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 favour of it could not have been found. Let us examine this suggestion. It is grounded on the supposition of corrupt influence derived from a hope, founded on two remote and successive contingencies. 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, it is asserted, 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.

But let it now, for an argument sake, be admitted; saving always the reputation of honourable men who are not here to defend themselves. Let it, I say, for argument 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 voted for it? Does it follow, that a law is bad because all those who concurred in it cannot give good reasons for their votes? Must we not judge of it by its intrinsic merit. Is it a fair argument addressed to our understanding, to say we must repeal a law, even a good one, if the enacting of it may

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 was unconstitutional, this would in no wise affect the remainder. That part would be void, or if you think 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 favour to read those parts of the law which he condemns, and if I can trust 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 court, but is so far from destroying the offices of district judges, 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 judges. 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 other 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 should 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 offices already existing? I fear that if this construction be adopted, our labours 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 honourable 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 give them more liberal ideas than they might otherwise possess. Nay, if they reside long enough in foreign countries, they may become acquainted with the manners of the people, and acquire 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 conveniently acquired in the closet than upon 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 precedent? Is this to conVOL. II.

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trol 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 disposition, 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 there is an inestimable treasure put into the hands of drunkards, madmen, and fools.

But away with all these derogatory suppositions. The legislature may be trusted. Our government is a system of salutary 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 honour, high in the public confidence, charged with weighty concerns, responsible to his own regulation, 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 their talents, for their virtue; of men in advanced life, and of matured judgment. It appeals to their understanding, to their integrity, to their honour, to their love of fame, to their sense of shame. If all these checks should prove insufficient, and, alas! such is the condition of human nature, that I fear they will not always be sufficient, the constitution has given us one more. It has given us an independent judiciary. 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 all other taxes, are collected, and all expenditures are made by officers whom he has appointed. So far he executes your laws. But these his acts do not often apply to in