were required to hold a court, one was now declared sufficient. Thus you continued their full salaries, while you lopped off half their duties. Shortly after, you assigned them, under the pension law, inconsiderable duties; and they refused to perform them. Thus, while they showed themselves ready to abate of their duties, they adhered to their salaries. Next came the law of last session which takes away all their duties. It leaves them simply a court of appeals. And what have they got to do? To try ten suits; for such is the number now on their docket, as appears from a certificate just put into my hands; and the average number on their docket amounts to from eight to ten. Thus, for the trial of the immense number of eight or ten suits, you have six judges, one with a salary of four thousand, and five others with salaries of three thousand, five hundred dollars each.

I fear that if you take away from these judges, that which they ought officially to do, they will be induced, from the want of employment, to do that which they ought not to do, they may do harm. They may be induced, perhaps, to set about that work gentlemen seem so fond of. They may, as gentlemen have told us, hold the constitution in one hand, and the law in the other, and say to the departments of government, so far shall you go and no farther. This independence of the judiciary, so much desired, will, I fear, sir, if encouraged or tolerated, soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently become so strong, as to crush and absorb all the others into their solid mass.

We have been told, that no state in the union has presumed to touch the judiciary establishment, excepting the state of Maryland. I will not answer for others; but with respect to Virginia, I will answer, that she has touched it. Her constitutional provision for the independence of the judges is nearly similar to that

of the United States, and yet she has established, modified and entirely put down particular departments of her system.

[Here Mr. Mason went into a particularization of the different changes the judiciary system of Virginia had undergone. After the particularization, Mr. Mason proceeded,]

And yet our judges, who are extremely tenacious of their rights, did not complain. They thought, as I think, that they should not be removed from their offices, that others might be placed in them; and that while they did continue in office, their salaries should be preserved to them. And I believe the whole of our constitutional provision amounts to this; that, unlike other officers appointed by the President, they shall not be removed by him; that their salaries shall not be diminished by the legislature; and that, while the legislature may continue any particular judicial establishment under which a judge is appointed, he shall hold that appointment in defiance of both the other departments of government. A judge may say, I am not to be turned out of office by the President on the one hand, or starved by the legislature on the other. He may say to the legislature or the President, and to both of them combined, you shall not turn me out of this office as long as it exists, to gratify your enmity to me, or your favoritism to another person; so long as the interest and convenience of the people require this institution, they are entitled to my services; they shall have them, and I will be paid for them to the utmost farthing, in spite of your displeasure or caprice.

Notwithstanding the remarks of gentlemen, I am inclined to think these ideas of the extreme independence of the judges, and the limited powers of the legis lature, are not very old, but they are of modern origin, and have grown up since the last session of Congress. For, in the law passed last session, that very law which it is now proposed to repeal, is to be found a practical

exposition in direct hostility with the principle now contended for, which does not betray that sacred regard for the office of a judge, that is, on this occasion, professed in that very law will be found a clause which abolishes two district courts. The twentyfourth section says expressly, "the district courts of Kentucky and Tennessee shall be and hereby are abolished." Will gentlemen tell this House how this express provision came into the act of the last session; and will they say, that though they voted for this law, yet no power exists in the legislature to abolish a court? It is true, that it has been said, that though you put down two district courts, you promoted the officers by increasing their salaries and making them judges of the circuit courts; but the fact is, you have abolished their offices; they are judges no longer of the districts of Kentucky and Tennessee; and they are, to every purpose, whatever may be their name, in reality circuit judges. Though you have not lessened their salaries, you have deprived them of their offices. However, therefore, gentlemen may calculate as to the benefit or injury done these two judges, the principle is not affected by any result; their offices are gone.

It is not enough to say, that though you destroyed their offices, you offered them others with higher salaries. You took away from them, in express terms, their offices, by abolishing the offices. You had stripped them of their offices, you had robbed them of their vested right, and then, to make friends, offered them a compensation; but whether the compensation thus offered for the deprivation they had suffered, was really equivalent to their loss, is a mere matter of calculation, and does not affect the constitutional principle. It is proper, however, to observe, that they were no parties to the proposed compromise, and that, indeed, they had no choice left them. They were obliged to accept of what you offered them, or have nothing. If they did not agree to become judges of the newly organized circuit courts, they could not remain

judges of the district courts, for these courts were absolutely and completely abolished.

Were I, Mr. President, to make a calculation on the comparative increase of duties and additional salary, in the case of one of those gentlemen, (Judge Innes, of Kentucky,) I should have no hesitation to say, that the bargain which has been made without his consent, and without his being a party to it, is a very bad one for him. Knowing too his particular situation, I am persuaded, that if the law had left him any election between his former and new situation, he would have preferred remaining where he was, and without a moment's hesitation, he would have rejected your proffered promotion, as it is called. This gentleman resides within a very few miles of Frankfort, where, as district judge of Kentucky, he held his court. Attached to domestic life, and enjoying all its felicities, engaged in and pleased with agricultural pursuits, he was never under the necessity, even during the sessions of the courts, to sleep out of his own bed one night, or to be separated a single day from his family. He could every morning give directions for the management of his farm, and return early enough in the evening to see whether his orders were executed.

How is he situated under the change which has been forced upon him? Instead of attending one court almost at his door, your late law obliges him to attend four. The nearest at Bairdstown, fifty or sixty miles from home. You oblige him to travel through dreary and inhospitable regions to the north-western territory, something short of an hundred miles; and much greater distances to, and through still worse countries, Knoxville and Nashville, in Tennessee. In going from one to the other of those last mentioned places, he will have to pass through the country of the Cherokee Indians, nearly one hundred miles over the Cumberland mountains, where he will be exposed to every inclemency of the weather, without a shelter to retire to, for there is not a house or a hut in the whole jour

ney; a journey in which all travellers are obliged, at all times, and of unavoidable necessity, to sleep one night at least, and from the fall of rains, and rise of watercourses, often many nights, without a roof to cover them from the beating of the storm; and moreover, where they are liable at every step to be robbed by the Indians, as I myself experienced, passing through that wilderness. Can it be supposed, that the five hundred dollars added to the salary of Judge Innes, should, by a person situated as he was, be deemed a sufficient compensation for the additional duties, the toils, the dangers, and the deprivations to which that law subjected him? In continuing to serve his country, I am sure he must have been influenced more by a sense of duty than a regard to private interest, or a belief that the change was in any respect advantageous to him.

By the seventh section of the law of the last session, which transforms the district into circuit courts, which melts down the judges and recoins them, it is enacted: That there shall be a circuit court, composed of one new circuit judge, and two old district judges, to be called the sixth circuit. Have you not then established a new office by the destruction of the old one? Have you not done more? Have you not violated the constitution, by declaring, by law, who shall fill this new office: though the constitution declares, article second, section second, That the President shall nominate, and by and with the advice and consent of the senate, shall appoint all officers which shall be established by law.

Where were these guardians of the constitutionthese vigilant sentinels of our rights and liberties, when this law passed? Were they asleep upon their post? Where was the gentleman from New York, who has, on this debate, made such a noble stand in favor of a violated constitution? Where was the Ajax Telamon of his party, or, to use his own more correct expression, the faction to which he belonged? Where was the