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1801Examination 6:
1THE EXAMINATION.
2Number VI.
3[New York, January 2, 1802]
4In answer to the observations
5 in the last number
6 it may perhaps be said
7 that the Message meant nothing more
8 than to condemn
9 the recent multiplication
10 of Federal Courts,
11 and to bring them back
12 to their original organization:
13 considering it as adequate
14 to all the purposes
15 of the Constitution;
16 to all the ends
17 of justice and policy.
18Towards forming a right judgment
19 on this subject,
20 it may be useful
21 to those who are not familiar
22 with the subject,
23 to state briefly
24 what was the former
25 and what is the present establishment.
26The former consisted
27 of one Supreme Court
28 with six judges,
29 who, twice a year
30 made the tour
31 of the United States,
32 distributed into three circuits,
33 for the trial of causes
34 arising in the respective districts
35 of each circuit;
36 and of fifteen District Courts,
37 each having a single judge.
38The present consists
39 of one Supreme Court
40 with the like number of judges,
41 to be reduced
42 on the first vacancy happening,
43 to five;
44 of six Circuit Courts,
45 having three distinct judges each,
46 excepting one circuit
47 which has only a single Circuit judge;
48 and of twenty-two District Courts
49 with a judge for each as before:
50 In both plans
51 the Supreme Court
52 is to hold two terms
53 at the seat of government,
54 and the Circuit Courts
55 to be holden twice a year
56 in each district.
57The material difference
58 in the two plans,
59 as it respects the organs
60 by which they are executed
61 is reducible to the creation
62 of twenty-three additional Judges;
63 sixteen for the six Circuit Courts,
64 seven for the superadded
65 District Courts,
66 and the addition
67 of the necessary clerks, marshals,
68 and subordinate officers
69 of seven Courts.
70This shows at a single view,
71 that the difference of expense,
72 as applied to the United States,
73 is of trifling consideration.
74But here an inquiry
75 naturally presents itself;
76 why was the latter plan
77 substituted to the former
78 more economical one?
79The solution is easy and satisfactory.
80The first was inadequate
81 to its object,
82 and incapable
83 of being carried into execution.
84The extent of the United States
85 is manifestly too large
86 for the due attendance
87 of the six judges
88 in the Circuit Courts.
89The immense journeys
90 they were obliged to perform,
91 kept them from their families
92 for several successive months
93 in the year;
94 this rendered the office
95 a grievous burden,
96 and had a strong tendency
97 to banish or exclude
98 men of the best talents
99 and characters
100 from these important stations.
101It is known
102 to have been no light inducement
103 with one Chief Justice,
104 whose health was delicate,
105 to quit that office
106 for another
107 attended with less bodily fatigue;
108 and it is well understood
109 that other important members
110 of the Supreme Court
111 were prepared to resign their situations,
112 if there had not been some alteration
113 of the kind
114 which has taken place.
115It was also no uncommon circumstance
116 for temporary interruption
117 in the health of particular judges,
118 of whom only one
119 was attached to a circuit,
120 to occasion a failure
121 in the sessions of the courts;
122 to the no small disappointment,
123 vexation and loss of the suitor.
124At any rate
125 the necessity of visiting,
126 within a given time,
127 the numerous parts
128 of an extensive circuit,
129 unavoidably rendered the sessions
130 of each court so short,
131 that, where suits were
132 in any degree multiplied,
133 or intricate,
134 there was not time
135 to get through the business
136 with due deliberation.
137Besides all this,
138 the incessant fatigues
139 of the judges
140 of the Supreme Court,
141 and their long and frequent absences
142 from home,
143 prevented that continued attention
144 to their studies,
145 which even the most learned
146 will confess to be necessary
147 for those,
148 intrusted in the last resort
149 with questions frequently novel,
150 always of magnitude,
151 affecting not only
152 the property of individuals,
153 but the rights of foreign nations,
154 and the Constitution of the country.
155For these reasons,
156 it became necessary
157 either to renounce the Circuit Courts,
158 or to constitute them differently:
159 the latter was preferred.
160The United States were divided
161 into six circuits,
162 with a proper number of judges
163 to preside over each.
164No man of discernment
165 will pretend
166 that the number of circuits
167 is too great.
168Surely three States,
169 forming an area of territory
170 equal to that possessed
171 by some of the first powers
172 of Europe,
173 must afford a quantity of business
174 sufficient to employ three judges
175 on a circuit, twice a year;
176 and certainly not less than three
177 will suffice for the dispatch
178 of business,
179 whether the number of causes
180 be small or great.
181The inconsiderable addition
182 made to the number
183 of the District Courts
184 will hardly excite criticism,
185 and does not, therefore,
186 claim a particular discussion,
187 nor will their necessity
188 be generally questioned.
189They are almost continually occupied
190 with revenue and admiralty causes,
191 besides the great employment
192 collaterally given to the judges,
193 in the execution
194 of the Bankrupt Act,
195 which probably must increase
196 instead of being diminished.
197Perhaps it may be contended,
198 that the Circuit Courts
199 ought to be abolished altogether,
200 and the business
201 for which they are designed,
202 left to the State Courts,
203 with a right of appeal
204 to the Supreme Courts
205 of the United States.
206Indeed, it is probable
207 that this was the true design
208 of the intimation in the Message:
209 A disposition
210 to magnify the importance
211 of the particular States,
212 in derogation from that
213 of the United States,
214 is a feature in that communication,
215 not to be mistaken.
216But to such a scheme
217 there are insuperable objections.
218The right of appeal
219 is by no means equivalent
220 to the right of applying,
221 in the first instance,
222 to a tribunal
223 agreeable to the suitor.
224The desideratum
225 is to have impartial justice,
226 at a moderate expense,
227 administered
228 "promptly and without delay;"
229 not to be obliged to seek it
230 through the long, and tedious,
231 and expensive process
232 of an appeal.
233It is true,
234 that in causes of sufficient magnitude,
235 an appeal ought to be open;
236 which includes the possibility
237 of going through that process;
238 but when the courts
239 of original jurisdiction
240 are so constituted
241 as not only to deserve,
242 but to inspire confidence,
243 appeals,
244 from the inevitable inconvenience
245 attached to them,
246 are exceptions
247 to the general rule of redress;
248 where the contrary is the situation,
249 they become the general rule itself.
250Appeals will then be multiplied
251 to a pernicious extent;
252 while the difficulties
253 to which they are liable,
254 operate in numerous instances
255 as a preventive of justice,
256 because they fall with most weight
257 on the least wealthy suitor.
258It is to be remembered,
259 that the cases
260 in which the Federal Courts
261 would be preferred,
262 are those,
263 where there would exist
264 some distrust of the State Courts;
265 and this distrust would be
266 a fruitful source of appeals.
267To say
268 that there could be no good cause
269 for this distrust,
270 and that the danger of it
271 is imaginary,
272 is to be wiser than experience,
273 and wiser than the Constitution.
274The first officer of the government,
275 when speaking in his official capacity,
276 has no right to attempt
277 to be thus wise.
278His duty exacts of him
279 that he should respectfully acquiesce
280 in the spirit and ideas
281 of that instrument
282 under which he is appointed.
283The detail would be invidious,
284 perhaps injurious;
285 else it would be easy to show,
286 that however great the confidence
287 to which the tribunals
288 in some of the States
289 are entitled,
290 there is just cause for suspicion
291 as to those of others;
292 and that in respect
293 to a still greater number,
294 it would be inexpedient to delegate
295 to them the care of interests
296 which are specially and properly
297 confided to the government
298 of the United States.
299The plan of using the State Courts
300 as substitutes
301 for the Circuit Courts of the Union,
302 is objectionable in another view.
303The citizens of the United States
304 have a right to expect
305 from those who administer
306 our government,
307 the efficacious enjoyment
308 of those privileges, as suitors,
309 for which the Constitution
310 has provided.
311To turn them round,
312 from the enjoyment of those privileges,
313 in originating their causes,
314 to the eventual and dilatory resource
315 of an appeal,
316 is in a great degree
317 to defeat the object contemplated.
318This is a consideration
319 of much real weight,
320 especially to the merchants
321 in our commercial States.
322In the investigation of our subject,
323 it is not to be forgotten,
324 that the right to employ the agency
325 of the State Courts,
326 for executing the laws of the Union,
327 is liable to question,
328 and has, in fact, been seriously questioned.
329This circumstance renders it
330 the more indispensable,
331 that the permanent organization
332 of the Federal Judiciary
333 should be adapted
334 to the prompt and vigorous execution
335 of those laws.
336The right of Congress
337 to discontinue judges once appointed,
338 by the abrogation of the courts
339 for which they were appointed,
340 especially as it relates
341 to their emoluments,
342 offers matter
343 for a very nice discussion,
344 but which shall now be
345 only superficially touched.
346On the one hand,
347 it is not easy to maintain
348 that Congress cannot abolish courts
349 which, having been once instituted,
350 are found in practice,
351 to be inconvenient and unnecessary.
352On the other,
353 if it may be done,
354 so as to include the annihilation
355 of existing judges,
356 it is evident
357 that the measure may be used
358 to defeat that clause
359 of the Constitution,
360 which renders the duration
361 and the emoluments
362 of the judicial office
363 coextensive with the good behavior
364 of the officer;
365 an object essential
366 to the independence of the judges,
367 the security of the citizen,
368 and the preservation
369 of the government.
370As a medium
371 which may reconcile opposite ideas,
372 and obviate opposite inconveniences,
373 it would, perhaps, be the best
374 and safest practical construction
375 to say,
376 that though Congress
377 may abolish the courts,
378 yet shall the actual judges
379 retain their character
380 and their emoluments,
381 with the authorities of office,
382 so far as they can be exercised
383 elsewhere than in the courts.
384For this construction,
385 a precedent exists
386 in the last arrangement
387 of the Judiciary.
388Though the number
389 of the judges of the Supreme Court
390 is reduced from six to five,
391 yet the actual reduction
392 is wisely deferred
393 to the happening of a vacancy.
394The expense of continuing the salaries
395 of the existing incumbents,
396 cannot prudently be put
397 in competition with the advantage
398 of guarding from invasion
399 one of the most precious provisions
400 in the Constitution.
401Nor ought it to be without its weight,
402 that this modification
403 will best comport with good faith,
404 on the part of government,
405 towards those
406 who had been invited
407 to accept offices,
408 to be held,
409 not by an uncertain tenure,
410 but during good behavior.
411Weighing maturely
412 all the very important
413 and very delicate considerations
414 which appertain to the subject,
415 would a wise or prudent statesman
416 hazard the consequences
417 of immediately unmaking,
418 at one session,
419 courts and judges,
420 which had only been called into being
421 at the one preceding?
422Delectable indeed
423 must be the work of disorganization,
424 to a mind
425 which can thus rashly advance
426 in its prosecution!
427Infatuated must that people be,
428 who do not open their eyes
429 to projects so intemperate—
430 so mischievous!
431Who does not see
432 what is the ultimate object?
433"Delenda est Carthago"—
434 ill-fated Constitution,
435 which Americans had fondly hoped
436 would continue for ages,
437 the guardian of public liberty,
438 the source of national prosperity!
439Lucius Crassus.
440New-York Evening Post, January 2, 1802.

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