On the judiciary question, I wrote my sentiments to Mr. Wilson Nicholas early in the session. I am sorry our friends have taken so peremptory a position, as the very circumstance of having taken it will render it difficult to move them. I cannot concur with them in the policy or expediency of the measure. The business of the court will not allow me to give my reasons in detail, but you shall have my brief.
1. There never was a case in which a party could be more justified in expressing their resentment, on account of the manner of passing the act; the manner of organizing the courts; the nature of the opposition to the repeal, denying its constitutionality, and menacing a civil war.
2. The repeal would be constitutional, from a review of the principles, and terms of the constitution itself; of the peculiar situation of the country ; its growing population ; its extending prospects; its increasing wants, pursuits, and refinements, &c.; of the analogy to the Judiciary Institution of England, where independent of the legislature is not within the policy or provision of the statutes relative to the commissions of the judges; of the analogy to the Judiciary Institutions of the sister states, which have all been subject to legislative interference occasionally. In Pennsylvania particularly, the constitution declares that the judges shall hold their commissions during good behaviour; yet it expressly authorizes the legislature to abolish the Court of Common Pleas, &c.; and of the precedents in the existing act of Congress, which is an exercise of the power sub modo.
3. But notwithstanding the indignation I feel, in common with our friends, at the manner of passing the Circuit Court act; and notwithstanding my perfect conviction that Congress has the power of repealing the act, I think the repeal would be impolitic and inexpedient. If it would be impolitic acting on party principles, it would be inexpedient of course; but I mean, also, that it would be inexpedient on account of the use that Pennsylvania (and I presume the same as to other states) has derived from the institution:
1st. It is impolitic.
The republicans are not agreed on the constitutionality of the repeal. The people at large have imbibed strong prejudices on the subject of judicial independence. The repeal would be ascribed to party animosity; and if future amendments should be made, it would be considered as a personal proceeding, merely to remove the present judges: the hazard of loss in public opinion is greater than the hope of gain. There is a mass of the community that will not be fermented by the leaven of party passions. By persons of this description, the motive and effect will be strictly analyzed and purified. The mere resuscitation of the old system will either expose the administration of justice to inconceivable embarrassments, or demonstrate the motive to be abstractedly a party one, by calling for an immediate reform. The clamour of the federalists will at least have a reasonable foundation.
2. It is inexpedient.
The mere repeal will reinstate a system which every man of common sense and candour must deprecate. It will entirely destroy institutions susceptible of being modelled into a form economical as well as useful. It will deprive some states of tribunals which have been found highly advantageous, to the despatch of business. I allude particularly to Pennsylvania. In this state justice, as far as respects our state courts, is in a state of dissolution, from the excess of business and the parsimony of the legislature.
With this view of the subject you will perceive that I think—First, There ought not to be a total repeal. Second, There ought to be amendments.
If, however, a repeal should take place, I am clearly of opinion that it would be unjustifiable to make any provision for the ex-judges. On this point and on the introduction of amendments I will, if you desire it, amplify by a future post.