Alexander Hamilton Papers

The Examination Number VI, [2 January 1802]

The Examination.1
Number VI.

[New York, January 2, 1802]

In answer to the observations in the last number it may perhaps be said that the Message meant nothing more than to condemn the recent multiplication of Federal Courts,2 and to bring them back to their original organization: considering it as adequate to all the purposes of the Constitution; to all the ends of justice and policy.

Towards forming a right judgment on this subject, it may be useful to those who are not familiar with the subject, to state briefly what was the former and what is the present establishment.

The former consisted of one Supreme Court with six judges, who, twice a year made the tour of the United States, distributed into three circuits, for the trial of causes arising in the respective districts of each circuit; and of fifteen District Courts, each having a single judge.3 The present consists of one Supreme Court with the like number of judges, to be reduced on the first vacancy happening, to five; of six Circuit Courts, having three distinct judges each, excepting one circuit which has only a single Circuit judge; and of twenty-two District Courts with a judge for each as before: In both plans the Supreme Court is to hold two terms at the scat of government, and the Circuit Courts to be holden twice a year in each district. The material difference in the two plans, as it respects the organs by which they are executed is reducible to the creation of twenty-three additional Judges; sixteen for the six Circuits Courts, seven for the superadded District Courts, and the addition of the necessary clerks, marshals, and subordinate officers of seven Courts. This shews at a single view that the difference of expence as applied to the United States is of trifling consideration.

But here an enquiry naturally presents itself; why was the latter plan substituted to the former and more economical one? The solution is easy and satisfactory. The first was inadequate to its object, and incapable of being carried into execution. The extent of the United States is manifestly too large for the due attendance of the six Judges in the Circuit Courts. The immense journies they were obliged to perform, kept them from their families for several successive months in every year; this rendered the office a grievous burden, and had a strong tendency to banish or exclude men of the best talents and characters, from these important stations. It is known to have been no light inducement with one Chief Justice, whose health was delicate, to quit that office for another attended with less bodily fatigue;4 and it is well understood that other important members of the Supreme Court were prepared to resign their situations, if there had not been some alteration of the kind which has taken place. It was also no uncommon circumstance for temporary interruptions in the health of particular judges, of whom only one was attached to a Circuit, to occasion a failure in the sessions of the Courts, to the no small disappointment, vexation and loss of the suitor.5 At any rate the necessity of visiting, within a given time, the numerous parts of an extensive circuit, unavoidably rendered the sessions of each Court so short, that where suits were in any degree multiplied, or intricate, there was not time to get through the business with due deliberation. Besides all this, the incessant fatigues of the judges of the Supreme Court, and their long and frequent absences from home, prevented that continued attention to their studies, which even the most learned will confess to be necessary for those, entrusted in the last resort with questions frequently novel, always of magnitude, affecting not only the property of individuals, but the rights of foreign nations, and the constitution of the country.

For these reasons it became necessary either to renounce the Circuit Courts, or to constitute them differently: the latter was preferred. The United States were divided into six Circuits, with a proper number of Judges to preside over each. No man of discernment will pretend that the number of circuits is too great. Surely three states forming an area of territory equal to that possessed by some of the first powers of Europe, must afford a quantity of business fully sufficient to employ three Judges on a Circuit, twice a year, and certainly not less than this will suffice for the dispatch of business, whether the number of causes be small or great. The inconsiderable addition made to the number of the District Courts will hardly excite criticism, and does not, therefore, claim a particular discussion, nor will their necessity be generally questioned. They are almost continually occupied with revenue, and admiralty causes; besides the great employment collaterally given to the Judges, in the execution of the Bankrupt Act,6 which probably must encrease instead of being diminished.

Perhaps it may be contended, that the Circuit Courts ought to be abolished altogether, and the business for which they are designed, left to the State Courts, with a right of appeal to the Supreme Court of the United States. Indeed, it is probable that this was the true design of the intimation in the Message. A disposition to magnify the importance of the particular States, in derogation from that of the United States, is a feature in that communication, not to be mistaken. But to such a scheme there are insuperable objections. The right of appeal is by no means equal to the right of applying, in the first instance, to a Tribunal agreeable to the suitor. The desideratum is to have impartial justice, at a moderate expence, administered “promptly and without delay;” not to be obliged to seek it through the long and tedious and expensive process of an appeal. It is true, that in causes of sufficient magnitude, an appeal ought to be open; which includes the possibility of going through that process: but when the Courts of original jurisdiction are so constituted as not only to deserve but to inspire confidence, appeals, from the inevitable inconvenience attached to them, are exceptions to the general rule of redress; where the contrary is the situation, they become the general rule itself. Appeals then multiplied to a pernicious extent; while the difficulties to which they are liable, operate in numerous instances as a preventative of justice, because they fall with most weight on the least wealthy suitor. It is to be remembered, that the cases in which the Federal Courts would be preferred, are those, where there would exist some distrust of the State Courts; and this distrust would be a fruitful source of appeals. To say that there could be no good cause for this distrust, and that the danger of it is imaginary, is to be wiser than experience, and wiser than the constitution. The first officer of the Government, when speaking in his official capacity, has no right to attempt to be thus wise. His duty exacts of him that he should respectfully acquiesce in the spirit and ideas of that instrument under which he is appointed.

The detail would be invidious, perhaps injurious; else it would be easy to shew, that however great the confidence to which the tribunals in some of the States are entitled, there is just cause for suspicion as to those of others; and that in respect to a still greater number, it would be inexpedient to delegate to them the care of interests which are specially and properly confided to the Government of the United States.

The plan of using the State Courts as substitutes for the Circuit Courts of the Union, is objectionable in another view. The citizens of the United States have a right to expect from those who administer our Government, the effacious enjoyment of those privileges as suitors for which the Constitution has provided. To turn them round, therefore, from the enjoyment of those privileges, in originating their causes to the eventual and dilatory resource of an appeal, is in a great degree to defeat the object contemplated. This is a consideration of much real weight, especially to the merchants in our Commercial States.

In the investigation of our subject, it is not to be forgotten, that the right to employ the agency of the State Courts for executing the laws of the Union, is liable to question, and has, in fact, been seriously questioned. This circumstance renders it the more indispensible, that the permanent organization of the Federal Judiciary should be adapted to the prompt and vigorous execution of those laws.

The right of Congress to discontinue judges, once appointed, by the abrogation of the Courts for which they were appointed, especially as it relates to their emoluments, offers matter for a very nice discussion, but which shall now be but superficially touched.

On the one head it is not easy to maintain that Congress cannot abolish Courts, which having been once instituted, are found in practice to be inconvenient and unnecessary: On the other, if it may be done, so as to include the annihilation of existing Judges, it is evident that the measure may be used to defeat that clause of the Constitution which renders the duration and emoluments of the judicial office coextensive with the good behavior of the officer;7 an object essential to the independence of the Judges, the security of the citizen and the preservation of the government.

As a medium which may reconcile opposite ideas and obviate opposite inconveniences, it would perhaps, be the best and safest practical const[r]uction to say, that though Congress may abolish the Courts, yet shall the actual Judges retain their character and their emoluments, with the authorities of office, so far as they can be exercised elsewhere than in the courts. For this construction a precedent exists in the last arrangement of the Judiciary. Though the number of Judges of the Supreme Court is reduced from six to five, yet the actual reduction is wisely deferred to the happening of a vacancy.8 The expence of continuing the salaries of the existing incumbent, cannot prudently, be put in competition with the advantage of guarding from invasion, one of the most precious provisions in the Constitution. Nor ought it to be without its weight, that this modification will best comport with good faith on the part of Government, towards those who had been invited to accept offices, not to be held by an uncertain tenure, but during good behavior.

Weighing maturely all the very important and very delicate considerations, which appertain to the subject, would a wise or prudent statesman hazard the consequences of immediately unmaking at one session, Courts and Judges which had only been called in into being at the one preceding? Delectable indeed must be the work of disorganization to a mind which can thus rashly advance in its prosecution! Infatuated must that people be, who do not open their eyes to projects so intemperate—so mischievous! Who does not see what is the ultimate object? “Delenda est Carthago9—ill-fated Constitution, which Americans had fondly hoped would continue for ages, the guardian of public liberty, the source of national prosperity!

Lucius Crassus.

New-York Evening Post, January 2, 1802.

1For background to this document, see the introductory note to “The Examination Number I,” December 17, 1801. For the section of Thomas Jefferson’s first annual message to Congress on December 8, 1801, to which H is referring, see “The Examination Number I,” December 17, 1801, note 1.

In JCHW description begins John C. Hamilton, ed., The Works of Alexander Hamilton (New York, 1851–1856). description ends , VII, 766–71, and HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , VIII, 277–84, this document is dated “January, 1802.”

3For the original organization of the Federal courts, see “An Act to establish the Judicial Courts of the United States” (1 Stat, 73–93 [September 24, 1789]).

4William Cushing, an associate justice of the Supreme Court of the United States, was nominated by George Washington as Chief Justice of the United States on January 26, 1796, and the Senate confirmed the nomination on the following day (Executive Journal, I description begins Journal of the Executive Proceedings of the Senate (Washington, 1828), I. description ends , 198). Cushing resigned his commission as Chief Justice a week after he had been appointed because of old age and poor health. See James Iredell to Hannah Iredell, February 20, 1796 (Griffith McRee, Life and Correspondence of James Iredell, One of the Associate Justices of the Supreme Court of the United States, II [New York, 1858], 460).

5See ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Miscellaneous, I, 77–78; John Jay to Rufus King, December 19, 22, 1793 (King, The Life and Correspondence of Rufus King description begins Charles R. King, ed., The Life and Correspondence of Rufus King (New York, 1894–1900). description ends , I, 469–70, 509).

6“An Act to establish an uniform System of Bankruptcy throughout the United States” (2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 19–36 [April 4, 1800]).

7Article III, Section 1, of the Constitution.

8Section 3 of “An Act for the more convenient organization of the Courts of the United States” reads: “And be it further enacted, That from and after the next vacancy that shall happen in the said court, it shall consist of five justices only; that is to say, of one chief justice and four associate justices” (2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 89 [February 13, 1801]).

9“Carthage must be destroyed” was the motto used at the end of every speech made by Cato the Elder, a Roman statesman.

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