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. Mr.v crecKcnnoge. is wa-v
of me, I prrff -fa a l;bindmi&
rtfolution now under confideratiort, to, afligti
my teafons for wifhing repeal pf this law.
This i foall do nd endeavour
fkew,
-TJiaiflTthe taw is unneceflVt and im-
proper and was fo at its paffage and, .
a. That the Courts; and Judge created
bxiV p4 jjvgh't fo balie,;,;'
I ft. That the art under cotitiaeNtioo,
; uniewirtynd;twpropeN'Jtl)r
"rnrnd .jjp' itjScjf lis, o f poe, v No. iV
creafc of courtf or, fudget could, be uaceffary,
o4,jyIlifible, unlefs the exi fling court and
jtie weie jnConipetent to the prompt aod
poger diftharge of Af dutiea confined tof
'themTo bold out'a ihevr of jitigation,,
wh:o io faft little ciiAa, muft be iospolitic j
aod to tpukiply rxpeufiwe fyftcms, a4 cres
tt HoiU of expenfiye offiteri, without hav-;
ing xper,Upced fnailalaeceflSt for tfeem'
wtt."W'w'0f.l pbblic tnr
The document before ni (hcirictbatat
the pallage , of thia a& the exiftipg'courtt,
not only trom toetr numpcr, out iram toe
fuIttjUeuepding before werv-CaJly
eo'tyto ipeeij defi of IhoV
C0
'Tbctudicut oowVrf clvi to 'tW fffcf al-i (wfi
coBrr pretiiiMndsdf tb.:ojifl;v
iitioo tcT embrace tXclufifelr, ifutjtdf F
mgiiion, wnicn couia wiia prepritcjr, pr-
Kii wiin ttie. uate courts. s, s. ;!J;,l-
Tbeirjiirifdiclion was iniepdcd pr!ncipt'
ly to extend to great national and foreign,
concerns. .Except cafes anDnc under the
laws of the United States.. I do mt at prc
rept recolleft," but three Jr four Vmds ,?os
ftvbich -their power! extend to futicfls of
litigitioo, in which private perfona poly are
concetned. And can It be poflible, that
With a jorifdidiion embracing .f :fmaHi
portion of private litigation, iu CTcat part
of which tbe (late courts oueht and ought,
io participate, that we can Hand fn -nttd of
9 juagesj ana expena n juaicuif , rcgu,
Ulions rhe annual fum of 1 37,260 dollars
I No 'other. coiintrfi' wbole , regulations I
have any knowledgi of, furoifbtsan example
of a fylfent fo prodigal and exteniivesr In
Englaiid,' wbofs cpuita are tbe boad. and I i
r 1 . . . i- . ' Lt.t. " :t. i- . (
iaiattoo-to xttriiy or me , iiguis ot inc.,
natioo. everv'raao knowsc tbere are but 1 a
judjpfS acd jjpii(icipal'vouits.: ThtfexCU'i
crobraci in then .original or appellate jurif ,
difiion slmoll the ' whole circle of h mau
fhvfirK f tieb.cbccksv which prptccta-f I dtf whiul ofhingi io rangt tbcmyfi
:iHiH5fn mi viitc uumig guoa otnaTior 1 wiiat name 10 fiie loemi i bt
"Jt"c" frtnaeni wy, .WHO WOUKJ O ;
tbiejia,c oljyr ).Ul power of reoj'oV-:
ifcg Jiiai -like, all other Officers at peurt t
nu, loeoincrjcnecK roroiooing a diminution
of tljeir falanes, applies to tbt legifluMf en
jf.5A 7 tiryaie two feptrate and 'diflinfil
tchf (ks furnifbed by the conllitution againll
Aw oiuincj aepartnents ot the govern.
Wenrjrand they ate the only ones which
W'pr ought to havebe'eu furnifbed ou the
' vcut.becaufe ibe con (I it ut ion declares ,
rta- a judge ihali, hold bis office during
jeoa vevavtar, can 11 De tortured to mean,
fit he Ihali bold .bi effice after it is abo-'
Siflied. ? Can it mean, that his tenure ftiould
.' limited by behaving well in'.an office,
which did not exill I Can it mean that an
office may exill although', it duties'are ex ' ,
lit) A I Can it jnean, in Ihort, that the fha-
concerns.
Aiitt fbtwshatlfet t y
June laltrtnereverc ocpcno;n jn au ine
Circuit , Courts, (that of Maiylsnd only
excepted wbofc docket w have r?ot been
furnilbtd with,) 1539 fuitfc . It (hews that
8278 fuits of every .dtfeription have come
before tbofe courts, in 10 years and up.
wards. "From .this it appears, that the an
nual average amount ot iuus has been abjut
: 8oo.;:.:.----U---t---:
But fundry contingent things have con.
fpiredto fweU the circuit couit. dockets. In
Maryland, Virginia and in all the foutbern
and touth.wcitci.a fiates,' a great number of.
fuits have" Ur en; brought-by Brilifli "Credit s,
or : tin's fpecies of coptrovcrfej i nckily aj
...,JiiPfyiws
f welled by. profecutwns, io conftqueace of
the wcflera infurreftion, by tb.edifturbancea
in." Butks and Noihmpton counties t and by
the Sedition AQ., Tbefe I fiad amount i.
this ftate.40 14ptmtiY--?J-:'-4l ;,-'.. ;.
In KentiKky, uou- refident land claimjnta
have gone into tbe federal Couit from, a
ttKpoiary convenience j becaufeYuntil wit h
in a yeatkpr two pall, there exited 00 court
of crnc-rjr jmiWiftion co extenfive with the
whole State. 1 find too, that of the fix
hundred aqd odd fuits1 which have, been
commenced there, 196 of them, have been
prclccutioDS under the laws of the .United
S tateSi 'C?-r'. t' i ' W , ' .
Irv moll of the States there have been
proTccutions under the tieJition Trjis
fouice of litigation is I trull foitvcr dtjed
up AndialUy in all the dates a nut1cr
of fuits hd arifen under the excife taw 1
which fonrce qt46aiidMettyt ' I b,cic,
before thi8teffian,t,erQii)atc be alio dried
up. , -.''.''f:'vv'V"''':V'v.
But this fame document difclofes ano i
ther impoitant faft t. which is, '"that never.'
thcltfs all tbefe untoward and temporary
fources of federal adjudication the fuits in .
thofe courM are, Jcrrtafmg t for from' the
dockets sxhibited "(except Kentucky, and
Tcnnrffce whoft fuits ar fummed up in the
agiregte) U appears, that in 1795 there ,
were ia74; and in 1800 there were 637
fuits commenced 1 (hewing ,x decreafe of
587 funs ; f ;., 1.; 'rl
. Could it be JiifceflTiry then rto increafej
courts when fuits were decreafing i Could
it bo tieccflary to mull !pl judges, when
ibeir duties were diminilhipg r And -will 1
uc juuiucn mcreiurc m anirmmg, tnat
not
the law was unneceftari, and that Consrrels
acltd under a mi taken impreffion, , when
they multiplied, courts and judges at o'
time wben litigvion ,wa actually decreaf
ing. '. ,: ' -.'-i- "
B ut, Sir, the decrafc of iufieeft gdeit
fmall wa in fixirg my opinion olnithis'fob-
J?WI,m incJined o. thinks tliat fo far?
"from their having been a peceflity tat this'
time for an incteafc of coxrt and )udgcs ? -that
the time never will arrive, when Ame-:
iica will ftand in need of 38 federal judges.
Look Sir, at your conllitution and ft the
judicial power there configned to federal
Courts, and fert iuPyafk yourfelf, can there
be fairly extracled from thofe powers fub-!
jecta of litigation fufSoicnt for 6 fuprme&
32 inferior cou,t judges ?T me it ap 1
.pears impuffible. 5..:,-,,., : .v-:
J ':.:..!.':.'. !.'" ' ' , ''.:'' :
fThe king's bench and common pleat,
whh confilt of 4 judges each, entertain all
fjae fOsninort. law fuits of 40s. and upwards
oriartaigarnong 9 miljions of the molt
commftcTaJ people in tbe world. They
moieover rcvife the proceedings of not only
ill. the petty court's of recoil io the kingdom
. r r ,v.-i .
even oown 'to. inccouris 01 rieponure ; diiv
aifo -of the court of Kiags bench; io lie.
land : aua tnee.44ipreme. courts, arter cen
turies ol yentnent, are found, to be fully
competent to all tbe ballnefs of the king
dom. , . j ' . ... . -,
1 will now inquire into the power of con "
grrfg, to put down thi'Te "additional courts
and judges, .: '."'.- vj '
; 1 ll. As to the courts. Congrefs are era- -powered
by theconftitutioii '' from time, to'
time to ordain and eftahlifli inferior courts," :
I'be, aft ri,pw., under cenfidejatiun, is a le
kiuitive imtruBloh of this claufe in the cn.
ftiimidiviaaXcoogrefc as well.Tbe fettled 'OH B6, Snd wecannot cakuiate
as create tbefe judicial olficeri ; . becaufe, it
does exprclsly iu the 27th feftiop of the al,
abolljh the then exifling inferior courta", for
the purpofi of making way for the prefent.
This conftruclion I : contend is cot reel :
but it is equally1 pertinent to my '. objedt,
whether it be, or be not. If it be correct,
then the" prefent inferior courts may be a.
balifhed aronfthulionBlly as the laft if
it be not then the law for. abolifhing the
former courts, and eftablilhing the prfent,
was noconltitutional and conUquectly re-
pe i b:. - r :-; .'-'
But independent of this l-giflative con
ftrudion on which 1 do not found my opin
ion, nor mean to tely my argument, there
is little doubt indeed, in my mind, as to the
power pfcongryfs on this law. The ill
ftAion of ,ibe 3d article, ycttsjhe judicial
power cf the United States in one (uteme
court and fuck inferior courts as congrefs
may from time to lime, ordain and eftablifli,
iiy this cfaufe congiefi itioj from time to
lima . eftablifti inferior couits ; but it is
cleaily a difcrctional power, and they may
not ellabliuY them- The language of the
conllitution is very different when regula
tions are not left difcrctional. For exam
ple ."fThe tiial, fays the conflitutiou, of
all ciimes, (txeept iricafei ...of impeach-,
ment) lai be" by jury: Representatives
and direct taxes Jball bt applied accoiding
ta numbers. JfAH feveTiBe bills flxtll origin
ate in the hoi$e of reprefentative's,. &c.,It
would therefore ia my view be a per.verfioa
not only of language, but of intellect, to
fay,, that although congrefs may from time
to time cflablttli inferior couits, yet when
etlablilhedi thitt they hall not be-aboliflied,
by a fubftqueijt congrefs pofRfftng equal
power. It would be a paiadox in ligifla
tion. . ' .. '( ,. -.i .-. ..
t&, j As to the judges. r-The judiciary
department ie fo conilructed as to be fuffici
ently' fecured agfainll 'the Improper influence
of either the executivC"or Itgjflatijiede
partments. rr .TbcVvcoiiit': are organized
and " clUblifbed by the leg'flaturc, , and
the executive creates the judgs. , Befng
thas organized, the conftitution affords the
proper, checks to fecure their honefly and
independence in office. It declares they
(hall hot be removed from rjflct during good
behavior f nor- theftf falarieg diminifhed dur
ing their continuance in office. ' From this it
'refults, that a judge after his appointment;
ia totally out of the power of the president,
and his (alary fecurcd againit Jcgiflative du
dortfwit, the' judie, can rcoiain : when
tlie fwbftaiicf , to Wit, the office is removed I
It mull have intended all tbefe abfurditiea.
ir it mult admit a condruflion which will
Bvoiu tpenj. '..-"..
. That cootlrulioo obvioufly is, that a
judge. Ihould hold an extUti? rffice, fo lone
p oe w, uib uuiy . iu iiiai ,uincc ana not-.
)bat . he Ihould hold en office that did not
exift, and perform duties no! provided . by
Up. Had ttie conllructiqn.wbxh 1 contend
againtt beep ccntemtlated by thofe who
fri'med the conllitution, it would have been
ojeceffury to have declared xplicitlv. that
; m 1 ... . . - . -
judge? Ihould hold their oihees and ' falanes
rogg;ooa oenavior.
Spch a conflruftidn is not only iirecon
cilable with rehfon and propriety, but is
repugnant to the piinciplcs pf.tl conftitu..
lion. It is A principle of our conllituti
oii, as well as of common honeily, that no rand indcpendeiice.' while exeicifinit Ki f.
man man recieve puptic money, but in con,.. I hce. The idea was iitroduced in Enelaftd
a.lcrayon ot publx1 ..lcrytcee. ; inepure J to couhteraft the influence of 'the crown
oraces toeretoreaic not permitted bT oor over the ludzes 1 but f the cnnnr,.A,V
iairor conttitution. j this contlrudli. I now cooteridertffa-' iall r.uIL,..;U
ffcompietc tinecirre officea wijl . be. Crea J 1 Ittonc miflaken imitation pf this our favor
tea ; liotts ot conjtitutwr peners wj
bet areac.
koowledgcdby the letter, fpiittr genius pf
oiir : conttttut roDk and. aic.. to .'roe non de
scripts. ;... y.v .. m .
There is anotbet difficulty under thiar
conftroclion flill to eccouiuer, and whicb
alfo grows out of (lie conttitution -By tber
cooiutntion, a new Hate may be formed by
the conjunction f two or more Hates, with,
their aflent and that ot congrefs. 7 Is this
docYrinc, once a judge and always a judge
correct ; what ( would too do in fach aa-
cvcui, wiiu iuc uiimci juoges or me uaic
wbo formed that junction I Both would be
unnecefTary and ; you would have in a fingle
itate, t wo judge ot equal - and concurrent
jurifdiiftion j or one a real judge with an,
olnce, and another s qvyl judge without an
omce. The Hates alio forming fuch iudcTioo
would be equally "embarraficd : with their
date judges i tor the Tame coo(lruclioa.Quld
be equally .applicable to them 7
Upon the conltruction alfo. ah infallibihtr
is predicated, which it would be arrogance
in any human inftitutioH to a(Tume& which
goes to cut up leeiflationbv the root.'. We
fbould be debarred-from that, which is in
dulged to us from a higher fource, and on
furjef((s of higher concern than legif)atioa
1 mean a retraction trom, and correction, of
.our errors. On all.other fub efts' of keif.
lat ion we ate allowed-.it fecras to cbanire
our minds, except on judicial fubjects, which
of alt others i moft complex and difficult.
1 appeal to our own- Statute book to Prove
this difficulty ; foria 10 years congrefs
have palled no ltfs than 26 laws on thia
fdhjeft. .;! ;,. .;v'Vi
J conceive fir, that tbe tenure by which.
judge bold bis officer ia evidently hot- .
tonitd on the idea of fecuring his honcfty.
-' : f
- m
'- " 'if ri
'" i ' V' '
. i f t i)
how lor e This is rrallv Creatine a new
fpecies of public debt j not like any other of
our debts, we cannot dikharge the punci-
pal at any fixed time. It is worfe than the
deferred flock ; for on that you pay an an-
nuai loteren oniy ana me principal is re
deemable at a given period. . But here, you
j b annual princija in& that principal
irredeemable except by tbe 'will of provi
dence. It may fuit countries where public
debts arc conbdeied as public b'effings j for
in this way a people might loop become
Juperlativcly biclled indeed.
Let me not be old, fir, that the falariea
in the prefent cafe arc inconhdtrablepd.
ought"iiono7be withheld ; and 'bat the
doclnne is not a dangerous cne, 1 1 anfvrer,
it is the principle I contend -againit, ( and if
it is heterodox tor one dollar, it is equally fo
lot. a million tiut I cor.Und tne punciplr.
sf ohcc admitted, may be extended to do
ftroftive lengths. Suppofc it (hould In re-
after happen, that thofe in" power Ihould
combine . to provide handfonuly for their
friends, couly any way fo plin, eafy and
ttleduai prelent itielf, as by creating courts,
and filling them with thofe fiiendi ? Might
not 6c at well as 16, with falaries of twen
ty thoufand, in Head of two tboufaod dol
lars, be provided foe in this way ?.
. The thing 1 truft will not happen. It is
prefuming a high degree of coiruption ;
but it might happen under the co oil ruction
contended for as the conllitution prefumes
corruption may happen in any department
of the government, by the checks it has
furniihed againfl it j and as this conftrucli
on does open a wide door for corruption,
it is but fair reafoning to mew the dangers
which . may growiut of it j for in the con
ftruclion of all inttruments, that which will
lead to inconvenience, mifchief or abfurdity
ought to be avoided. This doctrine has
Jr another difficulty to reconcile. After the
law is repealed, they are either judges or
be iropeached j but for what r ror mal-fea-fance
in office only. How, J would afk,
can tbey be impeached for mal feafance in
office, when their offices arc abolifhed ? they
are not officers, but Hill they are entitled
id the emoluments annexed to an office.
Although they are judges, they cannot
be guilty of mal-feafance, becaufe they have
no office. , They are only quafi judges fo as
regards the duties, but teal judges io far as
regards the falary. It mud be the falary.
then and not the dune which temtitute a
ing, what they have not, a iadicioligarubvt-
for there, their judges sre removable by a
joiui vote of Lord and CommonsHere
ours are not removable, except for mal fea
lance in office u which r mal-feafance could
not becemmitted, as tbey would have ab;
office,. .j.k ,. n'r.i:;. . -7-,-'-.. H
Upon the whdle . fir, as all courts under
any ftee government mutt be created with
aq eye to theadmlniflration of iuftice'oolv t
and not with any regard to the advancement'
01 emolument,-of individual men 1 a we
have 'undeniable evidence, before lis. 7 that
the creation of the Courts now under confi
deration was totally unnectffary j and as no
government can I apprehend, ferloufly de
ny that this legflature has a right to leoeal '
a law ei afled by a preceding one 4 will.
in any event, di.cbarge our duty by repcaK; .
lllg the (aw ; and. thwrctjy SOIttg aft III tIXt
pofjocorfeftthe evil. 'If the judges are
iutitlcd to their falaiics, under the confti-'
tution, our tepeal will not anea them' t &
they willno doubt rcfoi t to their proper
remedy : For where there is a conititution-i
al 1 ii'ht , there mti ft be a remedy, ' '
A tier Mr. . xSrcckennoVe clofed his re.
maiks there was a considerable paufe, when '
the prelident again read the refolution, and;
enquired if the houfc was teadr . for the
que (lion. ... , si ' vj'J'i
Mr. OlcotJ,of New Ha mp (hi re, thought.
the fubjeft .s of fo much importance at '
to merit ful ther confideration. " ' 7 ;
Tiie 'arguments of the gentleman fVnat
Kentucky however ingenious, had not con
vinced him that the law ought to be repeal
ed. It bad not ' -risen like a molhroom ia
the night, but the principle on which it
rcfled had been fet' led after mature reflecti
on, ne ttiougtit itt would be extraordinary
before any inconvenience bad been difcoverr
ed, to ret fuch a law aftde. For thefe rca
foo Mr.; O,; movpd, -ba: poftponement of
tne contiaeration.ot.tne quenion.
Mr. Cecity of Tenneffee. This aft it
faid to. be ewirsly experimentttl, and"- it t
further faid, that no inconventeneies had
arifen under it. He thought ferious in- .
convenience bad arifea. The inconveni
ence of paying 1 37,000 dollar a year wa
truly fenous ; and it was an inconvenience
which ought to be got rid of as foon a pof.
fible. It was expefted that gentlemen op.
pofed to the refolution would come forward,
with their argument againfl it. - If, how
ever, they had so argument to ufe, be
thought bis friend from Kentucky bad
brought forward rcafona fo cogent and ex
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