To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris

23 • Speeches in the Senate on the Repeal of the Judiciary Act of 1801

303 Reprinted from Jared Sparks, The Life of Gouverneur Morris, with Selections from his Correspondence and Miscellaneous Papers (Boston: Gray & Bowen, 1832), 3:365–402. A partial draft of the second speech is in the Gouverneur Morris Papers, Rare Book and Manuscript Library, Columbia University, item 844. The speeches are also in The Debates and Proceedings in the Congress of the United States, 7th Cong. (Washington : Gales and Seaton, 1851), 36–41 and 76–92. The full text of the Debates is available from the Library of Congress website: http://memory.loc.gov/ammem/amlaw/ lwac.html. 23 • Speeches in the Senate on the Repeal of the Judiciary Act of 1801 On April 3, 1800, Morris became a member of the U.S. Senate as a Federalist from New York. His Senate term lasted until March 3, 1803, and thus spanned the transition from Adams and the Federalists to Jefferson and the Democratic-Republicans—the first peaceful transfer of power between rival parties. But the transition had not been entirely free of bitterness . The Judiciary Act of 1801, passed in the lame duck session at the end of the Adams administration, was a particular irritant to the Jeffersonians. It had created a system of circuit courts with their own staff of judges, replacing the earlier practice of circuit courts composed of two Supreme Court justices and one District Court judge, a subject of much complaint by the justices. But the outgoing Adams administration had packed the new courts with Federalist judges—the “Midnight Judges” made famous by the case Marbury v. Madison. Repealing the Act thus became a legislative priority for the Jeffersonians when Congress reconvened in December 1801. The repeal passed the Senate on February 3 by a 16–15 vote. The constitutionality of abolishing the circuit courts was later upheld by the Marshall Court in Stuart v. Laird, 5 U.S. 299 (1803). 304 1. John Breckenridge of Kentucky (Senate Journal, January 6, 1802). FIRST SPEECH on thE JUDICIARY ESTABLISHMENT. DELivErEd in thE SEnatE oF thE UnitEd StatES, January 8th, 1802. Mr. President, I am so very unfortunate, that the arguments for repealing the law, to which this motion refers, have confirmed my opinion that it ought not to be repealed. The honorable mover1 has thought fit to rest his proposition upon two grounds; First, That the judiciary law, passed last session, is unnecessary and improper . Secondly, That we have, by the Constitution, a right to repeal it; and, therefore, ought to exercise that right. The numerical mode of argument he has made use of, to establish his first point, is perfectly novel, and, as such, it commands my tribute of admiration . This, indeed, is the first time I ever heard that the utility of Courts should be estimated by the number of suits, which they are called on to decide . I remember once to have read, that a justly celebrated monarch of England , the great Alfred, had enacted such laws, established such tribunals, and organized such a system of police, that a purse of gold might be hung upon the side of the highway, without any danger that it would be stolen. But, Sir, had the honorable gentleman from Kentucky existed in those days, he would, perhaps, have attempted to convince old Alfred, that he had been egregiously mistaken; and, that a circumstance, which he considered as the pride and glory of his reign, had arisen from its greatest defect and sorest evil. For, by assuming the unfrequency of crimes as the proof that tribunals were unnecessary, and thus boldly substituting the effect for the cause, the gentleman might have demonstrated the inutility of the institution, by the good which it had produced. Surely this kind of reasoning is, of all others, the most false and the most fallacious. But, Sir, if with that poor measure of ability, which it has pleased God to give me, I march on the ground I have been accustomed to tread, and which experience has taught me to consider as solid, I would venture the assertion , that in so far as our judicial institutions may accelerate the perfor- Repeal of the Judiciary Act of 1801 305 mance of duties, promote the cause of virtue, and prevent the perpetration of crimes, in that same degree ought they to be estimated and cherished. This, Sir, would be my humble mode of reasoning, but for the wonderful discovery made by the honorable mover...