controversy which had raged over the establishment of inferior federal courts in the convention of 1787 and in the first Congress was reopened. Not only the repeal of the obnoxious act of 1801 was demanded, but many wished to have the jurisdiction of the federal courts curtailed and the inferior courts abolished entirely. Senator Breckinridge was urged to "go farther and make such a change in the Constitution as to limit the jurisdiction of the Federal courts to courts of admiralty and cases arising under the Constitution." If this could not be done, he was asked to "have it done away with in the State of Kentucky." His constituents pointed out that Kentucky was so remote from the Atlantic and had interests so distinct from the eastern section of the country that the exercise of authority by the federal courts interfered materially with their welfare.20

Breckinridge was not long in making up his mind to lead the movement for the repeal of the unpopular law. About the time the first message of President Jefferson was read in Congress he wrote to John Taylor of Caroline asking his views on the judicial system, 20 Breckinridge MSS., Feb. 22, 1802.

and requesting some suggestions as to how a revision might be brought about. In reply Taylor wrote a long academic argument which became the basis of the Republican attack in the debates in Congress on the repeal. He considered that the question possessed two phases: first, whether the office should continue; and second, whether the officer should continue after the office had been abolished as being unnecessary. As to the first, he said:

Congress are empowered from time to time to ordain and establish inferior courts. The law for establishing the present inferior courts is a legislative instruction affirming that, under this clause, Congress may abolish as well as create these judicial offices; because it does expressly abolish the then existing courts for the purpose of making way for the present.21

It is probable that this construction is correct, but it is equally pertinent to our object whether it is or not. If it is, then the present inferior courts may be abolished as constitutionally as the last; if it is not, then the law for abolishing the former and establishing the present was unconstitutional, and being so, is undoubtedly repealable. Thus the

21 Although the act of 1801 abolished the district courts in Kentucky and Tennessee the judges were retained in the new circuit courts.

only ground which the present inferior courts can take is that Congress may from time to time create, regulate, or abolish such courts as the public interest dictate, because such is the very tenure under which they exist.22

The tenure of the judges whose courts had been abolished by the act of 1801 had not been abridged, but it would be little suited to the purposes of Breckinridge and his partisans if they, after abolishing the circuit courts, were obliged to create new courts for the sixteen judges whose offices had been destroyed. Taylor, therefore, in the second part of his argument, sought to point out a way by which the commissions might be destroyed as well as the offices. He said:

The Constitution declares that the judge shall hold his office during good behavior. Could it mean that he should hold this office after it was abolished? Could it mean that his tenure should be limited by behaving well in an office which did not exist? It must either have intended these absurdities or admit of a construction which will avoid them. This construction obviously is that an officer should hold that which he might hold, namely an existing office, so long as he did that 22 Breckinridge MSS., Dec. 22, 1801.

which he might do, namely his duty in that office; and not that he should hold an office which did not exist or perform duties not sanctioned by law. If, therefore, Congress can abolish the courts, as they did by the last law, the officer dies with the office, unless you allow the Constitution to admit impossibilities as well as absurdities.

Moreover the salary is to be paid during their continuance in office. This limitation of salary is perfectly clear and distinct. It literally excludes the idea of paying a salary when the officer is not in office; and it is undeniably certain that he cannot be in office when there is no office. There must have been some other mode by which the officer should cease to be in office than that of bad behavior, because if this had not been the case the Constitution would have directed that the judges should hold their offices and salaries during their good behavior, instead of directing that they should hold their salaries during their continuance in office. This could only be an abolition of the office itself by which the salary would cease with the office although the judge might have conducted himself unexceptionably. This construction certainly coincides with the public opinion and the principles of the Constitution. By neither is the idea tolerated of maintaining burthensome sinecure offices to enrich unfruitful individuals.

Nor is it incompatible with the good behavior

tenure when its origin is considered. It was invented in England to counteract the influence of the crown over the judges. And we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstripped monarchists in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords and Commons, and ours by no similar or easy process.

The tenure, however, is evidently bottomed on the idea of securing the honesty of judges while exercising the office, and not upon that of sustaining useless or pernicious offices for the sake of the judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of government which necessarily devolves upon it, and is beyond the foresight of a constitution because it depends upon variable circumstances. And in England a regulation of the courts of justice was never supposed to be a violation of the good behavior tenure. If this principle should disable Congress from erecting tribunals which temporary circumstances might require, without entailing them upon the society after these circumstances by ceasing had converted them into grievances, it would be used in a mode contemplated neither in its original or duplicate.

Whether courts are erected by a regard to the