was no gentleman who felt that deference more | than myself, nor should I have ever hazarded a change upon speculative opinion. But practice had discovered defects which might well escape the most discerning mind in planning the theory. The original system could not be more than experiment; it was built upon no experience. It was the first application of principles to a new state of things. The first judicial law displays great ability, and it is no disparagement of the author, to say its plan is not perfect. 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 now come, Mr. Chairman, to examine the changes which were made by the late law. This subject has not been correctly understood. It has every where been erroneously represented. 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 those courts remains untouched. The power or 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. To have formed a circuit court out of the district judges, would have allowed no court of appeal from the district court, except the Supreme Court, which would have been attended with great inconvenience. But this scheme was opposed by a still greater difficulty. In many districts the duties of the judge require a daily at tention. In all of them, business of great importance may, on unexpected occurrences, require his presence. This plan was thought of; it was well examined, and finally rejected, in consequence of strong objections to which it was liable. Nothing therefore remained but to compose the circuit court of judges distinct from those of the other courts. Admitting the propriety of excluding from this court the judges of the supreme and district courts, I think the late Congress cannot be accused of any wanton expense, nor even of a neglect of economy in the new establishment. This extensive country has been divided into six circuits, and three judges appointed for each circuit. Most of the judges have twice a year to attend a court in three States, and there is not one of them who has not to travel further, and who in time will not have more labor to perform than any judge of the State courts. When we call to mind that the jurisdiction of this court reaches the life of the citizen, and that in civil cases its judgments are final to a large amount, certainly it will not be said that it ought to have been composed of less than three judges. One was surely not enough, and if it had been doubtful whether two were not sufficient, the inconvenience which would have frequently arisen from an equal division of opinion, justifies the provision which secures a determination in all cases. It was additionally very material to place on the bench of this court a judge from each State, as the court was in general bound to conform to the law and the practice of the several States. I trust, sir, the committee are satisfied that the number of judges which compose the circuit court is not too great, and that the legislature would have been extremely culpable to have committed the high powers of this court to fewer hands. Let me now ask, if the compensation allowed to these judges is extravagant? It is little more then half the allowance made to the judges of the Supreme Court. It is but a small proportion of the ordinary practice of those gentlemen of the bar, who are fit, and to whom we ought to look to fill the places. You have given a salary of two thousand dollars. The puisne judges of Pennsylvania, I believe, have more. When you deduct the expenses of the office, you will leave but a moderate compensation for service, but a scanty provision for a family. When, Mr. Chairman, gentlemen coolly consider the amendments of the late law, I flatter myself their candor will at least admit that the present modification was fairly designed to meet and remedy the evils of the old system. 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 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. It is unnecessary, Mr. Chairman, for me to say any thing in relation to the district courts. Their former jurisdiction was not varied by the law of the last session. 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 State, and of this government. Will it be contended that such great trusts ought to be reposed in feeble or incapable hands? It has been asserted that this court will not have business to employ it. The assertion is supported neither by what is past, nor by what is likely to happen. During the present session of Congress at their last It has been my endeavor, sir, to give a corterm, the court was fully employed for two rect idea of the defects of the former judicial weeks in the daily hearing of causes. But its plan, and of the remedies for those defects inbusiness must increase. There is no longer that troduced by the law now designed to be repealrestraint upon appeals from the circuit court, ed. I do not pretend to say that the present which was imposed by the authority of the system is perfect; I contend only that it is betjudge of the court to which the appeal was to ter than the old. If, sir, instead of destroying, be carried; no longer will the apprehension of gentlemen will undertake to improve the presa secret unavoidable bias in favor of the de- ent plan, I will not only applaud their motives, cision of a member of their own body, shake but will assist in their labor. We ask only that the confidence of a suitor, in resorting to this our system may be tried. Let the sentence of excourt, who thinks that justice has not been perience be pronounced upon it. Let us hear the done to him in the court below. The progres- national voice after it has been felt. They will sive increase of the wealth and population of then be better able to judge its merits. In the country, will unavoidably swell the busi-practice, it has not yet been complained of; ness of the court. But there is a more certain and as it is designed for the benefit of the peoand unfailing source of employment, which will ple, how can their friends justify the act of takarise in the appeals from the courts of the na-ing it from them before they have manifested tional territory. From the courts of original their disposition to part with it? cognizance in this territory, it affords the only appellate jurisdiction. If gentlemen will look to the state of property of a vast amount in this city, they mus: Se satisfied that the Supreme Court will have enough to do for the money which is paid them. 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 mainains. 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❘ How, sir, am I to account for the extreme anxiety to get rid of this establishment? Does it proceed from that spirit, which, since power has been given to it, has so unrelentingly persecuted men in office who belonged to a certain sect? I hope there will be a little patience; these judges are old and infirm men; they will die; they must die; wait but a short time, their places will be vacant; they will be filled with the disciples of the new school, and gentlemen will not have to answer for the political murder which is now meditated. I shall take the liberty now, sir, of paying some attention to the objections which have been expressed against the late establishment. An early exception, which, in the course of the debate, has been abandoned by most gentlemen, and little relied on by any one, is the additional expense. The gentleman from Virginia stated the expense of the present establishment at one hundred and thirty-seven thousand dollars. On this head the material question is, not what is the expense of the whole establishment, but what will be saved by the repealing law on the table. I do not estimate the saving_at_more than twenty-eight thousand five hundred dollars. You save nothing but the salaries of sixteen judges, of two thousand dollars each. From this amount is to be deducted the salary of a judge of the Supreme Court, which is three thousand five hundred dollars. Abolishing the | each have exceeded the value of five hundred present system will not vary the incidental ex-dollars, and that they were generally litigated. penses of the circuit court. You revive a cir- cases, I do not conceive that there is much cuit court, whose incidental expenses will be equal to those of the court you destroy. The increased salaries of the district judges of Kentucky and Tennessee must remain. It is not proposed to abolish their offices, and the admissions upon the other side, allow that the salaries cannot be reduced. and at the instigation of another and a rival department? Yes, sir, I say at the instigation of the President, for I consider this business wholly as a Presidential measure. This document and his message, show that it originated with him; I consider it as now prosecuted by him, and I believe that he has the power to arrest its progress, or to accomplish its completion. I repeat that it is his measure. I hold him responsible for it; and I trust in God, that the time will come, when he will be called upon to answer for it as his act. And I trust the time will arrive, when he will hear us speaking upon the subject more effectually. ground to affirm, that the courts were without business. But, sir, I must be excused for saying, I pay little respect to this document. It has been shown by others in several points to be erroneous, and from my own knowledge, I know it to be incorrect. What right had the President to call upon the clerks to furnish him If there were no other objection, the present with the list of the suits which had been bill could not pass without amendment, because brought, or were depending in their respective it reduces the salaries of those judges, which is courts? Had this been directed by Congress, a plain, undeniable infraction of the constitu- or was there any money appropriated to pay tion. But, sir, it is not a fair way of treating the expense? Is there any law which made it the subject, to speak of the aggregate expense. the duty of the clerks to obey the order of the The great inquiry is, whether the judges are executive? Are the clerks responsible for renecessary, and whether the salaries allowed to fusing the lists, or for making false or defective them are reasonable? Admitting the utility of returns? Do we know any thing about the authe judges, I think no gentleman will contend thenticity of the certificates made by the clerks? that the compensation is extravagant. And are we not now aiming a mortal blow at We are told of the expense attending the fed-one branch of the government, upon the credit, eral judiciary. Can gentlemen tell me of a government under which justice is more cheaply administered? Add together the salaries of all your judges, and the amount but little exceeds the emoluments of the chancellor of England. Ascertain the expenses of State justice, and the proportion of each State of the expense of federal justice, and you will find that the former is five times greater than the latter. Do gentlemen expect that a system, expanded over the whole Union, is to cost no more than the establishment of a single State? Let it be remembered, sir, that the judiciary is an integral and co-ordinate part with the highest branches of the government. No government can long exist It has been stated as the reproach, sir, of the withou an efficient judiciary. It is the judicia- bill of the last session, that it was made by a ry which applies the law and enables the execu- party at the moment when they were sensible tive to carry it into effect. Leave your laws to that their power was expiring and passing into the judiciaries of the States to execute, and my other hands. It is enough for me, that the full word for it, in ten years you have neither law and legitimate power existed. The remnant nor constitution. Is your judiciary so costly was plenary and efficient. And it was our duty that you will not support it? Why then lay to employ it according to our judgments and out so much money upon the other branches of consciences for the good of the country. We your government? I beg that it may be recol- thought the bill a salutary measure, and there lected that, if your judiciary costs you thou-was no obligation upon us to leave it as a work sands of dollars, your legislature costs you hun- for our successors. Nay, sir, I have no hesitadreds of thousands, and your executive millions. tion in avowing, that I had no confidence in the An objection has been derived from the pau-persons who were to follow us. And I was the city of causes in the federal courts, and the objection has been magnified by the allegation, that the number had been annually decreasing. The facts admitted, I draw a very different inference from my opponents. In my opinion, they furnish the strongest proof of the defects of the former establishment, and of the necessity of a reform. I have no doubt, nay, I know it to be a fact, that many suitors were diverted from those tribunals by the fluctuations to which they were subject. Allow me, however, to take some notice of the facts. They are founded upon the Presidential document. No. 8. Taking the facts as there stated, they allow upward of fifty suits annually for each court. When it is considered that these causes must more anxious, while we had the means, to accomplish a work which I believed they would not do, and which I sincerely thought would contribute to the safety of the nation by giving strength and support to the constitution through the storm to which it was likely to be exposed. The fears, which I then felt, have not been dispelled, but multiplied by what I have since seen. I know nothing which is to be allowed to stand. I observe the institutions of the government falling around me, and where the work of destruction is to end, God alone knows. We discharged our consciences in establishing a judicial system, which now exists, and it will be for those, who now hold the power of the government, to answer for the abolition of it, which I shall now, sir, proceed to the consideration of the second point which the subject presents. However this point may be disguised by subtilties, I conceive the true question to be,-has the legislature a right by law to remove a judge? Gentlemen may state their question to be,-has the legislature a right by law to vacate the office of a judge? But, as in fact they remove the judges, they are bound to answer our question. they at present meditate. We are told, that our | ceived, if they think that we will submit to be law was against the sense of the nation. Let trampled on. me tell those gentlemen, they are deceived, when they call themselves the nation. They are only a dominant party, and though the sun of federalism should never rise again, they will shortly find men, better or worse than themselves, thrusting them out of their places. I know it is the cant of those in power, however they have acquired it, to call themselves the nation. We have recently witnessed an example of it abroad. How rapidly did the nation change in France; at one time Brissot called himself the nation; then Robespierre, afterward Tallien and Barras, and finally Bonaparte. But their dreams were soon dissipated, and they awoke in succession upon the scaffold, or in banishment. Let not these gentlemen flatter themselves, that heaven has reserved to them a peculiar destiny. What has happened to others in this country, they must be liable to. Let them not exult too highly in the enjoyment of a little brief and fleeting authority. It was ours yesterday, it is theirs to-day, but to-mor-judge and removing a judge from the office? row it may belong to others. The question, which I state, they will not meet. Nay, 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 Do you not indirectly accomplish the end which you admit is prohibited? I will not say, that it Here Mr. Bayard stated, that he had gone is the sole intention of the supporters of the bill through the remarks he had to make, connected before us, to remove the circuit judges from their offices; but I will say, that they establish with the first point of the debate; that he ob- a precedent which will enable worse men than served that the common hours of adjournment themselves to make use of the legislative power, had passed, and that he should sit down in or- for that purpose, upon any occasion. If it be der to allow the committee to rise if they constitutional to vacate the office, and in that way to dismiss the judge, can there be a questhought proper. On the following day he re-tion as to the power to re-create the office and sumed his argument. I owe to the committee the expression of ny thanks for the patience with which they attended to the laborious discussion of yesterday. 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 this repealing act, (and no one will doubt the right to do it,) and no effect is produced, but the removal of the judges. To suppose that It will be my endeavor, in the remarks which such a case may occur, is no vagary of imaginaI have to offer upon the remaining point of the tion. The thing has been done, shamelessly debate, to consume no time which the impor-done, in a neighboring State. The judges there tance of the subject does not justify. I have never departed from the question before the committee, but with great reluctance. Before I heard the gentleman from Virginia, I had not an observation to make unconnected with the bill on the table. It was he who forced me to wander on foreign ground; and be assured, sir, I shall be guilty of no new digressions where am not covered by the same justification. held their offices upon the same tenure with the judges of the United States. Three of them were obnoxious to the men in power. The judicial law of the State was repealed, and immediately re-enacted, without a veil being thrown over the transaction. The obnoxious men were removed, their places supplied with new charIacters, and the other judges were re-appointed. Whatever sophistry may be able to show in theory, in practice there never will be found a difference in the exercise of the powers of re I did think, that this was an occasion when the House ought to have been liberated from the dominion of party spirit, and allowed to de-moving a judge and of vacating his office. cide upon the unbiassed dictates of their understanding. The vain hope which I indulged, that this course would be pursued, was soon dissipated by the inflammatory appeal made by the gentleman from Virginia to the passions of his party. This appeal, which treated with no respect the feelings of one side of the House, will excuse recriminations which have been made, or which shall be retorted. We were lisposed to conciliate, but gentlemen are de The question, which we are now considering, depends upon the provisions contained in the constitution. It is an error of the committee, upon plain subjects to search for reasons very profound. Upon the present subject, the strong provisions of the constitution are so obvious, that no eye can overlook them. They have been repeatedly cited, and as long as the question stated is under discussion, they must be reiterated. There are two prominent provis 1 shall hold the office during good behavior, unless Congress shall deem it expedient to abolish the office? If this limitation has been omitted, what authority have we to make it a part of the constitution? ions to which I now particularly allude. First, | from him? Has the constitution said that he the judges shall hold their offices during good behavior. Second, their compensation shall not be diminished during their continuance in office. These are provisions so clearly understood upon the first impression, that their meaning is rather obscured than illustrated by argument. What is meant, and what has been universally understood by the tenure of "good behavior?" A tenure for life, if the judge commit no misdemeanor. It is so understood and expressed in England, and so it has always been received and admitted in this country. The express provision, then, of the constitution defines the tenure of a judge's office; a tenure during life. How is that tenure expressly qualified? By the good behavior of the judge. Is the tenure qualified by any other express condition or limitation? No other. As the tenure is express, as but one express limitation is imposed upon it, can it be subject to any other limitation not derived from necessary implication? If any material provision in the constitution can in no other manner be satisfied, than by subjecting the tenure of this office to some new condition, I will then admit, that the tenure is subject to the condition. The second plain, unequivocal provision on this subject is, that the compensation of the judge shall not be diminished during the time he continues in office. This provision is directly levelled at the power of the legislature. They alone could reduce the salary. Could this provision have any other design than to place the judge out of the power of Congress? And yet how imperfect and how absurd the plan. You cannot reduce a part of the compensation, but you may extinguish the whole. What is the sum of this notable reasoning? You cannot remove a judge from the office, but you may take the office from the judge. You cannot take the compensation from the judge, but you may separate the judge from the compensation. If your constitution cannot resist reasoning like this, then indeed is it waste paper. I will here turn aside, in order to consider a variety of arguments drawn from different Gentlemen have ventured to point out a pro- sources, on which gentlemen on the other side vision which they conceived furnished this ne- have placed a reliance. I know of no order in cessary implication. They refer to the power which they can be classed, and I shall, theregiven to Congress from time to time, to establish fore, take them up as I meet with them on my courts inferior to the Supreme Court. If this notes. It was urged by the honorable member power cannot be exercised without vacating the from Virginia, to whom I have so frequently offices of existing judges, I will concede that referred, that what was created by law might those offices may be vacated. But on this head by law be annihilated. In the application of there can be no controversy. The power has his principle, he disclosed his views, which I been, and at all times may be exercised, without believe have not been contemplated by gentlevacating the office of any judge. It was so ex-men of his party. He was industrious to show ercised at the last session of Congress; and I that not only the inferior courts, but the Susurely do not now dispute the right of gentle-preme Court derives its existence from law. men to establish as many new courts as they The President and legislature exist under the may deem expedient. The power to establish constitution. They came into being without new courts does not therefore necessarily imply a power to abolish the offices of existing judges, because the existence of those offices does not prevent an execution of the power. The clause in the constitution to which I have just alluded, has furnished to gentlemen their famous position, that though you cannot remove a judge from his office, you may take the office from the judge. Though I should be in order, I will not call this a quibble, but I shall attempt in the course of the argument yet more clearly to prove that it is one. I do not contend that you cannot abolish an empty office; but the point on which I rely is, that you can do no act which impairs the independence of a judge. When gentlemen assert that the office may be vacated, notwithstanding the incumbency of the judge, do they consider that they beg the very point which is in controversy? The office cannot be vacated without violating the express provision of the constitution in relation to the tenure. The judge is to hold the office during good behavior. Does he hold it when it is taken the aid of a law. But though the constitution said there should be a Supreme Court, no judges could exist till the court was organized by a law. This argument I presume was pushed to this extent, in order to give notice to the judges of the Supreme Court of their fate, and to bid them prepare for their end. I shall not attempt to discriminate between the tenure of the offices of the judges of the supreme and inferior courts. Congress has power to organize both descriptions of courts, and to limit the number of judges, but they have no power to limit or define the tenure of office. Congress creates the office; the President appoints the officer; but it is neither under Congress nor the President, but under the constitution, that the judge claims to hold the office during good behavior. The principle asserted does not in this case apply; the tenure of office is not created by law, and if the truth of the principle were admitted, it would not follow that the tenure of the office might be vacated by law. But the principle is not sound. I will show a variety of cases which will prove |