocable, how easy would it be for a legislature, combined with the executive, to compensate themselves for the loss of the confidence of their constituents, by following the example before us? By erecting a new tier of judges, holding out to them additional emoluments, and by filling up the vacancies, occasioned by their promotion, with the members of the legislature.
This operation would be most likely to take place when the representatives had lost the confidence of their constituents, and of course less likely to be influenced by considerations of public good. Again, sir, the sinecure system thus established, would have the advantage of all other similar systems existing in the world; because, if in other countries the sinecure system has become oppressive to the people, they have the consolation to recollect, that the evil may be lessened by the competent authority; but, according to the doctrine, upon which the system is bottomed in the United States, no remedy can be applied to the mischief, by the union of all the responsible agents of the people. How, sir, would the framers of our constitution lament, after all the care and circumspection they have used to exclude this system entirely from the practical operation of the government, that the constitution itself should be made the instrument of its introduction, and its permanent, irrevocable establishment? And this too at the moment of an expiring administration; when the passions of men just parting from power, were breaking down every impediment which
stood in the way of attaining their object! Upon the whole, therefore, it appears, that this doctrine of the irrepealability of laws derives no consideration from the consequences which naturally flow from it.
Having exhausted so great a portion of the time and attention of the committee, in discussing the constitutional question, which has been made the cardinal point in the debate, I propose to confine myself to very few observations upon the expediency of the contemplated repeal. I take it for granted, that the former judicial system was competent to the discharge of all the judicial business in the United States; but if that should be denied, I think it demonstrable from the document before the committee. The gentleman from Delaware, (Mr. Bayard,) has intimated a doubt whether the President acted correctly, in favoring us with the document. I shall only observe in reply, that the constitution imposes a duty upon the President, from time to time, to give to Congress information of the state of the union, and recommend to their consideration, such measures as he shall judge necessary and expedient. The number of suits in the courts of the United States must always be very small, from the limited objects of their jurisdiction ; this will appear by reading the second section of the third article of the constitution, limiting their jurisdiction. The whole expense of the existing system is one hundred and thirty-seven thousand dollars, of which forty thousand or fifty thousand dollars may be attributable to the new system; the estimates differing between these two
Whether the expense be estimated, either according to the service to be rendered, or by comparison with any other system, it appears to me to be enormous. I have examined the document before us, by way of ascertaining the relative view of expense and service, and also the competency of the former system to the discharge of the business. I would not, however, be responsible for precise clerical accuracy, in my addition, which has also been deemed a subject worthy of criticism against the President of the United States. But if it be within twenty-five per centum of being correct, it will demonstrate, first, that the former courts were competent to the business; second, that the number of causes bears no proportion to the expense of the institution.
I will present to the view of the committee, the whole number of causes instituted at the respective sessions of the courts, from the spring of 1796 to the spring of 1801. I have fixed upon the year 1796, because the business began then to increase under the influence of the British treaty.
In all the circuit courts of the United States, except Maryland and Tennessee, the whole number of causes, of every description, instituted in the spring of 1796, was two hundred and ninety-four; fall, one hundred and ninety-two—1797, spring, four hundred and eightyone; fall, three hundred and ninety-seven–1798, spring, three hundred and twenty-five; fall, three hundred and ninety-seven-1799, spring, seven hundred and three, exclusive of ninety-eight criminal prosecutions in Pennsylvania; fall, four hundred and fifty-five-1800, spring, four hundred and fifty-one, seventy criminal prosecutions in Pennsylvania ; fall
, three hundred and fiftyfive-1801, spring, three hundred and fifty. Making the common calculation of suits settled between the parties without trial, dismissions, abatements, &c. &c. and it will appear, that the whole number of judgments against solvent persons, would hardly compensate the expense of the institution. It also appears, that the number of causes left to be tried, could easily be decided by the six former judges.
Upon looking over the number of suits in the eastern eircuit, it appears to me strange, that the members representing that part of the country, should insist upon increasing the expense of the system, wnen the courts have there scarcely any business to attend to; and that gentlemen in the southern states, where the business is greater, should be willing to lessen the expense.
I never heard the smallest complaint in the state I represent, respecting the incompetency of the former courts to discharge the business in that state. I believe they have always gone through the docket, whenever they attended, and as far as my own observations go, that is the fact. It appears strange to me, that the new courts and new expenses should be called for in other parts of the United States, when the old courts are competent to the business in that state, where the business has been considerably more than in any other state, although it is now very much declined, and probably will decline still more.
lecline still more. In the courts of Maine, West Pennsylvania, West Virginia and West Tennessee, no suit at all had been instituted in June last.
Under the view of the subject thus presented, I consider the late courts as useless and unnecessary, and the expense, therefore, is to me highly objectionable. I do not consider it in the nature of a compensation, for there is no equivalent rendition of service. I cannot help considering it as a tribute for past services— as a tribute for the zeal displayed by these gentlemen in supporting principles which the people have denounced. I think the federal maxim always was millions for defence, not a cent for tribute.' I cannot consent to tax the people even one cent, as a tribute to men who disrespect their principles.
Another objection I have to the new organization of the courts, is, their tendency to produce a gradual demolition of state courts, by multiplying the number of courts, increasing their jurisdiction, making bonds or obligatory bills assignable, with the privilege of bringing suits in the name of the assignee, &c. &c. or, as gentlemen say, bringing federal justice to every man's door; the state courts will be ousted of their jurisdiction, which, I think by no means a desirable event. Under this consideration alone, and under the conviction I feel of the inutility of the courts, I shall vote for the repeal.