Remarks on the Repeal of the Judiciary Act, First Version, [11 February 1802]
Remarks on the Repeal of the Judiciary Act1
First Version
[New York, February 11, 1802]
After some pause, Gen. Hamilton rose. He began with stating his own decided opinion, that the contemplated repeal of the late act, taken in connexion with the known and avowed object of that repeal, was an unequivocal violation of the constitution in a most vital part. However, he did expect that on that point, the gentlemen present would be unanimous. Neither had he any hope that any representations whatever, would arrest the contemplated blow. In this opinion, and because he thought the Bar ought to hold themselves too high to idly commit their own dignity by an opposition which they must know would be fruitless, he was opposed to the idea of memorializing Congress at all. He observed also, that the reception which the petition of the Pennsylvania Bar had met with, and the manner in which the bill had been immediately afterwards hastened in its progress,2 gave no encouragement to the hope that ours would be better received. He then said that from respect to our brethren of Philadelphia, and since we were called upon to express an opinion, he inclined to the idea of a letter to those gentlemen, rather than a memorial. In this view he submitted the draft of a letter3 to the meeting, in which it had been endeavoured so to express, as that gentlemen of every political opinion might join in.…
Mr. Harison and Gen. Hamilton followed,4 and in a very able, dispassionate and conclusive manner, demonstrated the inefficacy of the former Judiciary system—the importance of an independent Federal Judiciary—and the trivial amount of its expence,5 compared with the benefits resulting from it, to every individual in the community.…
Gen. Hamilton again rose.6 He felt little zeal upon this subject, because he believed that no possible exertions could arrest the blow aimed at the constitution. Respecting what was observed of secret popular societies, he said, the baneful effects of them were not confined to modern times, but had been felt in some of the ancient republics, as was noticed by Montesquieu.7 He repeated, that they were the most dangerous engines ever employed against free governments. He mentioned the example of a great kingdon subverted by their influence, and which had found no relief but in the horrid calm of despotism. An occasional and public meeting of individuals to petition the legislature, have no resemblance to a secret, organized and extensive combination of political societies. He declared in the most emphatic manner, that if the bill for the repeal passed, and the independence of the Judiciary was destroyed, the constitution was but a shadow, and we should, e’er long, be divided into separate confederacies, turning our arms against each. He solemnly called heaven to witness his devout desire that the system of government adopted among us might prosper; but his hope in their prosperity was much weakened, when he perceived them becoming the spoil of popular intrigue, and one after another “crumbling beneath him.” Between a government of laws, administered by an independent Judiciary, or a despotism supported by an army, there was no medium. If we relinquish one, we must submit to the other. He pathetically deplored the event to which we hasten, but intimated no hope that any human exertions could avert it.…8
The New-York Gazette & General Advertiser, February 13, 1802.
1. This document consists of three accounts in New York City newspapers of H’s statements at a meeting of the New York City bar concerning a bill in Congress to change the judiciary system. John Breckenridge of Kentucky had introduced the measure in the Senate on January 6, 1802, and the Senate had passed it on February 3 by a vote of sixteen to fifteen (, XI, 23, 183). When H made the comments printed above, the bill was still being considered by the House. For H’s earlier discussion of this bill, see “The Examination Number V,” December 29, 1801, and “The Examination Number VI,” January 2, 1802. The House passed the bill on March 3, 1802 (, IX, 982), and it became law on March 8, 1802 (“An Act to repeal certain acts respecting the organization of the Courts of the United States; and for other purposes” [ 132]). The new law repealed the Judiciary Act of 1801 (“An Act to provide for the more convenient organization of the Courts of the United States” [ 89–100 (February 13, 1801)]) and “An Act for altering the times and places of holding certain Courts therein mentioned, and for other purposes ( 123–24 [March 3, 1801]) and essentially restored the system established by the Judiciary Act of 1789 (“An Act to establish the Judicial Courts of the United States” [ 73–93 (September 24, 1789)]). During the debates in the Senate and the House, the Republicans supported the repeal of the Judiciary Act of 1801 on the ground that the act was improper, unnecessary, and unconstitutional. Federalists, defending the Judiciary Act of 1801 as a necessary measure to provide the country with accessible and uniform justice, maintained that it was unconstitutional to abolish judgeships once Congress had created them (, XI, 25–41, 45–145, 154–83, 510–983).
On February 11, 1802, the New York City bar met, with Robert Troup serving as chairman, “to consider of the propriety of memorializing Congress against the repeal of the late Judiciary Act.” The meeting opened with a resolution by Richard Harison that the group send a petition to Congress defending the Judiciary Act of 1801. H participated at three separate times in the debate that ensued. When the members of the bar were unable to agree unanimously on this or any other resolution, a minority of those present, who supported the repeal of the Judiciary Act of 1801, withdrew from the meeting. According to the article in The New York Gazette & General Advertiser, “It was then proposed and agreed, as the draft of the letter before presented by Gen. Hamilton had avoided the expression of any opinion on the unconstitutionality of the Repeal of the late Judiciary Act, from a hope that it would be joined in by gentlemen of different opinions on that subject—that a clause should now be added expressive of the decided opinion of the gentlemen present, that the repeal of the act connected with the destruction of the office and emoluments of the Judges is an unequivocal violation of a vital and essential part of the Constitution.
“This clause being added the letter was agreed to, and signed.”
2. On January 30, 1802, the [Philadelphia] Gazette of the United States stated: “The Gentlemen of the Bar in this city have signed and forwarded to the Senate of the United States a memorial, praying that the law establishing the present judiciary system of the United States [the Judiciary Act of 1801] may not be repealed. The memorialists expressly decline giving any opinion upon constitutional or political grounds, and confine these remarks to the character of the court in this district, and to the superiority of the present system over that which existed previous to the act of last session. In these representations, gentlemen of both political parties agree.” For the text of the memorial, See the [Philadelphia] Gazette of the United States, February 5, 1802.
On February 2, 1802, James Ross of Pennsylvania presented the memorial from the Philadelphia bar to the Senate, and it was referred to the committee which had been created on January 27 to consider a bill for the repeal of the Judiciary Act of 1801. The Senate then dissolved the committee and on the following day passed the bill repealing the Judiciary Act of 1801 (, XI, 152–53, 183).
3. Letter not found.
4. The previous speaker, Richard Riker, a Republican and a New York City lawyer, had stated “that the late Judiciary act was not only useless, but hurtful and expensive. He thought the District Judges might do all the judicial business of the United States, subject to the correction of the Supreme Court. He offered resolutions expressive of the confidence of the meeting in the proper organs of the government, and that it would be improper to interfere with the deliberations of Congress. He disapproved the letter proposed by Gen. Hamilton, because it impeached either the discernment or the integrity of the Senate” (The New-York Gazette & General Advertiser, February 13, 1802).
5. The various amounts mentioned during the congressional debate which were supposed to represent the annual expense of maintaining the existing judiciary system were $137,000, $51,000, and $33,000 (, 30, 37, 54).
6. The previous speaker, Teunis Wortman, a New York City Republican and lawyer, had stated “that, after the clamor which had formerly been made about popular and self-created Societies, gentlemen could not, with propriety, come forward to influence the decisions of Congress by such a meeting as this” (The New York Gazette & General Advertiser, February 13, 1802).
7. Although it cannot be stated with certainty, H may have been referring to The Spirit of Laws, Book II, Chapter II.
8. Immediately following H’s comments the newspaper account reads: “We pretend not in this, to give an outline of all the leading ideas of Mr. Hamilton, much less to sketch the inimitable pathos and force of eloquence with which he spoke. Those who have longest known and most admired this admirable man, declare that they never heard him speak with superior ability, force, or effect” (The New-York Gazette & General Advertiser, February 13, 1802).