Chapter M: X. again called upon us. He said M. Talleyrand was (16)

Other circumstances, combined with the increase of numbers,
have produced an augmentation of revenue arising from
consumption, in a ratio far beyond that of population
alone; and, though the changes in foreign relations now
taking place, so desirably for the whole world, may for a
season affect this branch of revenue, yet, weighing all
probabilities of expense, as well as of income, there is
reasonable ground of confidence that we may now safely
dispense with all the internal taxes--comprehending excise,
stamps, auctions, licenses, carriages, and refined sugars;
to which the postage on newspapers may be added, to
facilitate the progress of information; and that the
remaining sources of revenue will be sufficient to provide
for the support of Government, to pay the interest of the
public debts, and to discharge the principals within
shorter periods than the laws or the general expectation
had contemplated. War, indeed, and untoward events, may
change this prospect of things, and call for expenses which
the imposts could not meet. But sound principles will not
justify our taxing the industry of our fellow-citizens to
accumulate treasure for wars to happen we know not when,
and which might not, perhaps, happen, but from the
temptations offered by that treasure.

These views, however, of reducing our burdens, are formed
on the expectation that a sensible, and at the same time a
salutary, reduction may take place in our habitual
expenditures. For this purpose those of the civil
Government, the army, and navy, will need revisal. When we
consider that this Government is charged with the external
and mutual relations only of these States; that the States
themselves have principal care of our persons, our
property, and our reputation, constituting the great field
of human concerns, we may well doubt whether our
organization is not too complicated, too expensive; whether
offices and officers have not been multiplied
unnecessarily, and sometimes injuriously to the service
they were meant to promote. I will cause to be laid before
you an essay towards a statement of those who, under public
employment of various kinds, draw money from the Treasury,
or from our citizens. Time has not permitted a perfect
enumeration, the ramifications of office being too
multiplied and remote to be completely traced in a first
trial. Among those who are dependent on Executive
discretion, I have begun the reduction of what was deemed
unnecessary. The expenses of diplomatic agency have been
considerably diminished. The inspectors of internal
revenue, who were found to obstruct the accountability of
the institution, have been discontinued. Several agencies,
created by Executive authority, on salaries fixed by that
also, have been suppressed, and should suggest the
expediency of regulating that power by law, so as to
subject its exercise to Legislative inspection and
sanction. Other reformations of the same kind will be
pursued with that caution which is requisite, in removing
useless things, not to injure what is retained. But the
great mass of public offices is established by law, and
therefore by law alone can be abolished. Should the
Legislature think it expedient to pass this roll in review,
and try all its parts by the test of public utility, they
may be assured of every aid and light which Executive
information can yield. Considering the general tendency to
multiply offices and dependencies, and to increase expenses
to the ultimate term of burden which the citizens can bear,
it behooves us to avail ourselves of every occasion which
presents itself for taking off the surcharge; that it never
may be seen here that, after leaving to labor the smallest
portion of its earnings on which it can subsist, Government
shall itself consume the whole residue of what it was
instituted to guard.

In our care, too, of the public contributions intrusted to
our direction, it would be prudent to multiply barriers
against their dissipation, by appropriating specific sums
to every specific purpose susceptible of definition; by
disallowing all applications of money varying from the
appropriation in object, or transcending it in amount; by
reducing the undefined field of contingencies, and thereby
circumscribing discretionary powers over money; and by
bringing back to a single department all accountabilities
for money, where the examinations may be prompt,
efficacious, and uniform.

An account of the receipts and expenditures of the last
year, as prepared by the Secretary of the Treasury, will,
as usual, be laid before you. The success which has
attended the late sales of the public lands shows that,
with attention, they may be made an important source of
receipt. Among the payments those made in discharge of the
principal and interest of the national debt, will show that
the public faith has been exactly maintained. To these will
be added an estimate of appropriations necessary for the
ensuing year. This last will, of course, be affected by
such modifications of the system of expense as you shall
think proper to adopt.

A statement has been formed by the Secretary of War, on
mature consideration, of all the posts and stations where
garrisons will be expedient, and of the number of men
requisite for each garrison. The whole amount is
considerably short of the present Military Establishment.
For the surplus no particular use can be pointed out. For
defence against invasion their number is as nothing; nor is
it conceived needful or safe that a standing army should be
kept up in time of peace, for that purpose. Uncertain as we
must ever be of the particular point in our circumference
where an enemy may choose to invade us, the only force
which can be ready at every point, and competent to oppose
them, is the body of neighboring citizens, as formed into a
militia. On these, collected from the parts most
convenient, in numbers proportioned to the invading force,
it is best to rely, not only to meet the first attack, but
if it threatens to be permanent, to maintain the defence
until regulars may be engaged to relieve them. These
considerations render it important that we should, at every
session, continue to amend the defects which from time to
time show themselves in the laws for regulating the
militia, until they are sufficiently perfect: nor should we
now, or at any time, separate, until we can say that we
have done every thing for the militia which we could do
were an enemy at our door.

The provision of military stores on hand will be laid
before you, that you may judge of the additions still
requisite.

With respect to the extent to which our naval preparations
should be carried, some difference of opinion may be
expected to appear; but just attention to the circumstances
of every part of the Union will doubtless reconcile all. A
small force will probably continue to be wanted for actual
service in the Mediterranean. Whatever annual sum beyond
that you may think proper to appropriate to naval
preparations, would perhaps be better employed in providing
those articles which may be kept without waste or
consumption, and be in readiness when any exigence calls
them into use. Progress has been made, as will appear by
papers now communicated, in providing materials for
seventy-four gun ships, as directed by law.

How far the authority given by the Legislature for
procuring and establishing sites for naval purposes, has
been perfectly understood and pursued in the execution,
admits of some doubt. A statement of the expenses already
incurred on that subject is now laid before you. I have, in
certain cases, suspended or slackened these expenditures,
that the Legislature might determine whether so many yards
are necessary as have been contemplated. The works at this
place are among those permitted to go on; and five of the
seven frigates directed to be laid up, have been brought
and laid up here, where, besides the safety of their
position, they are under the eye of the Executive
Administration, as well as of its agents; and where
yourselves also will be guided by your own view in the
legislative provisions respecting them, which may, from
time to time, be necessary. They are preserved in such
condition, as well the vessels as whatever belongs to them,
as to be at all times ready for sea at a short warning. Two
others are yet to be laid up, as soon as they shall receive
the repairs requisite to put them also into sound
condition. As a superintending officer will be necessary at
each yard, his duties and emoluments, hitherto fixed by the
Executive, will be a more proper subject for legislation.
A communication will also be made of our progress in the
execution of the law respecting the vessels directed to be
sold.

The fortifications of our harbors, more or less advanced,
present considerations of great difficulty. While some of
them are on a scale sufficiently proportioned to the
advantages of their position, to the efficacy of their
protection, and the importance of the points within it,
others are so extensive, will cost so much in their first
erection, so much in their maintenance, and require such a
force to garrison them, as to make it questionable what is
best now to be done. A statement of those commenced or
projected; of the expenses already incurred; and estimates
of their future cost, as far as can be foreseen, shall be
laid before you, that you may be enabled to judge whether
any alteration is necessary in the laws respecting this
subject.

Agriculture, manufactures, commerce, and navigation, the
four pillars of our prosperity, are then most thriving when
left most free to individual enterprise. Protection from
casual embarrassments, however, may sometimes be seasonably
interposed. If, in the course of your observations or
inquiries, they should appear to need any aid within the
limits of our constitutional powers, your sense of their
importance is a sufficient assurance they will occupy your
attention. We cannot, indeed, but all feel an anxious
solicitude for the difficulties under which our carrying
trade will soon be placed. How far it can be relieved,
otherwise than by time, is a subject of important
consideration.

The Judiciary system of the United States, and especially
that portion of it recently erected, will, of course,
present itself to the contemplation of Congress; and that
they may be able to judge of the proportion which the
institution bears to the business it has to perform, I have
caused to be procured from the several States, and now lay
before Congress, an exact statement of all the causes
decided since the first establishment of the courts, and of
those which were depending when additional courts and
judges were brought in to their aid.

And while on the Judiciary organization, it will be worthy
of your consideration whether the protection of the
inestimable institution of juries has been extended to all
the cases involving the security of our persons and
property. Their impartial selection also being essential to
their value, we ought further to consider whether that is
sufficiently secured in those States where they are named
by a marshal depending on Executive will, or designated by
the court, or by officers dependent on them.

I cannot omit recommending a revisal of the laws on the
subject of naturalization. Considering the ordinary chances
of human life, a denial of citizenship under a residence of
fourteen years, is a denial to a great proportion of those
who ask it; and controls a policy pursued, from their first
settlement, by many of these States, and still believed of
consequence to their prosperity. And shall we refuse to the
unhappy fugitives from distress that hospitality which the
savages of the wilderness extended to our fathers arriving
in this land? Shall oppressed humanity find no asylum on
this globe? The constitution, indeed, has wisely provided
that, for admission to certain offices of important trust,
a residence shall be required sufficient to develope
character and design. But might not the general character
and capabilities of a citizen be safely communicated to
every one manifesting a bona fide purpose of embarking his
life and fortunes permanently with us? with restrictions,
perhaps, to guard against the fraudulent usurpation of our
flag? an abuse which brings so much embarrassment and loss
on the genuine citizen, and so much danger to the nation of
being involved in war, that no endeavor should be spared to
detect and suppress it.

These, fellow-citizens, are the matters respecting the
state of the nation which I have thought of importance to
be submitted to your consideration at this time. Some
others of less moment, or not yet ready for communication,
will be the subject of separate Messages. I am happy in
this opportunity of committing the arduous affairs of our
Government to the collected wisdom of the Union. Nothing
shall be wanting on my part to inform, as far as in my
power, the legislative judgment, nor to carry that judgment
into faithful execution. The prudence and temperance of
your discussions will promote, within your own walls, that
conciliation which so much befriends rational conclusion;
and by its example will encourage among our constituents
that progress of opinion which is tending to unite them in
object and in will. That all should be satisfied with any
one order of things, is not to be expected; but I indulge
the pleasing persuasion that the great body of our citizens
will cordially concur in honest and disinterested efforts,
which have for their object to preserve the General and
State Governments in their constitutional form and
equilibrium; to maintain peace abroad, and order and
obedience to the laws at home; to establish principles and
practices of administration favorable to the security of
liberty and property, and to reduce expenses to what is
necessary for the useful purposes of Government.

THOMAS JEFFERSON.

DECEMBER 8, 1801.

The Letter and Message were read, and ordered to be printed for the use of the Senate.

The papers referred to in the Message were in part read, and the Senate adjourned.

WEDNESDAY, December 9.

The Senate proceeded to the appointment of a Chaplain to Congress on their part, and the Rev. Mr. GANTT was elected.

THURSDAY, December 10.

_Resolved_, That James Mathers, Sergeant-at-Arms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ one additional assistant, and two horses, for the purpose of performing such services as are usually required of the Doorkeeper to the Senate; and that the sum of twenty-eight dollars be allowed him weekly for the purpose during the session, and for twenty days after.

FRIDAY, December 11.

JOHNATHAN MASON, from the State of Massachusetts, and JAMES SHEAFE, from the State of New Hampshire, severally attended.

MONDAY, December 14.

JAMES HILLHOUSE, from the State of Connecticut, and DWIGHT FOSTER, from the State of Massachusetts, severally attended.

A message from the House of Representatives informed the Senate that the House have elected the Reverend WILLIAM PARKINSON a Chaplain to Congress on their part.

SATURDAY, December 19.

GOUVERNEUR MORRIS, from the State of New York, attended.

THOMAS SUMTER, appointed a Senator by the Legislature of the State of South Carolina, in the place of their late Senator, Charles Pinckney, resigned, produced his credentials, was qualified, and took his seat in the Senate.

MONDAY, December 21.

The credentials of GEORGE LOGAN, appointed a Senator by the Legislature of the State of Pennsylvania, were presented and read; and the affirmation prescribed by law was administered by the President.

TUESDAY, December 22.

DAVID STONE, from the State of North Carolina, attended.

MONDAY, December 28.

JOHN EWING COLHOUN, appointed a Senator by the Legislature of the State of South Carolina, produced his credentials, was qualified, and took his seat in the Senate.

THURSDAY, December 31.

Mr. BRECKENRIDGE presented the petition of Isaac Zane, stating that he was made a prisoner at the age of nine years by the Wyandot Indians, with whom he remained until he became of age; had a family by a woman of that nation, and a tract of land was assigned him by the said nation, on a branch of the Great Miami, and which tract of land was ceded to the United States by a recent treaty with the said Wyandot Indians, and praying such relief as may be deemed equitable; and the petition was read, and committed to Messrs. BRECKENRIDGE, TRACY, and OGDEN, to consider and report thereon.

TUESDAY, January 5, 1802.

Mr. BROWN, from the State of Kentucky, attended.

_Reporting the Debates._

The PRESIDENT laid before the Senate a letter signed Samuel H. Smith, stating that he was desirous of taking notes of the proceedings of the Senate, in such manner as to render them correct: Whereupon,

_Resolved_, That any stenographer desirous to take the debates of the Senate on Legislative business, may be admitted for that purpose, at such place within the area of the Senate Chamber as the President may allot:

And, on motion to reconsider the above resolution, it passed in the affirmative--yeas 17, nays 9.

YEAS.--Messrs. Anderson, Breckenridge, Cocke, Dayton,
Ellery, Dwight Foster, Hillhouse, Howard, Logan, Jonathan
Mason, Morris, Ogden, Olcott, Sumter, Tracy, White, and
Wright.

NAYS.--Messrs. Baldwin, Brown, Chipman, T. Foster,
Franklin, Jackson, Nicholas, Sheafe, and Stone.

On motion, to amend the resolution, by adding, after the word stenographer, "He having given bond in the sum of ----, with two sufficient sureties, in the sum of ---- each, for his good conduct," it passed in the negative--yeas 10, nays 18, as follows:

YEAS.--Messrs. Chipman, Dayton, Dwight Foster, Hillhouse,
Howard, Morris, Ogden, Olcott, Sheafe, and Tracy.

NAYS.--Messrs. Anderson, Baldwin, Breckenridge, Brown,
Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson,
Logan, S. T. Mason, J. Mason, Nicholas, Stone, Sumter,
White, and Wright.

On motion, to agree to the original resolution, amended by adding the words "or note-taker," after the words stenographer, it passed in the affirmative--yeas 16, nays 12, as follows:

YEAS.--Messrs. Anderson, Baldwin, Breckenridge, Brown,
Cocke, Colhoun, Ellery, T. Foster, Franklin, Jackson,
Logan, S. T. Mason, Nicholas, Stone, Sumter, and Wright.

NAYS.--Messrs. Chipman, Dayton, Dwight Foster, Hillhouse,
Howard, J. Mason, Morris, Ogden, Olcott, Sheafe, Tracy, and
White.

So it was _Resolved_, That any stenographer, _or note-taker_, desirous of taking the debates of the Senate on Legislative business, may be admitted for that purpose at such place, within the area of the Senate Chamber, as the President shall allot.[63]

WEDNESDAY, January 6.

_Judiciary System._

Mr. MASON called for the reading of the Message, which was in part read; when the further reading of the whole document was suspended, and that part only read, which relates to the Judiciary System.

Upon which Mr. BRECKENRIDGE, from Kentucky, rose, and stated that two days ago he had given notice that on this day he would submit to the consideration of the Senate two resolutions respecting the Judiciary Establishment of the United States. As, however, those resolutions were not necessarily connected, and as they might be distinctly discussed, he would at present confine himself to moving the first resolution; without however foreclosing to himself the right of submitting the second after the disposition of the first. He, therefore, moved that the act passed last session _respecting the Judiciary Establishment_ of the United States be repealed.

[This is the act which created sixteen new circuit judges.]

FRIDAY, January 8.

_Judiciary System._

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."[64]

Mr. BRECKENRIDGE 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 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 South-western 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 Kentucky, non-resident land claimants have gone into the federal court from a temporary convenience: because, until within a year or two past, there existed no court of general jurisdiction co-extensive with the whole State. I find, too, that of the six hundred and odd suits which have been commenced there, one hundred and ninety-six of them have been prosecutions under the laws of the United States.

In most of the States there have been prosecutions under the sedition act. This source of litigation is, I trust, for ever 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.

The judicial powers given to the federal courts were never intended by the constitution to embrace, exclusively, subjects of litigation, which could, with propriety, be left with the State courts. Their jurisdiction was intended principally to extend to great national and foreign concerns. Except cases arising under the laws of the United States, I do not at present recollect but three or four kinds in which their power extends to subjects of litigation, in which private persons only are concerned. And can it be possible, that with a jurisdiction embracing so small a portion of private litigation, in a great part of which the State courts might, and ought to participate, that we can stand in need of thirty-eight judges, and expend in judiciary regulations the annual sum of $137,000?

No other country, whose regulations I have any knowledge of, furnishes an example of a system so prodigal and extensive. In England, whose courts are the boast, and said to be the security of the rights of the nation, every man knows there are but twelve judges and three principal courts. These courts embrace, in their original or appellate jurisdiction, almost the whole circle of human concerns.

The King's Bench and Common Pleas, which consist of four judges each, entertain all the common law suits of 40_s._ and upwards, originating among nine millions of the most commercial people in the world. They moreover revise the proceedings of not only all the petty courts of record in the kingdom, even down to the courts of piepoudre, but also of the Court of King's Bench in Ireland; and these supreme courts, after centuries of experiment, are found to be fully competent to _all_ the business of the kingdom.

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. The language of the constitution is very different when regulations are not left discretional. For example, "The trial," says the constitution, "of all crimes '(except in cases of impeachment) shall be by jury: representatives and direct taxes shall be apportioned according to numbers. All revenue bills shall originate in the House of Representatives,'" &c. 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. The Judiciary Department is so constructed as to be sufficiently secured against the improper influence of either the Executive or Legislative Departments. The courts were organized and established by the Legislature, and the Executive creates the judges. Being thus organized, the 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. The first of these checks, which protects a judge in his office during good behavior, applies to the President only, who would otherwise have possessed the power of removing him, like all other officers, at pleasure; and the other check, forbidding a diminution of their salaries, applies to the Legislature only. They are two separate and distinct checks, furnished by the constitution against two distinct departments of the Government; and they are the only ones which are or ought to have been furnished on the subject.

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.

The construction obviously is, that a judge should hold an existing office, so long as he did his duty in that office; and not that he should hold an office that did not exist, and perform duties not provided by law. Had the construction which I contend against been contemplated by those who framed the constitution, it would have been necessary to have declared, explicitly, that the judges should hold their offices and their salaries during good behavior.

Let me not be told, sir, that the salaries in the present case are inconsiderable, and ought not to be withheld; and that the doctrine is not a dangerous one. I answer, it is the principle I contend against; and if it is heterodox for one dollar, it is equally so for a million. But I contend the principle, if once admitted, may be extended to destructive lengths. Suppose it should hereafter happen, that those in power should combine to provide handsomely for their friends, could any way so plain, easy, and effectual, present itself, as by creating courts, and filling them with those friends? Might not sixty as well as sixteen, with salaries of twenty thousand, instead of two thousand dollars, be provided for in this way?

There is another difficulty under this construction still to encounter, and which also grows out of the constitution: By the constitution, a new State may be formed by the junction of two or more States, with their assent and that of Congress. If this doctrine, once a judge and always a judge, be correct, what would you do in such an event, with the district judges of the States who formed that junction? Both would be unnecessary, and you would have, in a single State, two judges of equal and concurrent jurisdiction; or one a real judge, with an office, and another a quasi judge, without an office. The States also forming such junction, would be equally embarrassed with their State judges; for the same construction would be equally applicable to them.

Upon this construction, also, an infallibility is predicated, which it would be arrogance in any human institution to assume, and which goes to cut up legislation by the roots. We would be debarred from that which is indulged to us from a higher source, and on subjects of higher concern than legislation; I mean a retraction from and correction of our errors. On all other subjects of legislation we are allowed, it seems, to change our minds, except on judiciary subjects, which, of all others, are the most complex and difficult. I appeal to our own statute book to prove this difficulty: for in ten years Congress have passed no less than twenty-six laws on this subject.

Mr. J. MASON, of Massachusetts, said, it would be agreed on all hands that this was one of the most important questions that ever came before a Legislature. Were he not of this opinion he would not have risen to offer his sentiments. But he felt so deep an interest in the question, and from the respect which he entertained for the district of country he represented, he deemed it his duty to meet the subject, and not be satisfied with giving to it his silent negative.

The constitution, in the construction of the Executive, Legislative, and Judiciary Departments, had assigned to each a different tenure. The President was chosen for four years; the Senate for six years, subject to a prescribed rotation biennially; the House of Representatives for two years; and the Judiciary during good behavior. It says to the President, at the expiration of every four years, you shall revert to the character of a private citizen, however splendid your talents or conspicuous your virtue. Why? Because you have assigned to you powers which it is dangerous to exercise. You have the power of creating offices and officers. You have prerogatives. The temptation to an abuse of your power is great. Such has been the uniform experience of ages. The constitution holds the same language to the Senate and House of Representatives: It says, it is necessary for the good of society that you also should revert at short periods to the mass of the people, because to you are consigned the most important duties of Government, and because you hold the purse-strings of the nation.

To the Judiciary: What is the language applied to them? The judges are not appointed for two, four, or any given number of years; but they hold their appointments for life, unless they misbehave themselves. Why? For this reason: They are not the depositaries of the high prerogatives of Government. They neither appoint to office, nor hold the purse-strings of the country, nor legislate for it. They depend entirely upon their talents, which is all they have to recommend them. They cannot, therefore, be disposed to pervert their power to improper purposes. What are their duties? To expound and apply the laws. To do this with fidelity and skill, requires a length of time. The requisite knowledge is not to be procured in a day. These are the plain and strong reasons which must strike every mind, for the different tenure by which the judges hold their offices, and they are such as will eternally endure wherever liberty exists.

On examination, it will be found that the people, in forming their constitution, meant to make the judges as independent of the Legislature as of the Executive. Because the duties which they have to perform, call upon them to expound not only the laws, but the constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the constitution. For this reason it was more important that the judges in this country should be placed beyond the control of the Legislature, than in other countries where no such power attaches to them.

The constitution says: "The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

Thus it says, "the judges _shall hold_ their offices during good behavior." How can this direction of the constitution be complied with, if the Legislature shall, from session to session, repeal the law under which the office is held, and _remove the office_? He did not conceive that any words, which human ingenuity could devise, could more completely get over the remarks that had been made by the gentleman from Kentucky. But that gentleman says, that this provision of the constitution applies exclusively to the President. He considers it as made to supersede the powers of the President to remove the judges. But could this have been the contemplation of the framers of the constitution, when even the right of the President to remove officers at pleasure, was a matter of great doubt, and had divided in opinion our most enlightened citizens. Not that he stated this circumstance because he had doubts. He thought the President ought to have the right; but it did not emanate from the constitution; was not expressly found in the constitution, but sprang from Legislative construction.

Besides, if Congress have the right to repeal the whole of the law, they must possess the right to repeal a section of it. If so, they may repeal the law so far as it applies to a particular district, and thus get rid of an obnoxious judge. They may remove his office from him. Would it not be absurd still to say, that the removed judge held his office during good behavior?

The constitution says: "The judges shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Why this provision? Why guard against the power to deprive the judges of their pay in a diminution of it, and not provide against what was more important, their existence?

Still, if the gentlemen would not agree with him as to the unconstitutionality of the measure proposed, he would ask, was it expedient? Were there not great doubts existing throughout the United States? Ought not each gentleman to say, though I may have no doubts or hesitancy, are not a large portion of our citizens of opinion that it would violate the constitution? If this diversity of sentiment exists, ought not the evils under the judiciary law to be very great before we touch it? Ought we not to aim at harmonizing, instead of dividing our citizens? Was not the constitution a sacred instrument; an instrument ever to be approached with reverence; an instrument which ought not lightly to be drawn from its hallowed retreat, and subjected to the flux and reflux of passion? But where is the evil complained of? This system was established only last session; scarcely had it been yet originated; scarcely had we tried it on its very threshold; where then the necessity of being so pointed, as to destroy a system scarcely formed three days ago? Does not this manifest precipitation? Will it not manifest more magnanimity, more rationality, to abide by it until we try it; instead of taking up a pen and dashing it out of existence?

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.

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. Without inquiring into the accuracy of a statement made by the gentleman respecting the courts of England, in which, I apprehend, he will find himself deceived, let me ask what would be the effects of the old system here? 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. Can it be possible that men advanced in years, (for such alone can have the maturity of judgment fitting for the office;) that men educated in the closet--men who, from their habits of life, must have more strength of mind than of body; is it, I say, possible that such men can be running from one end of the continent to the other? Or, if they could, can they find time to hear and decide causes? 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. It had been said, and truly, too, that Governments are made to provide against the follies and vices of men. For to suppose that Governments rest upon reason is a pitiful solecism. If mankind were reasonable, they would want no Government. Hence, checks are required in the distribution of the power among those who are to exercise it for the benefit of the people. Did the people of America vest all power 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 background 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.

Let us then, secondly, consider whether we have constitutionally a power to repeal this law. [Here Mr. MORRIS quoted the third article and first section of the constitution.] I have heard a verbal criticism about the words _shall_ and _may_, which appeared the more unnecessary to me, as the same word, _shall_, is applied to both members of the section. For it says: "the judicial power, &c. _shall_ be vested in one Supreme Court and such inferior courts as the Congress _may_, from time to time, ordain and establish." The Legislature, therefore, had, without doubt, the right of determining, in the first instance, what inferior courts should be established; but when established, the words are imperative, a part of the judicial power shall vest in them. And "the judges shall hold their offices during good behavior." They shall receive a compensation which shall not be diminished during their continuance in office. Therefore, whether the remarks be applied to the tenure of office, or the quantum of compensation, the constitution is equally imperative. After this exposition, gentlemen are welcome to any advantage to be derived from the criticism on _shall_ and _may_.

MONDAY, January 11.

_Apportionment Bill._

The Apportionment bill, as received from the House of Representatives, was taken up. This bill fixes the ratio of representation at one member for every 33,000 persons in each State.

Mr. WELLS moved to strike out 33,000, his object being to introduce 30,000, for which he assigned his reasons at some length.

On this motion a debate of some length ensued, in which the provisions of the bill as they stood were supported by Messrs. JACKSON, MASON, WRIGHT, and COCKE; and opposed by Messrs. WELLS and HILLHOUSE.

Mr. WHITE, of Delaware.--Believing as I do, sir, that the minds of gentlemen on this floor are thoroughly made up as to the present subject, and that any observations now to be offered will not influence a single vote, but merely occupy the time of the Senate to no useful purpose, I shall ask your indulgence but a few moments. I cannot, sir, sit quietly and see this bill reported by your committee, meditating as it certainly does a manifest injury to the State I have the honor in part to represent, pass into a law, without doing more than oppose to it a silent negative; without holding up my voice and protesting most solemnly against the extreme injustice of the measure. If, sir, this bill passes in its present shape, there will be left in the State of Delaware twenty-eight thousand eight hundred and eleven people unrepresented in the popular branch of their Legislature. Gentlemen may say, that this is only a fraction, and that in a general apportionment of representation, fractional numbers are unavoidable. Sir, I acknowledge it is only a fraction, but it is a fraction that includes one-half the population of that State, and amounts, even upon the present contemplated plan, to within four thousand of the number sufficient to gain another Representative. Sir, twenty-eight or thirty thousand would, to one of the large States, be an inconsiderable fraction. Apportion that number, for instance, among the twenty-one Representatives from Virginia, and you give to each member but a fraction of about thirteen hundred; whereas from Delaware, there will be but one representative, and over and above his legal number a fraction of near twenty-nine thousand people unrepresented. Is this fair, sir? Is this equitable? I ask, gentlemen, is it not unfriendly and wrongful? And can it be possible, sir, that the transcendent omnipotence of a majority have fated, if I may use the expression, this injustice upon a sister State? Suppose, sir, Delaware to have but one Representative and Virginia twenty, a fraction of five thousand to the former is equal to a redundant number of one hundred thousand to the latter; or take, sir, the present case, and you will find that the fraction of twenty-nine thousand in the State of Delaware, apportioned upon the representation, is at least equal to a redundant number in the State of Virginia of three hundred thousand. If, sir, the divisor is fixed at thirty thousand, Delaware will have two Representatives; her weight, then, in the other House, will, in relation to Virginia, be as one to twelve, but if she is compelled to submit to the divisor of thirty-three thousand, you allow her but one Representative; you deny her nearly one-half her rightful influence, and place her on the floor of the House of Representatives in a relative situation toward Virginia, as one to twenty-one. Sir, an additional Representative to any of the larger States is not of the same consequence as another would be to Delaware. To Virginia, for instance, one is but the twentieth part of her force, to Delaware it would be one-half her force. Gentlemen may say that Delaware is the smallest State; but let it be remembered, sir, that her rights are equally sacred with those of the largest States; and although her citizens are not so numerous, yet, sir, their State sovereignty and other constitutional rights are quite as dear and valuable to them, as the blessing can be to any other people; and, let me add, sir, she is among the oldest States; her history travels back through the bloody scenes of your Revolution; she dates her era at your Declaration of Independence, and I am proud to say, and can do so without detracting from her neighbors, in proportion to her population, her resources, and extent, during the severe contest for American liberty, she contributed, in blood and treasure, as freely to its support and permanent establishment, as any State in the Union.

Sir, the doctrine urged by some gentlemen that the divisor of thirty thousand will increase the House of Representatives to a body too large and unwieldy for the convenient and ordinary purposes of business, seems to me totally without foundation. The observation and experience of every man must be sufficient at once to satisfy him that this cannot be the consequence; we have before our eyes, sir, examples that prove directly the reverse. This divisor will give to your House of Representatives but one hundred and fifty-seven members; the State of Virginia has in the popular branch of her Legislature one hundred and eighty members, and we have not been told that it is too numerous. The British House of Commons, before the union with Ireland, consisted of about five hundred and fifty members, and we heard no complaint of the numbers; on the contrary, sir, the nation wished a fuller representation; and it is from that House, too, sir, that, according to this logic, must be so extremely riotous and disorderly, we have drawn most of the rules that govern the proceedings of this honorable body.

Again, sir, the nature and spirit of your Government requires a full representation in the Legislature. It is a Government that must depend alone for its support upon the affections of the people; and the best security for their affections is to extend to them, upon as large a scale as comports with the public safety, the freedom of choice, and right of representation. In so extensive a country as this, many parts of which are thinly inhabited, and the election districts consequently including vast tracts of territory, it must often happen that the electors are entirely unacquainted with the person for whom they vote; but if you increase the representation, you reduce the size of the election districts; you bring the candidate within the very neighborhood of the electors; they see him, they know him; they are better enabled to estimate truly his character, and judge of his capacity and disposition to serve them. This, sir, will secure in a great degree, the constituent from imposition, and attach to the Representative a higher and more immediate responsibility; it will inspire the people with confidence in your Government, and induce them more cheerfully to acquiesce in your laws. But, above all, sir, the divisor of thirty thousand leaves throughout the United States a less aggregate of unrepresented fractions than any divisor you can take; less, permit me to say, sir, by one hundred and sixteen thousand, than the one contemplated in the bill; and I am sure gentlemen on all sides of the House wish the country as fairly represented as possible. To my mind this is a most conclusive argument in favor of the divisor of thirty thousand.

The question was now taken on the motion to strike out 33,000, and lost--ayes 11, noes 15.

Mr. MORRIS then moved, and Mr. TRACY seconded the motion to add, after "one representative for every 33,000," the words "and one representative for every fractional number of 27,000 persons." The number 27,000 was used to avoid a violation of the constitution, which prohibits the allotting to each State more representatives than one for every 30,000. Thus, in the case of Delaware, the ratio being 33,000, Delaware would be entitled to one member for 33,000, and one for the fraction of 27,000: both which numbers would amount to 60,000; which last number entitled a State to two members without violating the constitution. This motion was opposed by Messrs. WRIGHT and ANDERSON, and was lost--ayes 10, noes 15.

On the question to agree to the final passage of this bill, it was determined in the affirmative--yeas 23, nays 5, as follows:

YEAS.--Messrs. Anderson, Baldwin, Breckenridge, Brown,
Chipman, Cocke, Colhoun, Dayton, Ellery, T. Foster, Dwight
Foster, Franklin, Howard, Jackson, Logan, S. T. Mason, J.
Mason, Morris, Nicholas, Sheafe, Stone, Sumter, and Wright.

NAYS.--Messrs. Hillhouse, Olcott, Tracy, Wells, and White.

The bill was then read a third time, and passed.

TUESDAY, January 12

_Judiciary System._

The Senate resumed the consideration of the motion made on the 6th instant, "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. JACKSON, of Georgia.--I rise with an impression of awe on the present question; for we must tread on constitutional ground, which should not be lightly touched on, nor too hastily decided. Every step we take ought to be well examined, and our minds convinced before we give that vote which cannot be recalled, and which will fix a principle on Legislative construction, which, perhaps, will prevail as long as we remain a nation.

In the early stage of this discussion, I had almost determined to say nothing, and am at present determined not to say much; but a justification of the vote I shall give, has impelled me to offer my reasons for it to the State I represent; and I have made up my mind, decidedly, to vote for the resolution before you, if I cannot be otherwise convinced.