FOOTNOTES:
[1510] See 51-53 of this volume.
[1511] Jefferson MSS. Lib. Cong.
APPENDIX B
Letter of John Taylor "of Caroline" to John Breckenridge containing arguments for the Repeal of the Federalist National Judiciary Act of 1801[1512]
Virginia—Caroline—Decr 22ḍ 1801
Dear Sir
An absence from home, when your letter arrived, has been the cause which delayed this answer.
I confess that I have not abstracted myself from the political world, but I must at the same time acknowledge, that this kind of world, of which I am a member, is quite distinct from that in which your country has placed you. Mine is a sort of metaphysical world, over which the plastick power of the imagination is unlimited—yours, being only physical, cannot be modulated by fancy. The ways of mine are smooth & soft; of yours, rugged & thorny. And a most prosperous traveller into the political world which I inhabit, generally becomes unfortunate if he wanders into the region of which you are now a resident. Yet, as a solicitation for the continuance of your correspondence, I will venture upon a short excursion out of my own atmosphere, in relation to the subject you state.
By way of bringing the point into plain view, I will suppose some cases. Suppose a congress and president should conspire to erect five times as many courts & judges, as were made by the last law, meerely for the sake of giving salaries to themselves or their friends, and should annex to each office, a salary of 100,000 dollars. Or suppose a president in order to reward his counsel on an impeachment, and the members of the senate who voted for his acquittal, had used his influence with the legislature to erect useless tribunals, paid by him in fees or bribes. Or, lastly, suppose a long list of courts and judges to be established, without any ill intention, but meerly from want of intellect in the legislature, which from experience are found to be useless, expensive and unpopular. Are all these evils originating either in fraud or error, remediless under the principles of your constitution?
The first question is, whether the office thus established, is to continue.
The second, whether the officer is to continue, after the office is abolished, as being unnecessary.
Congress are empowered "from time to time to ordain & establish inferior courts."
The law for establishing the present inferior courts, is a legislative construction, affirming that under this clause, congress may abolish as well as create these judicial offices; because it does expressly abolish the then existing inferior courts, for the purpose of making way for the present.
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 courts, and establishing the present, was unconstitutional, and being so, is undoubtedly repealable.
Thus the only ground which the present inferior courts can take, is, that congress may from time to time, regulate, create or abolish such courts, as the public interest may dictate, because such is the very tenure under which they exist.
The second question is, whether the officer is to continue after the office is abolished, as being useless or pernicious.
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 the officer should hold that which he might hold, namely, an existing office, so long as he did that 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 his office, unless you allow the constitution to intend impossibilities as well as absurdities. A construction bottomed upon either, overthrows the benefits of language and intellect.
The article of the constitution under consideration closes with an idea, which strongly supports my construction.
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 behaviour, because, if this had not been the case, the constitution would have directed "that the judges should hold their offices and salaries during good behaviour," instead of directing "that they should" hold the 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, tho' 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 for a moment tolerated, of maintaining burthensome sinecure offices, to enrich unfruitful individuals.
Nor is it incompatible with the "good behaviour" 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 outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords & commons, and ours by no similar or easy process.
The tenure however is evidently bottomed upon the idea of securing the honesty of Judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of 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 the government, which necessarily devolves upon it, and is beyond the foresight of a constitution, because it depends on variable circumstances. And in England, a regulation of the courts of justice, was never supposed to be a violation of the "good behaviour" 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 in grievances, it would be used in a mode, contemplated neither in its original or duplicate.
Whether courts are erected by regard to the administration of justice, or with the purpose of rewarding a meritorious faction, the legislature may certainly abolish them without infringing the constitution, whenever they are not required by the administration of justice, or the merit of the faction is exploded, and their claim to reward disallowed.
With respect to going into the judiciary system farther at present, the length of this trespass forbids it, and perhaps all ideas tending towards the revision of our constitution would be superfluous, as I fear it is an object not now to be attained. All my hopes upon this question rest I confess with Mr: Jefferson, and yet I know not how far he leans towards the revision. But he will see & the people will feel, that his administration bears a distinct character, from that of his predecessor, and of course discover this shocking truth, that the nature of our government depends upon the complection of the president, and not upon the principles of the constitution. He will not leave historians to say "this was a good president, but like a good Roman Emperor he left the principles of the government unreformed, so that his country remained exposed to eternal repetitions of those oppressions after his death, which he had himself felt and healed during his life."
And yet my hopes are abated by some essays signed "Solon" published at Washington, and recommending amendments to the constitution. They are elegantly written, but meerly skim along the surface of the subject, without touching a radical idea. They seem to be suggested by the pernicious opinion, that the administration only has been chargeable with the defectiveness of our operating government heretofore. Who is the author of these pieces?
Nothing can exceed our exultation on account of the president's message, and the countenance of congress—nothing can exceed the depression of the monarchists. They deprecate political happiness—we hope for the president's aid to place it on a rock before he dies.
It would have given me great pleasure to have seen you here, and I hope it may be still convenient for you to call. I close with your proposal to correspond, if the political wanderings of a man, almost in a state of vegitation, will be accepted for that interesting detail of real affairs, with which you propose occasionally to treat me. I am, with great regard, Dr Sir
Yr: mo: obt: Sevṭ
John Taylor[1513]