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by the same power, they might abolish the supreme court; and hence destroy the third department of the government; attempted to shew a distinction, in the constitutional provisions, for the two orders of courts; affecting to consider, the circuit courts, as creatures of the legislature, while they admitted, the court of appeals, was the designated, and appropriate, offspring of the constitution. If indeed, this idea was well founded-and as a consequence, the supreme court, could not be abolished, or deprived of its organization, by an act of congress, it might be acquiesced in; as giving to the department, all the independence of which it is susceptible, in a popu lation of rapid growth. But certain it is, that there is nothing in the constitution of the United States, which gives to the supreme court, any degree of security, more than is possessed, by a circuit, or district court. And without doubt, that court, would have found it so, if it had declared the act of congress, abolishing the circuit courts, unconstitutional; and thereby, obstructed its execution. The abolition act, would doubtless have been amended, and made to embrace the "supreme court," within its annihilating provisions--however "obvious and palpable," the violation of the constitution, might have been to the opposition, in point of fact.

Certain it is, as well from the nature of the subject, as from the provisions in the constitution, that it was desired, and intended, to give stability, to the judiciary department; and personal confidence to conscientiously upright judges, as well those of the inferior as of the supreme court. With these views, the constitution is made to declare, that, "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the congress may from time, to time ordain and establish." Going on thence, to place the judges of both descriptions of courts, exactly on the same footing, as to tenure of office, and compensation: as in the clause, cited, the different grades, of courts, were as parts of the same system, put under the same arrangement, in regard to their exemption from, the extinguishing power of congress. In a few words, if the supreme court of the United States, being U*

VOL. II.

once established, cannot be abolished; neither can an inferior court; for they are both embraced in the constitution, as to the power of congress, in terms, exactly equivalent; in relation to stability. What, let it be asked, in the cited clause, gives stability to either, superior, or inferior court? The answer, must be, its being "ordained, and established;" by an act of congress. Since, without such an act, no court, of either description, can get into existence; and to limit the operation of those words, to the inferior court, or courts, would in effect, leave "the supreme court," destitute of even that protection; as well as all other security: although requiring it the most, as being the head of the department; and therefore the most exposed to the other co-departments; from which only, it has to apprehend annoyance. But does the words, "ordain and establish," or either of them, afford any security to either court, in point of permanency? That, either, and especially both, should do it, seems the genuine and necessary effect, of their use. Their meaning is, to perpetuate, not abolish: when connected with the words; "from time to time," as in the constitution; they mean, at different times; in succession of time; not all at once; but as they may be necessary. The constitution does not provide that congress, shall, or may, from time to time abolish, the supreme, and inferior courts, of the United States, and ordain, and establish others, in their stead-or leave the country without them. And unless it can be made to appear, that to "ordain, and establish," is the equivalent of abolishing and annihilating; while it is believed, they are exactly the reverse, there can be no authority found in the constitution of the United States, to countenance, much less, authorize, the act of 1801-2, by which the circuit courts were abolished. So much has been said of the courts, as distinguishable from the judges, who organize them: and now, a word, as to these organs of the system, the judges.

It is apparent, that the constitution was intended to be consistent on the subject of the judiciary; and that to a permanent system of courts, it meant to add independent judges, in order that the constitution, and laws, made conformably to it, and

Do others, should be administered, with firmness, and good faith. And this permanency of system, and firmness of the judges, became the more important, and necessary to be ensured, in proportion to the magnitude of the interests, both of the states, and of the United States, as also of those internal, and external rights and claims, which were probably to be in volved in their decisions. All this is apparent, even from what has been seen; and may be rendered still more so, by reflec tions on the tenure of office "during good behaviour," the security of compensation held out to the judges, and the duty, implying power, of supporting the constitution; enjoined on them in their official oath, by declaring laws of congress, and even state constitutions, contrary to the constitution and laws of the Unites States, void, and of no effect. How totally repugnant to these ideas, is that of a rightful power in congress, to abolish these courts, or any of them, by an act of the majority. What court, subject to the will of a majority of legislators, dare declare an act of that majority, a nullity? The very proposition creates a self-evident political solecism; a palpable absurdity, And which, if it was deducible from the constitution, would justly stigmatize its makers with fatuity. But the constitution forbids the suggestion of incongruity. It is true, it places each and every judge, who shall be accused of having violated the condition on which he holds his office, "his good behaviour," subject to be impeached, by one branch of congress, and tried by the other-but then, two-thirds, not a bare majority, must concur, to effect a removal of the accused from office. And this, it would seem, should convince any man of common sense, that the whole system of courts, including the very judge who may have been impeached, (or suppose them all impeached) was not constitutionally, at the will and disposal of a bare ma jority of congress. No: for the constitution requires two-thirds to remove from office.

The more attention has been paid to the repeal of the act of congress, establishing circuit courts, because of its analogy to the conduct of the legislature of Kentucky-and because of the conspicuous part which the Hon. John Breckenridge, one

of her senators, the author and advocate of the resolutions on the subjects of the alien and sedition laws, already noticed, acted in this grand assault on the constitution. It was to him, the cause of much eulogium from his party; and with a few other things of the kind, conducted him, by the grace and fa vour of President Jefferson, to the office of attorney general for the United States. And thus it is, that one perversion begets another..

It will be confessed, that the part taken by Mr. Breckenridge in relation to the courts, was countenanced and sustained by the previous conduct of the Kentucky legislature respecting their own courts; they having, at the same time, for their foundation and security, a constitution similar to that of the United States. Whence is to be seen, the same mode of viewing constitutions of government; the same cast of character; the same party spirit, in the head, and in the limbs; in the whole, and in the parts: a froward disposition, and a will, when found in a majority of such men, not to be restrained by constitutional checks on paper only; but requiring those of opposing interests, feelings, and sympathies, to be placed in a situation where they can operate with a countervailing effect. That is, in an other majority, of a different moral and political character, with a negative, on the proceedings of the former.

[1802.] The transactions in Kentucky, of 1802, are the next to claim attention. Passing over sundry acts about towns, and other local matters, the first to be noticed, is one "for establishing inspections of cotton." This act does not appear to have been amended, and was probably of but little use, as neither the quantity, nor quality, of Kentucky cotton, could at any time have made any respectable figure in foreign markets: nor does the state at this day supply the home demand.

The next, "An act to incorporate the Kentucky Insurance company," has had a much more extensive effect. This act, is an instance of legislating upon motives, and for purposes not avowed, by those who take the lead. As to very many of the followers, on complicated questions, it has been supposed, by good observers, that they neither had motives nor purposes,

in their votes. Of the British house of commons, consisting then of between five and six hundred members, it was said by one of them, that there were about thirty who thought; and that the business of the house was done by half a dozen or less. But it will not be presumed, that the British parliament was at any time equal to the legislature of Kentucky, consisting of less than one hundred members; much less will the thinking men in the latter be proportioned by those in the former: but be all this as it may, the law in question, when in the shape of a bill on its passage, was held up as very proper and necessary, to encourage the raising and exporting the produce of the country, by incorporating the "Insurance company"-an association of patriotic gentlemen, of Lexington and Louisville, principally, if not altogether-who would devote their funds, to ensure boats and cargoes, on the Ohio and Mississippi. Much care was taken in penning the bill, to insert all the proper clauses, to render the act competent to its objects. The bill was extended to twenty-five sections, occupying six or seven pages, drawn with great care, and "fair to behold," when it passed both houses, and received the governor's approbation.

There was, however, by some unaccountable means or other, a thing neither seen nor suspected, by the majority, a BANK OF CIRCULATION infused into its composition. And although the operator was afterwards accused of practising a deception upon his coadjutors, the dexterity and effect with which it was done, ensured to him, the full approbation of his employers, and constituents. The secret was this: The "Insurance company," was authorized to take and give bonds, bills, notes, and obligations, in the course of their business; also to receive, and pass them by assignment; "and such of the notes as are payable to bearer, shall be negotiable and assignable by delivery only." This was the pregnant clause which brought forth the bank. The notes payable to bearer, were made negotiable by delivery. It was only to make all payable to bearer, and all might pass by delivery. And when vested with these properties, they were so much like bank bills, that it required much less genius for trade and negotiation than Lexington possessed,

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