o questions: first, whether Congress
could abolish courts created by a previous act of Congress; and second,
whether, with such courts abolished, their judges still retained office.
Addressing himself to the first question, Taylor pointed out that the
Act of the 13th of February had itself by instituting a new system
abolished the then existing inferior courts. As to the second point,
he wrote thus: "The Constitution declares that the judge shall hold his
office during good behavior. Could it mean that he should hold office
after it had been abolished? Could it mean that his tenure should
be limited by behaving well in an office which did not exist?" A
construction based on such absurdities, said he, "overturns the benefits
of language and intellect."

* In this connection Mr. Beveridge draws my attention to
Jefferson's letter to A. Stuart of April 5,1801. See the "Complete Works
of Jefferson" (Washington, 1857), vol. IV, p. 393.

In his message of December 8, 1801, Jefferson gave the signal for the
repeal of the obnoxious measure, and a month later Breckinridge of
Kentucky introduced the necessary resolution in the Senate. In the
prolonged debate which followed, the Republicans in both Senate and
House rang the changes on Taylor's argument. The Federalists made a
twofold answer. Some, accepting the Republican premise that the fate
of the judge was necessarily involved with that of the court, denied in
toto the validity of repeal. Gouverneur Morris, for instance, said: "You
shall not take the man from the office but you may take the office from
the man; you may not drown him, but you may sink his boat under him....
Is this not absurd?" Other Federalists, however, were ready to admit
that courts of statutory origin could be abolished by statute but added
that the operation of Congress's power in this connection was limited
by the plain requirement of the Constitution that judges of the United
States should hold office during good behavior. Hence, though a valid
repeal of the Act in question would take from the judges the powers
which they derived from its provisions, the repeal would still leave
them judges of the United States until they died, resigned, or were
legally removed in consequence of impeachment. The Federalist orators
in general contended that the spirit of the Constitution confirmed its
letter, and that its intention was clear that the national judges should
pass finally upon the constitutionality of