Imágenes de páginas
PDF
EPUB
[blocks in formation]

were throughout the United States what these petitions prove them to be in the third circuit: an useless a dangerous discussion of the Constitutional question might be avoided. We were then told, sir, by another gentleman from Virginia, (Mr. RANDOLPH,) that a great Constitutional question had been raised, (raised let me add by the gentlemen who support the bill,) and that it must be decided. That gentleman then told us what that question was, "Whether the Judiciary is a co-ordinate or subordinate branch of our Government?" Defeated in both these attempts, we are at length brought to a consideration of the important principles of the first section of the bill on your table.

After the repeated declarations of the two gentlemen from Virginia, that the great Constitutional question must be decided, although in doing it a judicial establishment may be abolished, which is necessary to the administration of justice, those who oppose the passage of the bill might be excused from making any remarks on the question of expediency. Yet, sir, lest silence on that question should, by some others, be construed into an admission that the new system is not preferable to the old, now to be restored. I will take the liberty to submit a few remarks on that question.

FEBRUARY, 1802.

The

society in Virginia, but it is not such as the people of the United States meant to provide for themselves under that happy form of Government which they have adopted. In looking into the sixth article of the amendments to the Constitution, which have been adopted by the people, I find this expression of the public will, "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial," &c. If, sir, the old system is to be revived, what, let me ask, will be the condition of persons accused of crimes? And who may not be accused? It is acknowledged by those who advocate the repeal of this law, that under that system, owing to the vast distance which judges were obliged to travel, the rising of rivers, impassable roads, and various inevitable accidents, judges could not, and frequently did not, arrive in time to hold a court. same thing, owing to the same causes, will happen hereafter. What will be the consequence? Persons accused of crimes and confined in your jails to await their trials, must continue perhaps in the confinement of a dungeon six months longer before they can have an opportunity of having their guilt or innocence ascertained before a court of law. What, under this system, becomes of the right of the accused to a speedy trial, sacredly guarantied to him by the Constitution? If innocent, you punish him; if guilty, you inflict a double punishment, one before, and one after conviction. This consideration alone, in a free country, ought to outweigh all arguments arising from the trifling additional expense to which we are subject by the act proposed to be repealed. But however important the speedy administration of justice in criminal prosecutions, that alone was not all which the citizens intended to secure to themselves when they adopted this Constitution. The speedy administration of justice in civil actions was then deemed important. The Convention of the State of Virginia, when this Constitution was adopted, proposed certain amendments to it, and, among others, a bill of rights. In that bill of On a former occasion, which has been alluded rights I find the twelfth article expressed in this to, I took the liberty to suggest, as a reason for manner: "That every freeman ought to find a confining ourselves to an inquiry into the expedi-certain remedy, by recourse to the laws, for all ency of the measure only, that the organization injuries and wrongs he may receive in his perof the courts, as it now exists, was calculated to son, property, or character. He ought to obtain carry justice home to every man's door; another right and justice freely, and without sale; comgentleman from Virginia declared that to be the pletely, and without denial; promptly, and withvery reason why he should vote for the repeal of out delay; and that all establishments or regulathe law, intimating that we had too much Fede-tions, contravening these rights, are oppressive ral justice. I must believe that those gentlemen take, as the basis of their opinions, the position, that suits at law are evils in community, and infer that the organization of courts, which is best calculated to deter citizens from applying to them, is the best. Hold out to the citizens a prospect of an endless continuance of the evil, and they will not involve themselves in it.

I am induced to believe that there must exist between the several gentlemen from Virginia, who have spoken on this subject and myself, some radical difference of opinion as to what is a due administration of justice in courts of law. One gentleman from Virginia (Mr. THOMPSON) expressed his astonishment at what he was pleased to call, this immense establishment. To prove its inutility, he declared that he came from a State where justice was "truly and speedily" administered, and produced to the Committee a document to show that there are now pending before a court in that State, in which only one old man sits as judge, no less than two thousand six hundred and twenty-seven causes undecided.

For, sir, what prospect of justice can that suitor promise himself who sees that two thousand six hundred and twenty-seven causes, which have been accumulating for ten or twelve years, must be decided before his can be attended to? This administration of justice may suit the state of

[ocr errors]

6

6

and unjust." The Convention of North Carolina, copying after Virginia, adopted precisely the same amendments. Both those States then thought, that all establishments or regulations contravening the right of obtaining justice, promptly and without delay, were oppressive and unjust. Those amendments were proposed to the Constitution of the United States, and regarded the attainment of justice in the courts of the United States. Those States, then, were not afraid of a too prompt administration of federal justice. Now a system, which has confessedly been found to prevent courts from being holden, and to postpone suitors from term to term without trial, and which,

FEBRUARY, 1802.

Judiciary System.

H. OF R.

from the very nature of its organization, will Another has found it in the tyranny which will often produce that effect, is to be restored; and be established, if you suffer the judges to test the one which all agree is calculated to insure a laws by the Constitution. Another, in the words speedy trial, is to be abolished. I am not disposed" to promote the welfare," in the preamble to the to dwell long upon this subject, not having been Constitution. Another. in an exposition of the a member of this House when the act now to be word "hold," connected with that clause of the repealed passed. But, sir, when I heard the ob- Constitution, which authorizes the President to jections to the old system, and the advantages of grant commissions. the new one, so fully stated by the gentleman from And last of all, the gentleman from Virginia, Delaware, (Mr. BAYARD,) when I found that the (Mr. R.) abandoning all these, has found it in the plan of separating entirely the supreme from the quo animo," as he expresses it, with which you circuit courts originated as early as the year sev-give your vote: erecting in every man's mind a enteen hundred and ninety, and was then recom-tribunal before which to test the constitutionality mended to Congress by the then Attorney Gen- of measures. The doctrine is-believe that you eral, (Mr. RANDOLPH,) as appears by his report, do not violate the Constitution, and it is not vioread yesterday by the gentleman from South Car-lated! This last position, whatever its merits, has olina, (Mr. HUGER;) when, as that gentleman has not novelty to recommend it. "Asaman thinketh, truly observed, the document before us contains so is he," has been taken for the basis of many false only the business done by the judges of the su- speculations before this time. Instead of finding preme and district courts in the circuit courts, this plain language in any one part of the Constiand not the business of their own particular courts tution, ought not the various grounds which have also; when I reflect on the appellate jurisdiction been taken by the friends of the bill, to teach genof the Supreme Court, and the extreme absurdity tlemen to distrust the soundness of the doctrine of subjecting, in another place, the determina- which they wish to support? Shall I be told, in tions of the same men to the revision of them-answer to this, that those who oppose the bill selves, might I not rationally indulge the hope have taken grounds as various in their opposition that gentlemen would have been satisfied, that the to it? No, sir, we uniformly ground our arguJudicial establishment, as it now exists, does fur-ments on two plain and unequivocal sentences in the nish to the citizens a much fairer chance for the Constitution: "The judges both of the superior attainment of justice than the old one? and that and inferior courts shall hold their offices during they would have permitted the Constitutional good behaviour; and shall receive for their serquestion to have slept for the present? But, sir, vices a compensation, which shall not be diminishwe are compelled to consider whether the bill on ed during their continuance in office." Those who your table can pass without a violation of the Con- oppose, are indeed obliged to follow those who stitution. Before other considerations are attended support the bill, in their devious course; and find to, I hope I may be permitted to present to the arguments to answer the constructions, by which Committee one argument, derived from the pro- these words, which are truly plain and intelligible, gress of the bill itself. A gentleman from Mas- are attempted to be done away. But having been sachusetts, (Mr. BACON,) told us some days past, apprized by the gentleman from Virginia, that the that, on this subject, the Constitution speaks a great Constitutional question to be decided is, plain and intelligible language. Let me inquire whether the Judiciary is a co-ordinate or suborwhere gentlemen have found this plain and intel- dinate branch of our Government; and whether ligible language. One gentleman, taking for it is competent for the courts to decide upon the granted the position to be proved, and reasoning constitutionality of laws; and this bill having ab inconvenienti, has found it in the evil conse- been brought forward at a period, which gentlequences, resulting from establishing a different men are pleased to call fortunate for that purpose, doctrine:-"an army of unimpeachable judges, I hope I shall be excused for requesting the attenwith salaries, and without offices." tion of the Committee for a few moments to this Another has found it, in a distinction between question. One gentleman, from Virginia, (Mr. supreme and inferior courts, derived from the RANDOLPH) having said he was not disposed to words "may" and "shall." Another, in the words, contend about the terms co-ordinate and subordi"from time to time." Another, in that clause nate, I am willing to substitute others. Is the Juof the Constitution, which authorizes Congress to diciary a distinct and independent branch of the establish tribunals inferior to the Supreme Courts Government, ordained and established by the Consupplying the word abolish, omitted by the Constitution as such? In examining this question, I vention which framed the instrument. Another, may be permitted to inquire, whether it is compein a discovery, that misbehaviour is no crime in tent for the judges to pronounce on the constitua judge, for which he can be impeached; and there- tionality of your laws. One gentleman from Virfore the Legislature must, ex necessitate rei, pos-ginia (Mr. GILES) seemed disposed to waive this sess the power of removing judges from office.

Another has found the language in "the will of the people," not literally expressed in their written Constitution, but in their elections, in a change of rulers; believing, I presume, that the vor populi is vox dei, and that human, must yield to divine laws and constitutions.

:

inquiry, probably in consequence of the sentiments of a different kind, avowed by his friend from Massachusetts, (Mr. BACON,) yet it deserves to be considered; and that gentleman could not suffer it to pass in silence, but charged the claim of such power to the judges as one of their crimes.

Although proving this, does not, I admit, prove

H. OF R.

Judiciary System.

FEBRUARY, 1802.

Judge, speaking of an act of the Legislature of Pennsylvania, upon the constitutionality of which he was then deciding, says:

Before I lay aside this case, I will take the liberty to read the remarks of the same Judge, respecting the tribunals of justice:

that the judges of our courts are, by the Constitution, rendered independent of the Legislative power; yet it furnishes a strong reason for giving to that instrument, if it will bear it, such a con"If this be the legislation of a Republican Governstruction as will make them so. Judges depend-ment, in which the preservation of private property is ent on the Legislature for their continuance in made secure by the Constitution, I ask, wherein it dif office, for the continuance of their offices, or for a fers from the mandate of an Asiatic Prince? Omnicontinuance of their salary, cannot be expected to potence in legislation is despotism. According to this decide against the wishes of those on whom they doctrine, we have nothing we can call our own, or are depend. Gentlemen ask, where we find in the sure of for a moment; we are all tenants at will, and Constitution a power given to the judges to de- hold our property at the mere pleasure of the Legisla cide against the constitutionality of laws? I anture. Wretched situation, precarious tenure! And swer, in the sixth article, these words: "This yet we boast of property and its security, of laws, of 'Constitution and the laws of the United States, courts, of constitutions, and call ourselves free!" 'which shall be made in pursuance thereof, and 'all treaties made, or which shall be made. under the authority of the United States, shall be the supreme law of the land." The judges are not only sworn to support the Constitution, but their oath of office binds them to judge "agreeably to the Constitution and the laws." The expression, CC supreme law of the land," imports inferior and subordinate laws. What are those laws, unless acts of Congress? The expression respecting laws made pursuant to the Constitution, necessa rily implies that laws may be made which will not be pursuant to that instrument. Such are not the supreme law of the land. They are not law. Shall not the judges when called upon to decide if, in their opinion, a bill should be passed by Congress against the Constitution which assumes the form of a law, declare it, I will not say null and void, if gentleman dislike those terms, but to be no law?-not being made pursuant to the power delegated to Congress by the Constitution. In the case of Vanhorne vs. Dorrance, decided in the circuit court for the district of Pennsylvania, reported in Dallas's Reports, Judge Patterson is made to say:

tected, and governed by general, known, and establish"The rights of private property are regulated, proed laws, and decided upon by general, known, and established tribunals-laws and tribunals not made and created on an instant exigency, or an urgent emergency, to serve a present term or the interest of a moment. Their operation and influence are equal and universal; they press alike on all. Hence security and safety, tranquillity and peace. One man is not afraid of another, and no man afraid of the Legislature."

In another case, reported in the same book, Judge Iredell, speaking of Congress, says:

[ocr errors]

Upon this authority, there is, that I know, but one limit, that is, that they shall not exceed their authority. If they do, I have no hesitation to say that an act to that effect would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law, paramount to all others, which we are not only bound to consult, but sworn to observe."

In the case of Bull and wife against Calder and wife, as well as in several other cases, the same "What is a Constitution? It is the form of Gov-doctrine is maintained by the Judges of the Suernment delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke, must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution; they derive their power from the Constitution; it is their commission; and therefore all their acts must be conformable to it, or else they will be void. The Constitution is the work and will of the people themselves in their original, sovereign, and unlimited capacity. The one is the work of the creator and the other of the creature. The Constitution fixes limits to the exercise of Legislative authority, and prescribes the orbit within which it must move. In short, the Constitution is the sun of the political system around which all Legislative, Executive, and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt that every act of the Legislature repugnant to the Constitution is absolutely

preme Court. And, sir, it is to this doctrine that we owe our liberty-which consists in security to our persons, our property, and reputation. And will the gentleman from Virginia impute the maintaining of this doctrine to the judges as a crime? Is this the question to be decided? Are we to show our control over the courts, to repeal this law, and put the judges down? Let it be remembered that, in these decisions, the judges were not "claiming powers," as the gentleman from Virginia has been pleased to express it, but solemnly deciding between citizen and citizen, the rights of private property. And let us arrogate to ourselves as much wisdom as we please, who, let me ask, are most competent to decide correctly important questions arising under the Constitution, our judges or our legislators? Legislatures will, in violent times, enact laws manifestly unjust, oppressive, and unconstitutional; and that, too, under the specious pretext of relieving the burdens of the people. Such laws, it is the business of the judges, elevated above the influence of party, to control. Let me mention an instance: Previous to the adoption of this Constitution, and during the time of the paper-money system of the In another part of the same case, the same State of Rhode Island, an act was passed by the

void."

[blocks in formation]

Legislature of that State, subjecting to a penalty any person who should refuse that money, then in a very depreciated state, for articles offered for sale in the market; and a new and summary mode of prosecution and trial was provided. The money was offered to a butcher in the market for his meat; it was refused. An action was brought to recover the penalty, and I now see in his place an honorable member of this House, then a judge of the supreme court of that State, who concurred with the rest of the judges of that court in declaring the law to be unconstitutional and void.

H. of R.

partial, that the judge should know that, let him decide as he will, provided he acts honestly, he shall not be deprived of his office, nor suffer a diminution of his salary.

long as the office continues. Let me ask gentlemen, if, upon their construction, that you may abolish the office, this end is really attained? In what consists the independence of a judge? It consists in having his mind elevated above the fear of any evil consequence resulting to him from rendering upright and impartial judgments; in his being so situated as not to have his mind wrought upon, directly or indirectly, by any other considerations than those arising from the justice of the causes which he is about to decide. Considering the infirmities of human nature, the The consequence was, that the judges were framers of the Constitution supposed it necessary, summoned to appear immediately before the Le-in order to secure an administration entirely imgislature to answer for their conduct, and it was with the greatest difficulty that the Legislature were prevented from dismissing them instantly from office. I mention this to show, that such has been, and such will be, the conduct of Legis- Here, let me ask, what difference in effect there lative bodies. Such ought always to be the con- can be upon the mind of a judge, while in the duct of judges, and this can with certainty be administration of justice, to know that, in conseeffected in no other way than by rendering them quence of the decision which he is about to make, independent of the Legislature, subject only to his office will be taken from him, or he taken removal by impeachment. But, sir, I beg leave from his office? Will not the effect be precisely again to recur to the amendments which were the same in one case as the other? In either case proposed by certain States to the Constitution, at the office and the judge are separated from each the time of its adoption, to show what was the other. Upon the construction given to this part sense of those States, at that time, on the import- of the Constitution by the friends to the bill, the ance of the independence of the Judiciary to the judge is not to be turned out of office, nor his salliberties of the people of this country. In the ary diminished, lest his independence should be declaration of rights proposed by the Convention impaired; and yet he is to cease to exercise judiof the State of Virginia, I find the fifth article is cial functions, and to cease to receive any salary in these words, "that the Legislative, Executive, if he decides against the wishes of the Legislaand Judiciary powers of Government, should be ture-and still be independent! If the Constituseparate and distinct, and that the members of the tion meant to secure the independence of the two first may be restrained from oppression by judges, while in office, let gentlemen apply to it feeling, and participating in, the public burdens, one rule of construction of instruments of writing; 'they should, at fixed periods, be reduced to a pri- so construe "ut res magis valeat quam pereat." vate station, return into the mass of the people, And, then, let them ask themselves, if, upon their and the vacancies be supplied by certain and construction, the end which they acknowledge the 'regular elections." Then, sir, the doctrine of Constitution had in view is attained? But if the the responsibility of the judges to the will of the gentleman from Virginia (Mr. GILES) can avoid people, did not prevail in Virginia. It was not the first part of the sentence, "the judges shall then thought necessary that the judges should hold," &c., by considering hold, as implying tenreturn to the mass of the people, to restrain them ure under the President, and not operating as a from oppression. The Convention of the State limitation upon Legislative power; how does he of North Carolina recommended a bill of rights avoid the second: "They shall at stated times reas an amendment to the Constitution, containing ceive for their services a compensation which precisely the same words; and to render the judges shall not be diminished," &c.? I am sensible it as independent as possible, the convention of each has been attempted, by saying that compensation of those States recommended also an amendment, is given for services rendered, and if you deprive that the salaries of the judges should neither be the judges of the power of rendering services, by increased nor diminished during their continuance abolishing their offices, the compensation ceases in office. Who, then, can say that a limitation of of course. But, I apprehend, you cannot entirely the Legislative power was not intended by those dispense with his services. If you abolish the who adopted the Constitution? and, sir, it was in-court in which he ordinarily administers justice, tended by those who framed the Constitution. he may still grant commissions of bankruptcy, Gentlemen admit that the words in the first sec-issue judicial writs, and perform various other tion, article third, of the Constitution, "The services. To my mind the plain language of the 'judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their service a compensation, which shall not be diminished during their continuance in office," were designed to secure the independence of the judges while in the exercise of their official duties, as

Constitution is this: Congress may "from time to time," as the exigencies of the country, arising from its increasing population, growing commerce, or other causes, shall require, ordain and estab lish such inferior courts as may be deemed necessary. In the exercise of this power, the Constitution supposes that a sound discretion will govern

[blocks in formation]

that there will be no abuse of it. That, as the country shall advance in population and wealth, its situation may be such as to require more inferior courts, but never less. That when courts are once established, you may, if you please, alter, modify, change, or transfer jurisdiction from one court to another. But whatever is done upon this subject, must always be done with a sacred regard to the inviolability of the judges already in office: and if you wish entirely to change the organization of the courts, it can only be done when the offices of the judges are vacant, or with reference to the happening of that event. You cannot totally divest a judge of all judicial authority or diminish his salary, and thereby compel him to resign his office; nor deprive him both of office and salary. Upon any other construction, the provisions of the Constitution intended to secure the independence of the judges, are not only inefficient, but absurd. The word hold, itself, upon which the gentleman from Virginia has predicated his argument, supports this construction. It implies an inseparable connexion between the person holding and the thing held, which can no more be dissolved in one way than in another. All means looking to that end are alike forbidden.

A gentleman from Massachusetts (Mr. BACON) has defined a court to be an institution for the administration of justice; and said that he could' no more conceive of a court without a judge than of a Legislature without legislators.

[ocr errors]

6

FEBRUARY, 1802.

judge, without any jurisdiction, following a salary; this does not follow. As I have before remarked, a judge may exercise many judicial functions without a court to sit in; and I have also remarked, that the power to erect new tribunals from time to time, was always to be exercised with sound discretion. The Constitution does not go on the ground that it will be abused; that new courts will unnecessarily be erected; that power is no otherwise limited than by enjoining upon the Legislature, to do all which is done on this subject with an eye to the independence of judges already in office. To aid us, sir, in our construction of the Constitution of the United States, I beg leave to turn the attention of the Committee for a few moments to some of the State constitutions. I believe we shall not only find, in many of them, the principle of the independence of the Judiciary admitted; but, in some of them, expressly, the doctrine for which I now contend. Some of the State constitutions existed in their present form anterior to the adoption of the Constitution of the United States; some have been since amended. In the bill of rights prefixed to the constitution of New Hampshire, are these words: "It is, therefore, not only the best policy, but for the security of the rights of the people, that the judges should hold their offices, so long as they behave well." In the constitution of that State, under the head of the Judiciary power, are these expressions: "The General Court are hereby empowered to make alterations in the power and jurisdiction of the courts of common pleas, and general sessions of the peace, respectively; or if they shall judge it necessary for the public good to abolish those courts," &c. Previous to the Mr. GODDARD proceeded. I am not able to re-adoption of this constitution, which was but a collect the force of the gentleman's argument, revision of a former one, there existed in that unless he meant to say that the abolition of a State a Supreme Court, the judges of which, as court necessarily put down a judge. The gentle- well as those of the inferior courts, held their man quoted the twenty-seventh section of the act offices during good behaviour. of last session, which abolished circuit courts, as The people of that State supposed it necessary a precedent in point to justify the repeal of that expressly to delegate to the Legislature the power law. But the abolition of a court does not neces- of abolishing inferior courts, the judges of which sarily imply that a judge is put out of office, or hold their offices during good behaviour, and for the office itself discontinued. Congress, by law, that purpose, among others, amended their conerect courts, give names to those courts, and cre- stitution. And, sir, delegating to the Legislature ate offices; but this same justice cannot be ad- the power of abolishing inferior courts, clearly imministered in them until afterwards, by an act of plies that the power of abolishing the Supreme the President, judges are appointed. The circuit Court was withheld. Can, then, the Legislature courts, as organized before the act of last session of New Hampshire repeal the law organizing the were holden by judges of the Supreme Court, Supreme Court of that State? Clearly not. In assisted by district judges. Abolishing circuit the bill of rights, as well as in the constitution of courts did not affect the judges of the Supreme Massachusetts, the independence of judicial offiCourt, or the district judges; each remained in- cers is provided for, and in the article which redependent judges, holding their proper offices. Alates to the Executive power, I find these expresname of the institution is nothing, and I very sions: "as the public good requires that the Govmuch question, whether the name of the Supreme ernor should not be under undue influence of Court may not be changed. The Constitution, it' any of the members of the General Court, by a is true, has said that there shall be one Supreme dependence on them for his support," &c.; then Court. It implies that there shall be one court, follows a provision for an honorable salary to be supreme or superior to all others-but may it not provided for him, also for the judges of the Sube called by what name you please? But it has preme Court. I read this for the purpose of been said, upon the same principle that you can showing that, if the public good requires that the withdraw from a court a part of its jurisdiction, Governor should be elevated above an undue inyou may withdraw the whole, and leave a naked | fluence of the members of the General Court, it

[Mr. BACON explained. He said he was not responsible for the definition, he took it from the gentleman from Pennsylvania, (Mr. HEMPHILL.) He did not say "without judges, but without offices."]

[ocr errors]
[ocr errors]
« AnteriorContinuar »