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On the following motion : “ Resolved, 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United States,' ought to be repealed." The Act of 1801, referred to in the above resolution, very essential
ly changed the judicial system of the United States, from what it had been previous to that time. It provided for the establishment of several new tribunals, denominated Circuit Courts, the abolition of which was the principal object of the advocates of the resolution.
MR. PRESIDENT, I FEEL some degree of embarrassment in offering my sentiments on a subject so fully and so ably discussed. I believe, that the ground taken by my friend from Kentucky, has not been shaken by any arguments urged in opposition to the resolution on the table. Yet, as some observations have been made, calculated to excite sensibility, not here, but abroad; as they appear to have been made with a view to that end; and as an alarm has been attempted to be excited on constitutional ground, I think the observations ought not to go unnoticed.
I agree with gentlemen, that it is important, in a well regulated government, that the judicial department should be independent. But I have never been among those who have carried this idea to the extent which seems at this day to be fashionable. Though
of opinion, that each department ought to discharge its proper duties free from the fear of the others, yet I have never believed, that they ought to be independent of the nation itself. Much less have I believed it proper, or that our constitution authorizes our courts of justice, to control the other departments of the government.
All the departments of a popular government must depend, in some degree, on popular opinion. None can exist without the affections of the people, and if either be placed in such a situation as to be independent of the nation, it will soon lose that affection which is essential to its durable existence.
Without, however, going into an inquiry of what kind of organization is most fit for our tribunals; without inquiring into the fitness of making the judges independent for life, I am willing to enterin to a consideration, not of what ought to be, but of what is. Whatever opinion I may individually entertain of the provisions of the constitution, relative to the judiciary, sitting here under that constitution, I am bound to observe it as the charter under which we are assembled.
When I view the provisions of the constitution on this subject, I observe a clear distinction between the supreme court and other courts. I am sensible, that when we come to make verbal criticisms, any gentleman, of a sportive imagination, may amuse our fancies by a play upon words. But this is not the way to get rid of a genuine construction of the constitution. With regard to the institution of the supreme court, the words are imperative; while, with regard to inferior tribunals, they are discretionary. The first shall, the last may be established. And surely, we are to infer from the wise sages that formed that constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even points, elucidate its meaning. When, therefore, the constitution, using this language, says, a supreme court shall be established, are we not justified in considering it as of constitutional creation? And, on the other hand, from the language applied to inferior courts, are we not equally justified in considering their establishment as dependent upon the legislature, who may, from time to time, ordain them, as the public good requires ? Can any other meaning be applied to the words " from time to time?" And nothing can be more important on this subject, than that the legislature should have power, from time to time, to create, to annul, or to modify the courts, as the public good may require; not merely to-day, but forever; and whenever a change of circumstances may suggest the propriety of a different organization. On this point, there is great force in the remark of the gentleman from Georgia, that among the enumerated powers given to Congress, while there is no mention made of the supreme court, the power of establishing inferior courts is expressly given. Why this difference, but that the supreme court was considered by the framers of the constitution, as established by the constitution; while they considered the inferior courts as dependent upon the will of the legislature.
We find the phrase, from time to time, in another part of the constitution. The third section of the second article says, the President shall, from time to time, give to the Congress information of the state of the union. That is, he shall occasionally, as he sees fit, give such information. So shall Congress occasionally, as they see fit, establish, annul, or regulate inferior courts, accordingly as the public welfare requires.
The arguments of gentlemen go upon a mistaken principle. They express the liveliest sympathy and commiseration for this poor, this weak department of our government. They tell us, the judges have a vested right to their offices, a right not now derived from the law, but from the constitution; and they assimilate their case to that of a public debt; to the right of a corporation; a turnpike company, or a toll-bridge.
But is not all this reasoning predicated on the principle, that the courts are established, not for the public benefit, but for the emolument of the judges; not to administer justice, but for their personal aggrandizement. I believe that a government ought to proceed upon different principles. It ought to establish only those institutions which the good of the community requires; when that good ceases to need them, they ought to be put down, and of consequence, the judges should hold their appointments so long and no longer, than the public welfare requires.
If the arguments now urged be correct, that a court once established cannot be vacated, we are led into the greatest absurdities. Congress might deem it expedient to establish a court for particular purposes, limited as to its objects or duration. For instance, the United States has taken possession of the Mississippi territory, rightfully or not, I will not pretend to say. This territory has been, heretofore, in the hands of various masters, viz. France, England, Spain and Georgia; and it is now possessed by the United States. All these governments, except the United States, made certain grants of lands in the territory, and certain settlers spread their conflicting patents over the country. These different titles will open a wide field for litigation, which will require able tribunals to decide upon. Suppose then Congress should establish special tribunals, to continue for three, four or five years, to settle these claims. Judges would be appointed. They would be the judges of an inferior court.
If the construction of the constitution now contended for be established, what would the judges say, when the period, for which they were appointed, expired? Would they not say, we belong to inferior courts? Would they not laugh at you, when you told them their term of office was out? Would they not say, in the language of the gentleman from New York, though the law that creates us is temporary, we are in by the constitution ? Have we not heard this doc
trine supported in the memorable case of the mandamus, lately before the supreme court ? Was it not there said, that though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years; that it was right in making the justices, but unconstitutional in limiting their periods of office; that being a judicial officer, he had a right to hold his office during life, (or what is about the same thing,) during good behaviour, in despite of the law which
created him, and in the very act of creation, limiting his official life to five years.
I may notice another case, more likely to happen, to show the absurdity of this construction. Congress have assumed jurisdiction over the Mississippi territory, and have established a court composed of three judges, which court is as much an inferior court, as the circuit or district courts. Of this jurisdiction, Georgia denies the validity. The contest is in a train of settlement. Suppose it shall turn out that the United States are convinced of the injustice of their claim, relinquish it, and restore the territory to Georgia, what becomes of the judges ? Their offices, their duties are gone! Yet they will tell you, we are vested with certain constitutional rights of which you cannot deprive us. It is true the territory is no longer yours. You have no jurisdiction, and we have no power; yet we are judges by the constitution. We hold our offices during good behaviour, and we will behave well as long as you will let us. Is not this a strange situation? You have judges in a territory over which you have no jurisdiction; and you have officers which are perfect sinecures, pensioners for life. Such an absurdity, I am sure the constitution never meant to justify. It is an absurdity equally repugnant to the letter and the genius of the constitution.
Suppose another case. Suppose, what I trust will never happen, a war should take place. Suppose that a part of the United States should be conquered, and