SENATE.] Proceedings. [DECEMBER, 1801. gislation. A communication will also be made of our | barking his life and fortunes permanently with us? progress in the execution of the law respecting the vessels directed to be sold. with restrictions, perhaps, to guard against the frandulent 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. 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 These, fellow-citizens, are the matters respecting points within it, others are so extensive, will cost so the state of the nation which I have thought of im much in their first erection, so much in their main-portance to be submitted to your consideration at tenance, and require such a force to garrison them, this time. Some others of less moment, or not yet as to make it questionable what is best now to be done. ready for communication, will be the subject of sepA statement of those commenced or projected; of the arate Messages. I am happy in this opportunity of expenses already incurred; and estimates of their committing the arduous affairs of our Government to future cost, as far as can be foreseen, shall be laid the collected wisdom of the Union. Nothing shall be before you, that you may be enabled to judge wheth- wanting on my part to inform, as far as in my power, er any alteration is necessary in the laws respecting the legislative judgment, nor to carry that judgment this subject. into faithful execution. The prudence and temperAgriculture, manufactures, commerce, and naviga-ance of your discussions will promote, within your tion, the four pillars of our prosperity, are then most own walls, that conciliation which so much befriends thriving when left most free to individual enterprise. rational conclusion; and by its example will encourProtection from casual embarrassments, however, age among our constituents that progress of opinion may sometimes be seasonably interposed. If, in the which is tending to unite them in object and in will. course of your observations or inquiries, they should That all should be satisfied with any one order of appear to need any aid within the limits of our con- things, is not to be expected; but I indulge the stitutional powers, your sense of their importance is a pleasing persuasion that the great body of our citi sufficient assurance they will occupy your attention. zens will cordially concur in honest and disinterested We cannot, indeed, but all feel an anxious solicitude efforts, which have for their object to preserve the for the difficulties under which our carrying trade General and State Governments in their constitutionwill soon be placed. How far it can be relieved, al form and equilibrium; to maintain peace abroad, otherwise than by time, is a subject of important con- and order and obedience to the laws at home; to sideration. 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. 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. DECEMBER 8, 1801. THOMAS JEFFERSON. The Letter and Message were read, and or dered 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-atArms and Doorkeeper to the Senate, be, and he is hereby, authorized to employ ditional assistant, and two horses, for the pur one ad I cannot omit recommending a revisal of the laws on the subject of naturalization. Considering the ordinary chances of human life, a denial of citizen-pose of performing such services as are usually ship under a residence of fourteen years, is a denial required of the Doorkeeper to the Senate; and to a great proportion of those who ask it; and con-him weekly for the purpose during the session, that the sum of twenty-eight dollars be allowed trols a policy pursued, from their first settlement, by many of these States, and still believed of conse- and for twenty days after. quence to their prosperity. And shall we refuse to the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our New Hampshire, severally attended. FRIDAY, December 11. JONATHAN MASON, from the State of Massafathers arriving in this land? Shall oppressed hu-chusetts, and JAMES SHEAFE, from the State of manity 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 em MONDAY, December 14. JAMES HILLHOUSE, from the State of Connec ticut, and DWIGHT FOSTER, from the State of Massachusetts, severally attended. THOMAS SUMTER, appointed a Senator by the Legislature of the State of South Carolina, in the place of their late Senator, Charles Pinck-ing, ney, 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. , On motion, to amend the resolution, by addafter 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. Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, On motion, to agree to the original resolu DAVID STONE, from the State of North Caro- tion, amended by adding the words "or notelina, 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. taker," after the words stenographer, it passed Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin, NAYS.-Messrs. Chipman, Dayton, Dwight Foster, So it was Resolved, That any stenographer, Mr. BRECKENRIDGE presented the petition of Isaac Zane, stating that he was made a prisoner the Senate on Legislative business, may be ador note-taker, desirous of taking the debates of at the age of nine years by the Wyandot In-mitted for that purpose at such place, within dians, with whom he remained until he became the area of the Senate Chamber, as the Presiof age; had a family by a woman of that nadent shall allot.* tion, 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. 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. [From the National Intelligencer of Jan. 8, 1802.] On Monday last the editor addressed a letter to tho Mr. BROWN, from the State of Kentucky, at- President of the Senate, requesting permission to occupy a tended. position in the lower area of the Senate Chamber, for the purpose of taking with correctness the debates and proceedings of that body. It may be necessary to remark that heretofore no stenographer has been admitted in this area; and the upper gallery, being open to the admission of every one, and very attempt being made to take the debates, from the impossibility of hearing distinctly from it. remote from the floor of the House, has prevented any The contents of the letter were submitted by the President to the Senate; and a resolution agreed to, to the fol lowing effect: Resolved, That any stenographer, desirous to be admitted for that purpose, at such place, within the area of the Senate Chamber, as the President shall allot. him a convenient place in the lower area, from which ho take the debates of the Senate on Legislative business, may On Wednesday the editor had, accordingly, assigned to took notes of the proceedings of the Senate. SENATE.] Judiciary System. [JANUARY, 1802. | petent to the prompt and proper discharge of the duties consigned to them. To hold out s show of litigation, when in fact little exists, must be impolitic; and to multiply expensive systems, and create hosts of expensive officers, re-without having experienced an actual necessity for them, must be a wanton waste of the publ treasure. 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 solutions 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." * Mr. BRECKENRIDGE then rose and addressed the PRESIDENT, as follows: 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 sppears, that the annual average amount of suits has been about eight hundred. But sundry contingent things have conspired land, Virginia, and in all the Southern and to swell the circuit court dockets. In MarySouth-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 Northampton Counties: and by the sedition act. insurrection, by the disturbances in Bucks and These I find amount in that State to two hunen-dred and forty suits. 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 deavor 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 can and ought to be abolished. have gone into the federal court from a temIn Kentucky, non-resident land claimants it,porary convenience: because, until within a year or two past, there existed no court of 1st. That the act under consideration was un-State. I find, too, that of the six hundred and general jurisdiction co-extensive with the whole necessary and improper, is, to my mind, no odd suits which have been commenced there, difficult task to prove. No increase of courts one hundred and ninety-six of them have been or judges could be necessary or justifiable, unprosecutions under the laws of the United less the existing courts and judges were incomStates. 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 feder al 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 ne cessary 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? [SENATE. 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 nconstitutional, and consequently repealable. 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 But independent of this legislative construcconsigned to federal courts, and seriously ask tion, on which I do not found my opinion, nor yourself, can there be fairly extracted from those mean to rely my argument, there is little doubt powers subjects of litigation sufficient for six indeed, in my mind, as to the power of Consupreme and thirty-two inferior court judges?gress on this law. The first section of the To me it appears impossible. 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, 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" of all crimes (except in cases of impeachwhich 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 408. 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. ment) 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, First, as to the courts, Congress are em- forbidding a diminution of their salaries, applies powered by the constitution "from time to to the Legislature only. They are two separate time, to ordain and establish inferior courts." and distinct checks, furnished by the constituThe act now under consideration, is a legislative │tion against two distinct departments of the I will now inquire into the power of Congress to put down these additional courts and judges. SENATE.] Judiciary System. (JANUARY, 1809 Government; and they are the only ones which | traction from and correction of our errors. O are or ought to have been furnished on the subject. all other subjects of legislation we are allowed it seems, to change our minds, except on jud ciary 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 twentysix laws on this 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? Mr. J. MASON, of Massachusetts, said, it Can it mean that an office may exist, although would be agreed on all hands that this was one its duties are extinct? Can it mean, in short, of the most important questions that ever came that the shadow, to wit, the judge, can remain, before a Legislature. Were he not of this opinwhen the substance, to wit, the office, is re-ion he would not have risen to offer his sentimoved? It must have intended all these ab-ments But he felt so deep an interest in the surdities, or it must admit a construction which question, and from the respect which he enter will avoid them. tained for the district of counts y he represented he deemed it his duty to meet the subject, and not be satisfied with giving to it his silent neg tive. 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 coutend 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. The constitution, in the construction of the Executive, Legislative, and Judiciary Depart ments, had assigned to each s `ifferent tenure, The President was chosen for four years; the Senate for six years, subject to a prescribed ro tation biennially; the House of Representatives for two years; and the Judiciary during good Let me not be told, sir, that the salaries in behavior. It says to the President, at the er the present case are inconsiderable, and ought piration of every four years, you shall revert to not to be withheld; and that the doctrine is the character of a private citizen, however not a dangerous one. I answer, it is the prin- splendid your talents or conspicuous your vir ciple I contend against; and if it is heterodox tue. Why? Because you have assigned to for one dollar, it is equally so for a million, you powers which it is dangerous to exercise. But I contend the principle, if once admitted, You have the power of creating offices and offmay be extended to destructive lengths. Sup-cers. You have prerogatives. The temptation pose it should hereafter happen, that those in to an abuse of your power is great. Such has 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? been the uniform experience of ages. The collstitution holds the same language to the Senate and House of Representatives: It says, it is ne cessary 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 be There is another difficulty under this con- cause you hold the purse-strings of the nation struction still to encounter, and which also To the Judiciary: What is the language ap grows out of the constitution: By the consti-plied to them? The judges are not appointed tution, a new State may be formed by the junc- for two, four, or any given number of years; tion of two or more States, with their assent but they hold their appointments for life, unless and that of Congress. If this doctrine, once a they misbehave themselves. Why? For this judge and always a judge, be correct, what reason: They are not the depositaries of the would you do in such an event, with the dis- high prerogatives of Government. They neither trict judges of the States who formed that junc-appoint to office, nor hold the purse-strings of tion? 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 re the country, nor legislate for it. They depend entirely upon their talents, which is all they have to recommend them. They cannot, there fore, be disposed to pervert their power to im proper 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 rea sons which must strike every mind, for the dif ferent 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 |