SPEECH ON THE JUDICIARY. Mr. Morris delivered this speech in the Sen- | ate of the United States, on the fourteenth of January, 1802, on the motion, "Resolved, That the act of Congress, passed on the thirteenth 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entitled, 'An act to provide for the more convenient organization of the Courts of the United States,' ought to be repealed."* MR. PRESIDENT: I had fostered the hope that some gentleman, who thinks with me, would have taken upon himself the task of replying to the observations made yesterday, and this morning, in favor of the motion on your table. But since no gentleman has gone so fully into the subject as it seems to require, I am compelled to request your attention. gentleman from Virginia, that there is no independent part of this government; that in Popular governments the force of every department, as well as the government itself, must depend upon popular opinion. The honorable member from North Carolina has informed us, that there is no check for the overbearing powers of the legislature but public opinion; and he has been pleased to notice a sentiment I had uttered-a sentiment which not only fell from my lips, but which flowed from my heart. It has, however, been misunderstood and misapplied. After reminding the House of the dangers to which popular governments are exposed, from the influence of designing demagogues upon popular passion, I took the liberty to say, that we, we the Senate of the United States, are assembled here to save the people from their most dangerous enemy, to save them from themselves; to guard them against the baneful effects of their own precipitation, their passion, their misguided zeal. It is for these purposes that all our constitutional checks are devised. If this be not the language of the constitution, the constitution is all nonsense. For why are the senators chosen by communities, and the representatives directly by the people? Why are the one chosen for a longer term than the other? Why give one branch of the legislature a negative upon the acts of the other? Why give the President a right to arrest the proceedings of both, till two-thirds of each should concur? Why all these multiplied precautions, unless to check and control that impetuous spirit, that headlong torrent of opinion, which has swept away every popular government that ever existed? We were told, yesterday, by the honorable member from Virginia, that our objections were calculated for the bystanders, and made with a view to produce effect upon the people at large. I know not for whom the charge is intended. I certainly recollect no such observations. As I was personally charged with making a play upon words, it may have been intended for me. But surely, sir, it will be recollected that I declined that paltry game, and declared that I considered the verbal criticism, which had been relied on, as irrelevant. If I can recollect what I said, from recollecting well what I thought, and meant to say, sure I am, that I uttered nothing in the style of an appeal to the people. I hope no member of this House has so poor a sense of its dignity as to make such an appeal. As to myself, it is now near thirty years since I was called into public office. With the most respectful attention, I heard During that period, I have frequently been the the declaration of the gentleman from Virginia, servant of the people, always their friend; but of his own sentiment. "Whatever," said he, at no one moment of my life their flatterer, and “may be my opinion of the constitution, I hold God forbid that I ever should be. When the myself bound to respect it." He disdained, sir, honorable gentleman considers the course we to profess an attachment he did not feel, and I have taken, he must see that the observation he accept his candor as a pledge for the performhas thus pointed, can light on no object. I ance of his duty. But he will admit this netrust that it did not flow from the consciousness cessary inference from that frank confession, of his own intentions. He, I hope, had no that although he will struggle against his incliview of this sort. If he had, he was much, | nation and support the constitution, even to the very much mistaken. Had he looked round last moment, yet, when in spite of all his efforts upon those who honor us with their attend- it shall fall, he will rejoice in its destruction ance, he would have seen that the splendid flashes of his wit excited no approbatory smile. The countenances of those by whom we were surrounded, presented a different spectacle. They were impressed with the dignity of this House; they perceived in it the dignity of the American people, and felt, with high and manly sentiment, their own participation. We have been told, sir, by the honorable See note at pago 442, ante. Far different are my feelings. It is possible that we are both prejudiced, and that in taking the ground, on which we respectively stand, our judgments are influenced by the sentiments which glow in our hearts. I, sir, wish to support this constitution because I love it; and I love it because I consider it as the bond of our union; because in my soul I believe, that on it depends our harmony and our peace; that without it, we should soon be plunged in all the horrors of civil war; that this country would be deluged with the blood of its inhabitants, and a brother's hand raised against the bosom | tried in the State courts. But he will, I hope, of a brother. After these preliminary remarks, I hope I shall be indulged while I consider the subject in reference to the two points which have been taken, the expediency and the constitutionality of the repeal. pardon me when I contend that the constitution did not merely contemplate, but did by express words reserve to the national tribunals a right to decide, and did secure to the citizens of America a right to demand their decision, in many cases evidently cognizable in the State In considering the expediency, I hope I shall courts. And what are these cases? They are be pardoned for asking your attention to some those, in respect to which it is by the constiparts of the constitution, which have not yet tution presumed, that the State courts would been dwelt upon, and which tend to elucidate not always make a cool and calm investigation, this part of our inquiry. I agree fully with the a fair and just decision. To form, therefore, a gentleman, that every section, every sentence, more perfect union, and to insure domestic and every word of the constitution, ought to be tranquillity, the constitution has said there deliberately weighed and examined; nay, I am shall be courts of the Union to try causes, by content to go along with him, and give its due the wrongful decision of which, the Union value and importance to every stop and comma. might be endangered or domestic tranquillity In the beginning, we find a declaration of the be disturbed. And what courts? Look again motives which induced the American people to at the cases designated. The Supreme Court bind themselves by this compact. And in the has no original jurisdiction. The constitution foreground of that declaration, we find these has said that the judicial powers shall be vested objects specified; "to form a more perfect in the Supreme and inferior courts. It has deunion, to establish justice, and to insure domes-clared that the judicial power, so vested, shall tic tranquillity." But how are these objects effected? The people intended to establish justice. What provision have they made to fulfil that intention? After pointing out the courts which should be established, the second section of the third article informs us, "the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign states, citizens or subjects. ་་ In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." extend to the cases mentioned, and that the Supreme Court shall not have original jurisdiction in those cases. Evidently, therefore, it has declared, that they shall in the first instance be tried by inferior courts, with appeal to the Supreme Court. This, therefore, amounts to a declaration, that the inferior courts shall exist; since, without them, the citizen is deprived of those rights for which he stipulated, or rather, those rights verbally granted would be actually withheld; and that great security of our union, that necessary guard of our tranquillity, be completely paralyzed, if not destroyed. In declaring, then, that these tribunals shall exist, it equally declares, that the Congress shall ordain and establish them. I say they shall; this is the evident intention, if not the express words, of the constitution. The convention in framing, the American people in adopting that compact, did not, could not presume, that the Congress would omit to do what they were thus bound to do. They could not presume, that the legislature would hesitate one moment, in establishing the organs necessary to carry into effect those wholesome, those important provisions. The honorable member from Virginia has given us a history of the judicial system, and, in the course of it, has told us, that the judges Thus then we find that the judicial power of the Supreme Court knew, when they accepted shall extend to a great variety of cases, but their offices, the duties they had to perform, that the Supreme Court shall have only appel- and the salaries they were to receive. He late jurisdiction in all admiralty and maritime thence infers, that if again called on to do the causes, in all controversies between the United same duties, they have no right to complain. States and private citizens, between citizens of Agreed-but that is not the question between different States, between citizens of the same us. Admitting that they have made a hard State claiming lands under different States, and bargain, and that we may hold them to a strict between a citizen of the United States and for- performance, is it wise to exact their compliance eign states, citizens or subjects. The honor-to the injury of our constituents? We are urged able gentleman from Kentucky, who made the motion on your table, has told us that the con- | stitution, in its judiciary provisions, contemplated only those cases which could not be to go back to the old system; but let us first examine the effects of that system. The judges of the Supreme Court rode the circuits, and two of them, with the assistance of a district judge. held circuit courts and tried causes. As a su- | judicial system could be established with general consent. And then let me ask, being thus impressed with the sense of the duty and the difficulty of performing that arduous task, was it not wise to seize the auspicious moment? Among the many stigmas affixed to this law, we have been told, that the President, in selecting men to fill the offices which it created, made vacancies and filled them from the floor of this House; and that but for the influence of this circumstance, a majority in favor of it could not have been found. Let us examine this suggestion. It is grounded on a supposition of corrupt influence, derived from a hope founded on two remote and successive contir. gencies. First, the vacancy might or might not exist; for it depended as well on the acceptance of another as on the President's grant; and secondly, the President might or might not fill it with a member of this House. Yet on this vague conjecture, on this unstable ground, it is inferred, that men in high confidence violated their duty. It is hard to determine the influence of self-interest on the heart of man. I shall not, therefore, make the attempt. In the present case, it is possible that the imputation may be just, but I hope not, I believe not. At any rate, gentlemen will agree with me, that the calculation is uncertain, and the conjecture vague. The same honorable member has given us a history of the law passed the last session, which he wishes now to repeal. That history is accurate, at least in one important part of it. I believe that all amendments were rejected, pertinaciously rejected; and I acknowledge that I joined heartily in that rejection. It was for the clearest reason on earth. We all perfectly understood, that to amend the bill was to destroy it; that if ever it got back to the other House, it would perish. Those, therefore, who approved of the general provisions of that bill, were determined to adopt it. We sought the practicable good, and would not, in pursuit of unattainable perfection, sacrifice that good to the pride of opinion. We took the bill, therefore, with its imperfections, convinced, that when it was once passed into a law, it might be easily amended. But let it now, for argument's sake, be admitted, saving always the reputation of honorable men, who are not here to defend themselves-let it, I say, for argument's sake, be admitted, that the gentlemen alluded to acted under the influence of improper motives. What then? Is a law that has received the varied assent required by the constitution, and is clothed with all the needful formalities, thereby invalidated? Can you impair its force by impeaching the motives of any member who We are now told, that this procedure was voted for it? Does it follow, that a law is bad improper; nay, that it was indecent; that pub- because all those who concurred in it cannot lic opinion had declared itself against us; that give good reasons for their votes? Is it not a majority, holding different opinions, was al- before us? Must we not judge of it by its inready chosen to the other House; and that a trinsic merit? Is it a fair argument, addressed similar majority was expected for that in which to our understanding, to say, we must repeal a we sit. Mr. President, are we then to under-law, even a good one, if the enacting of it may stand, that opposition to the majority in the two Houses of Congress is improper, is indecent? If so, what are we to think of those gentlemen, who, not only with proper and decent, but with laudable motives, for such is their claim, so long, so perseveringly, so pertinaciously opposed that voice of the people, which had so repeatedly, and for so many years, declared itself against them, through the organ of their representatives? Was this indecent in them? If not, how could it be improper for us to seize the only moment which was left for the then majority to do what they deemed a necessary act? Let me again refer to those imperious demands of the constitution, which called on us to establish inferior courts. Let me remind gentlemen of their assertion on this floor, that centuries might elapse before any have been effected, in any degree, by improper motives? Or, is the judgment of this House so feeble, that it may not be trusted? Gentlemen tell us, however, that the law is materially defective, nay, that it is unconstitutional. What follows? Gentlemen bid us repeal it. But is this just reasoning? If the law be only defective, why not amend? And if unconstitutional, why repeal? In this case, no repeal can be necessary; the law is in itself void; it is a mere dead letter. To show that it is unconstitutional, a particular clause is pointed out, and an inference is made, as in the case of goods, where, because there is one contraband article on board, the whole cargo is forfeited. Admit, for a moment, that the part alluded to were unconstitu tional, this would in nowise affect the remain der. That part would be void, or if you think | with the manners of the people, and acquire proper, you can repeal that part. Let us, however, examine the clause objected to on the ground of the constitution. It is said, that by this law the district judges, in Tennessee and Kentucky, are removed from office by making them circuit judges. And again, that you have by law appointed two new offices, those of circuit judges, and filled them by law, instead of pursuing the modes of appointment prescribed by the constitution. To prove all this, the gentleman from Virginia did us the favor to read those parts of the law which he condemns, and if I can trust to my memory, it is clear, from what he read, that the law does not remove these district judges, neither does it appoint them to the office of circuit judges. It does, indeed, put down the district courts; but is so far from destroying the offices of district judge, that it declares, the persons filling those offices shall perform the duty of holding the circuit courts. And so far is it from appointing circuit judges, that it declares, the circuit courts shall be held by the district judges. But gentlemen contend, that to discontinue the district courts, was in effect to remove the district judge. This, sir, is so far from being a just inference from the law, that the direct contrary follows as a necessary result; for it is on the principle, that these judges continue in office after their courts are discontinued, that the new duty of holding courts is assigned to them. But gentlemen say, this doctrine militates with the principles we contend for. Surely not. It must be recollected, sir, that we have repeatedly admitted the right of the legislature to change, alter, modify and amend the judiciary system, so as best to promote the interest of the people. We only contend, that you shall not exceed or contravene the authority by which you act. But, say gentlemen, you forced this new office on the district judges, and this is in effect a new appointment. I answer, that the question can only arise on the refusal of those judges to act. But is it unconstitutional to assign new duties to officers already existing? I fear, that if this construction be adopted, our labors will speedily end; for we shall be so shackled, that we cannot move. What is the practice? Do we not every day call upon particular officers to perform duties not previously assigned to or required of them? And must the executive, in every such case, make a new appointment? But as a further reason to restore, by repealing this law, the old system, an honorable member from North Carolina has told us, the judges of the Supreme Court should attend in the States, to acquire a competent knowledge of local institutions, and for this purpose should continue to ride the circuits. I believe there is great use in sending young men to travel; it tends to enlarge their views, and gives them more liberal ideas than they might otherwise possess. Nay, if they reside long enough in foreign countries, they may become acquainted some knowledge of their civil institutions. But I am not quite convinced, that riding rapidly from one end of this country to the other, is the best way to study law. I am inclined to believe, that knowledge may be more conve niently acquired in the closet than in the high road. It is moreover to be presumed, that the first magistrate would, in selecting persons to fill these offices, take the best characters from the different parts of the country, who already possess the needful acquirements. But admitting that the President should not duly exercise, in this respect, his discretionary powers, and admitting that the ideas of the gentleman are correct, how wretched must be our condition! These, our judges, when called on to exercise their functions, would but begin to learn their trade, and that too at a period of life when the intellectual powers with no great facility can acquire new ideas. We must, therefore, have a double set of judges. One set of apprentice-judges, to ride circuits and learn; the other set of master-judges, to hold courts and decide controversies. We are told, sir, that the repeal asked for is important, in that it may establish a precedent, for that it is not merely a question on the propriety of disbanding a corps of sixteen rank and file; but that provision may hereafter be made, not for sixteen, but for sixteen hundred, or sixteen thousand judges, and that it may become necessary to turn them to the right-about. Mr. President, I will not, I cannot presume, that any such provision will ever be made, and therefore I cannot conceive any such necessity; I will not suppose, for I cannot suppose, that any party or faction will ever do any thing so wild, so extravagant. But I will ask, how does this strange supposition consist with the doctrine of gentlemen, that public opinion is a sufficient check on the legislature, and a sufficient safeguard to the people? Put the case to its consequences, and what becomes of the check? Will gentlemen say, it is to be found in the force of this wise precedent? Is this to control succeeding rulers, in their wild, their mad career? But how? Is the creation of judicial officers the only thing committed to their discretion? Have they not, according to the doctrine contended for, our all at their disposal, with no other check than public opinion, which, according to the supposition, will not prevent them from committing the greatest follies and absurdities? Take then all the gentleman's ideas, and compare them together, it will result, that here is an inestimable treasure put into the hands of drunkards, madmen and fools. But away with all these derogatory supposi tions. The legislature may be trusted. Ou government is a system of samtary checks: one legislative branch is a check on the other. And should the violence of party spirit bear both of them away, the President, an officer high in honor, high in the public confidence, charged brious terms, I must still believe that two and two do still make four. Gentlemen of newer theories, and of higher attainments, while they smile at my inferiority, must bear with my infirmities, and take me as I am. with weighty concerns, responsible to his own reputation, and to the world, stands ready to arrest their too impetuous course. This is our system. It makes no mad appeal to every mob in the country. It appeals to the sober sense of men selected from their fellow-citizens for In all this great system of saving, in all this their talents, for their virtue; of men advanced ostentatious economy, this rage of reform, how in life, and of matured judgment. It appeals happens it that the eagle eye has not yet been to their understanding, to their integrity, to turned to the mint? That no one piercing their honor, to their love of fame, to their sense glance has been able to behold the expenditures of shame. If all these checks should prove in- of that department? I am far from wishing to sufficient, and alas! such is the condition of overturn it. Though it be not of great neceshuman nature, that I fear they will not always sity, nor even of substantial importance; though be sufficient, the constitution has given us one it be but a splendid trapping of your governmore: it has given us an independent judiciary.ment; yet, as it may, by impressing on your We have been told that the executive authority carries your laws into execution. But let us not be the dupes of sound. The executive magistrate commands, indeed, your fleets and armies; and duties, imposts, excises, and other taxes are collected, and all expenditures are made by officers whom he has appointed. So far, indeed, he executes your laws. But these, his acts, apply not often to individual concerns. In those cases, so important to the peace and happiness of society, the execution of your laws is confided to your judges; and therefore are they rendered independent. Before, then, you violate that independence-pause. There are state sovereignties, as well as the sovereignty of the general government. There are cases, too many cases, in which the interest of one is not considered as the interest of the other. | Should these conflict, if the judiciary be gone, the question is no longer of law, but of force. This is a state of things which no honest and wise man can view without horror. current coin the emblems of your sovereignty, have some tendency to encourage a national spirit, and to foster the national pride, I am willing to contribute my share for its support. Yes, sir, I would foster the national pride. I cannot indeed approve of national vanity, nor feed it with vile adulation. But I would gladly cherish the lofty sentiments of national pride. I would wish my countrymen to feel like Romans, to be as proud as Englishmen; and, going still farther, I would wish them to veil their pride in the well-bred modesty of French politeness. But can this establishment, the mere decoration of your political edifice, can it be compared with the massy columns on which rest your peace and safety? Shall the striking of a few halfpence be put into a parallel with the distribution of justice? I find, sir, from the estimates on your table, that the salaries of the officers of the mint amount to ten thousand, six hundred dollars, and that the expenses are estimated at ten thousand, nine hundred; making twenty-one thousand, five hundred dollars. lars; add the salaries, ten thousand, six hundred dollars, we have a total of thirty-five thousand, seven hundred and fifty-four dollars; a sum which exceeds the salary of these sixteen judges. Suppose, in the omnipotence of your legislative authority, you trench upon the rights of I find that the actual expenditures of the last your fellow-citizens, by passing an unconstitu- year, exclusive of salaries, amounted to twentytional law if the judiciary department pre-five thousand, one hundred and fifty-four dolserve its vigor, it will stop you short: instead of a resort to arms, there will be a happier appeal to argument. Suppose a case still more impressive. The President is at the head of your armies. Let one of his generals, flushed with victory, and proud in command, presume to trample on the rights of your most insignificant citizen: indignant of the wrong, he will demand the protection of your tribunals, and safe in the shadow of their wings, will laugh his oppressor to scorn. Having now, I believe, examined all the arguments adduced to show the expediency of this motion-and which, fairly sifted, reduce themselves at last to these two things: restore the ancient system, and save the additional expense-before I close what I have to say on this ground, I hope I shall be pardoned for saying one or two words about the expense. I hope, also, that, notwithstanding the epithets which may be applied to my arithmetic, I shall be pardoned for using that which I learned at school. It may have deceived me when it taught me that two and two make four: but though it should now be branded with oppro- | I find further, that during the last year, they have coined cents and half cents to the amount of ten thousand, four hundred and seventy-three dollars and twenty-nine cents. Thus their copper coinage falls a little short of what it costs us for their salaries. We have, however, from this establishment, about a million of cents; one to each family in America; a little emblematical medal, to be hung over their chimney pieces; and this is all their compensation for all that expense. Yet not a word has been said about the mint; while the judges, whose services are so much greater, and of so much more importance to the community, are to be struck off at a blow, in order to save an expense which, compared with the object, is pitiful. What conclusion, then, are we to draw from this predilection? I will not pretend to assign to gentlemen the motives by which they may be influenced; but |