much more requires that the judges should be above that influence. But, sir, I will not detain the Committee by adverting to all the State constitutions, in which the independence of the Judiciary department is established; I will only notice the expressions in that of New Jersey: "The judges of the Supreme Court shall continue in office for seven years." An act of the Legislature of that State would be necessary to organize that court. Can a subsequent Legislature repeal that act before the expiration of seven years? Can a judge be said to continue in office after the office is abolished? I presume not. The Constitution is imperative-he shall continue in office. Here the word hold, implying tenure, is not used, and yet the principle is precisely the same as that adopted in the Constitution of the United States. The difference consists only in the time for which the office is held. In New Jersey, the time is definite; in the Constitution of the United States, indefinite, until the happening of an event-the misbehaviour of the judges. In many of the State constitutions, provision is made for the removal of the judges upon the joint application of both branches of the Legislature, to the Executive. Having these constitutions and the statute of 12th and 13th William, which introduced that provision in England, before them, the framers of our Constitution chose to discard it, and provide for the removal of judges only on impeachment of the House of Representatives before the Senate, and a judgment of that body, in which two-thirds must concur. Gentlemen admit that, in England, the independence of the judges has ever been the pride and boast of that country. That it has tended to the preservation of the liberties of the people. But, they say, upon our construction of the Constitntion of the United States, judges will be more independent than they are in England. Suppose it is admitted; what follows? Nothing, but that the liberties of the people of this country are better secured than in that. From the nature and principles of the British Government, there is no danger of the judges being removed but for misbehaviour. One branch of the Legislature of that country being hereditary, the other elective, if the judges decide uprightly, but against the wishes of the popular branch, the other branch will not probably concur in a vote to remove them. If they decide uprightly, but against the wishes of the hereditary branch, the other will not probably concur in such a vote, and they can be removed only upon the joint address of both branches. Our Goverument being more free, and wholly elective, a mode that gives greater independence to the judges than that is adopted. No joint vote of both branches of the Legislature can, in no way, remove a judge or separate him and his office. A vote of the House of Representatives may impeach; a vote of the Senate, two-thirds concurring, may remove. Several gentlemen, in discussing this subject, have gone very far from the question before us, in bringing into view matter foreign from the merits of the question. shall not attempt to follow them. But, sir, suffer me for a moment to notice one charge which is I 6 H. OF R. brought against the judges: They have attempted, say gentlemen, to introduce the common law into this country, and this gentlemen seem to consider as a crime. I had, indeed, believed that the people of this country esteemed the common law as their privilege. In the seventh article of the amendments which have been adapted to the Constitution, it is expressly recognised, "in all suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." The people of the State of Maryland esteemed it so important, as to introduce a provision respecting it, into their bill of rights, the third article of which declares, "that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law." But, sir, I will not pursue this subject. Gentlemen have told us that they are honest-that they have the good of their country at heart; that elections in this country are always to be confided in; that the people will, by their votes, cure all the evils which may be introduced. Let the motives and views of gentlemen be ever so pure, I cannot but shudder at a principle, which is calculated to prostrate at the feet of one department of the Government, another department co-ordinate with itself-independent of it; and unless gentlemen can prove to me that there is something more than human in the American character, I cannot cease to fear the evils which will result from this measure. Ought not gentlemen, at the moment of the triumph of one party over another, to distrust themselves? The human mind is often influenced by motives which it does not acknowledge, even to itself. Hazael, when told that he would set fire to the strong holds of Israel, and commit other abominable crimes, exclaimed, "But what,! Is thy servant a dog, that he should do this great, thing?" But he went away and did the very things which he thus spurned at. I do not believe that gentlemen wish to introduce into this country the horrid scenes which have lately passed in review before us in France. But they are too recent and too horrible to be soon forgotten. Too horrible, indeed, to be mentioned. Let gentlemen ask themselves if this measure does not look the same way? There was a time when the Brisotines in France were thought honest, virtuous, and patriotic. They claimed from the people unlimited powers; confiding in them, unlimited powers were granted. Let gentlemen call to mind the time when, in that country, Legislative, Executive, and Judicial powers were exercised by the same persons; let them remember the scenes, too dreadful to be repeated, which flowed from the concentration of all the powers of Government in one branch. And let them ask themselves if we have no reason to tremble at the consequences which may result from the introduction of the same principle, by the passage of the bill on your table? Mr. RUTLEDGE.-I have kept my seat, Mr. Chairman, until this late stage of the debate, under a hope that the arguments of gentlemen who advocated the passing of this bill would convince me it is not unconstitutional; but, after having listened most attentively to them for many days, I find the deep impression made upon my mind that it attacks the very vitals of our Constitution, has been fortified and extended instead of being dismissed. It is not necessary, sir, for me to call to your recollection what was the situation of America anterior to the formation of the present Government. Our State Governments had proved to be mere ropes of sand. Experience had shown the Confederation to be miserably defective in all its parts. Those evil times, when anarchy and jealousy distracted our State Governments, and clashing interests threatened to break our Federal Union, called all America to action. The people of this nation summoned their wisest and best men to meet in Convention, to form a Constitution which should promote the lasting welfare of our country, and secure the liberties their valor and wisdom had won. The difficulty of the task was fully equal to its importance. FEBRUARY, 1802. This is my settled opinion; but on a subject so 6 In reviewing the histories of other Republics, the Convention saw that, like the splendid shows of a magic lantern, they had appeared and disappeared in almost the same moment of time: as had been observed by a celebrated writer, they rose like a rocket and fell like the stick. Although their existence had every where been transient, yet it had been protracted wherever the institutions of the country had excited any kind of veneration for its judicature. At Athens in particular, and indeed throughout Greece, the liberties of the people were for a season preserved by the respect felt towards the august Court of Areopagus. Notwithstanding the aspiring ambition of some of the States, the intrigues of powerful demagogues, and the general degeneracy of manners, yet, as Jong as this venerable judicature was respected, Greece continued free. As soon as it lost its influence the people lost their liberties. Taught, by these examples, the value of a good judiciary, the patriots who met at Philadelphia determined to establish one which should be independent of the Executive and Legislature, and possess the power of deciding rightfully and finally on con- "Good behaviour for the continuance in office of flicting claims between them. The Convention the judicial magistracy, is the most valuable of the laid their hand upon this invaluable and protect-modern improvements in the practice of Government. ing principle; in it they discovered what was essential to the security and duration of free States; what would prove the shield and palladium of our liberties; and they boldly said, notwithstanding the discouragement in other countries in past times, to efforts in favor of republicanism, our ex. periment shall not miscarry, for we will establish an independent Judiciary; we will create an asylum to secure the Government and protect the people in all the revolutions of opinion, and struggles of ambition and faction. They did establish an independent Judiciary. There is nothing. I think, more demonstrable than that the Convention meant the Judiciary to be a co-ordinate, and not a subordinate branch of the Government. 6 In a Republic it is a barrier to the encroachments and oppressions of the representative body. And it is the best expedient that can be devised in any Government to 'secure a steady, upright, and impartial administration of the laws. The Judiciary, in a Government where 'the departments of power are separate from each other, 'from the nature of its functions, will always be the 'least dangerous to the political rights of the Consti tution. It has no influence over the sword or the 6 purse, and may truly be said to have neither force nor will, but merely judgment. The complete independence of the courts of justice is essential in a limited Constitution; one containing specified exceptions to the legislative authority; such as that it shall pass no 'ex post facto law, no bill of attainder, &c. Such limitations can be preserved in practice no other way than through the courts of justice, whose duty it must be to declare all acts manifestly contrary to the Constitution, void. Without this, all the reservations of particular 'rights or privileges of the States or the people would amount to nothing. Where the will of the Legislature declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the courts designed to be an intermediate body between the peo'ple and the Legislature, are to keep the latter within the limits assigned to their authority. The Conven⚫tion acted wisely in establishing good behaviour as the tenure of judicial offices. This plan would have been inexcusably defective had it wanted this important 'feature of good government." H. of R. blessing that any country can enjoy. The judges are to defend the Constitution." Mr. Madison, in answer, says: "I wished to insert a restraint on the augmentation, as well as diminution, of the compensation of the judges, increase. If there was no power to increase their but I was overruled; the business of the courts must pay, according to the increase of business, during the life of the judges, it might happen, that there would be such an accumulation of business as would reduce the pay to a most trivial consideration.” The authority I have read proves to demonstration, what was the intention of the Convention on this subject; that it was to establish a Judiciary completely independent of the Executive and Legislature, and to have judges removable only by impeachment. This was not only the intention of the General Convention, but of the State conventions, when they adopted this Constitution. Nay, sir, had they not considered the judicial power to be co-ordinate with the other two great departments of Government, they never would have adopted the Constitution. I feel myself justified in making this declaration by the debates in the different State conventions. From those of the Virginia convention, I will read some extracts, to show what were there the opinions of the speakers of both political parties. The friends of the Constitution insisted that our federal judges would be independent of everything but their behaviour and "The judges will be independent, and no power can their God. The opposers of the Constitution in- remove them: they will be beyond the reach of the other sisted that they would not be perfectly independ-powers of the Government; they will be unassailable, ent of the Legislature, because they might increase their salaries. Most affectionately attached to the sovereign rights of the States and the people, the opposers of the Constitution displayed all the suspicion of jealous lovers. They supposed the judges would not be completely independent, and insisted if they were not, there would soon be a concentration of all powers in the Legislature, and a perfect despotism in our country. Hence it appears, that both parties thought the judges ought to be beyond the reach of the Legislature, except by impeachment. The friends of the Constitution insisted they were so; the opposers feared they were not. Let us attend to the debates in the convention of Virginia. Here we find Mr. Madison not using the words good behaviour, but says, "what we say was meant for good behaviour," during the life of the judges. The opinions of Mr. Madison I deem conclusive, as to the meaning of the words good behaviour; but I will read what was said by Mr. Nicholas, which is substantially the same. [Here Mr. R. read several extracts from the debates in the Virginia convention. Those quotations show that, in Virginia at least, the public wish and intention was to have an independent Judiciary.] Let us now see what was the opinion on this subject of the first Congress under the Constitution, when the first Judiciary bill was debated. Mr. Stone "The establishment of the courts is immusays: table." Mr. Madison says: "The judges are to be removed only on impeachment, and conviction before Congress." Mr. Gerry, who had been a member of the General Convention, expresses himself in this strong and unequivocal manner: General Marshall, the present Chief Justice, says: "Can the Government of the United States go beyond those delegated powers? If they were to make a law, not warranted by any of the powers enumerated, it would be considered as an infringement of the Constitution, which they are to guard: they would not consider such a law as coming under their jurisdiction; they would declare it void." Mr. Grayson, who opposed the Constitution, we find saying: "The judges will not be independent, because their salaries may be augmented. This is left open. What if you give six hundred pounds or one thousand pounds annually to a judge! It is but a trifling object, when, by that little money, you purchase the most invaluable 7th CoN.-24 and cannot be affected but by the united voice of America, and that only by a change of Government." Here it is evident, Mr. Gerry supposed a project, like the present, could only be effected by the people, through the medium of a convention; he did not suppose it possible for Congress ever to grasp at this power. The same opinions were held by Mr. Lawrence and Mr. Smith. [Here Mr. R. read further extracts from the Congressional Debates.] In addition to those high authorities, permit me, Mr. Chairman, to read some parts of the lectures on the Judiciary of the United States, of the celebrated Judge Tucker, the present Professor of Law at the University of William and Mary, in Virginia. [Here Mr. R. read from Tucker's Lectures.] I wish gentlemen, who compare the official tenure of our judges with those of Great Britain, to attend to the wide distinction between their independence, as shown by the learned judge and professor, whose lectures I have cited; he shows that the judges in England have only a legal independence; while in America, they enjoy Constitutional independence. The advocates of this bill say, the people could not have meant to establish an independent Judiciary, because a permanent body of men, beyond all control, would prove hostile to the liberties of the people. Sir, we do not contend for any such establishment; we do not wish for a Judiciary permanent and beyond control. No, sir, all we insist upon is, that the judges are liable to that sort of control only which the Constitution establishes; that good behaviour" is the tenure by which they hold their office, and that they cannot be removed from it but by impeachment. That the Judicial authority was never designed to depend upon the Executive and Legislative powers, but, in some sort, to balance them. That our federal judicature was meant to give to the Government a security to its justice against its power; it was contrived to be, as it were, something exterior to the State. The honorable gentleman from Vermont, (Mr. SMITH,) who preceded me, says, our construction of the Constitution is derived from implication. This is not the case, sir; we require no ingenuity, no sophistry, no metaphysical distinctions to bear us out in our construction. We resort to the plain meaning of the words of the Constitution. Knowing the Constitution would contain the seeds of its dissolution, should it contain articles liable to ambiguity, the Convention cautiously avoided obscurities; they selected as plain words as any in our language, to represent their intention of having an independent Judiciary; they used words that are intelligible to almost every capacity. Let us read them. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour." These are the words of the Constitution; and what words, sir, could have been found more express, more unequivocal in their meaning? Let us suppose, that, instead of being the Legislature, and instead of having the Constitution before us upon trial, and (as is the case I fear) being about to sign its death warrant, we were a convention, called by the people, to form a constitution; that we had determined to establish an independent Judiciary; to have judges removable only by impeachment; that, having decided this principle, it was referred to a committee to draught a clause conformably to the idea of having the Judiciary entirely independent of Executive and Legislative power; and that this service was assigned to the honorable gentleman from Virginia, (Mr. GILES;) could his ingenuity, could his knowledge of our language, furnish words to represent the intention of having an independent Judiciary, more appropriate, more unequivocal, more familiar, than the words used by the Convention, and which I have just read? They are explicit, simple, unqualified, and, at the same time, imperative. The understanding of the Convention, of the States, and of the people at large, was, that our Judiciary should be independent. They deemed this Constitutional check essential to the duration of the Government; and until the fourth day of last March, I believe the Judiciary was considered as sacred. The State Governments, and the people, and the friends of our Federal Union, reverenced it as the fortress and ark of their safety. While this shield remains, it will be difficult to dissolve the ties which knit and bind the States together. As long as this buckler remains to the people, they cannot be liable to much or permanent oppression. The Government may be administered with indiscretion and with violence; offices may be bestowed exclusively upon those who FEBRUARY, 1802. have no other merit than that of carrying votes at elections; the commerce of our country may be depressed by nonsensical theories, and public credit may suffer from bad intentions; but, so long as we may have an independent Judiciary, the great interests of the people will be safe. Neither the President nor the Legislature can violate their Constitution l rights. Any such attempt would be checked by the judges, who are designed by the Constitution to keep the different branches of the Government within the spheres of their respective orbits, and say, thus far you shall legislate, and no farther. Leave to the people an independ ent Judiciary, and they will prove that man is capable of governing himself; they will be saved from what has been the fate of all other Republies, and they will disprove the position that Governments of a Republican form cannot endure. I did hope, from the promises made by the honorable gentleman from Virginia, (Mr. GILES,) on a former occasion, when we attempted to postpone this bill, that he would have given it an unimpassioned consideration. If it were possible for him to dismiss party feelings, and argue any question upon its real merits, it was to be hoped he would have given a cool and deliberate consideration to this all important subject, and argued it upon the ground of Constitutionality. But, unmindful of his promise not to consider this a party question, the gentleman prefaced his observations with saying, he designed to make them personal. His preliminary remarks were highly afflictive to myself and friends. We deprecated this course. but the gentleman's crimination must be deemed a justification of the recrimination which he has rendered necessary. This is a painful task, and if gentlemen should feel themselves or their friends wounded by any of our observations, they must recollect the situation in which they have placed us, and that the necessity of defending ourselves has been imposed upon us by their attacks. In a speech which occupied two hours, ten minutes only of that time were given to a consideration of the constitutionality of this measure, and then the gentleman found it convenient to employ the rest of it in fulminating his anathemas against the past Administrations, and reiterating those invectives and censures which on all past occasions he has indulged himself in bestowing upon those who are no longer in power. Whether attacks are to be continued upon the past Administrations to divert the public eye from the present Administration, or whether they are calculated to raise a smoke, under the cover of which gentlemen may march unobserved to attack the vitals of our Constitution, is best known to themselves. The gentleman from Virginia has rendered homage to the Judiciary of Great Britain; acknowledges much of the prosperity of that nation to be produced by the independence of their judges; says ours are at least as independent, but that the doctrine of making them completely independent, is a monstrous one. Sir, there is no kind of analogy between the Governments of America and Great FEBRUARY, 1802. Judiciary System. H. OF R. Britain, and none between the situation of the courts has been left to Congress, but the instrujudges in that and in this country. The people of ment under which we act has established the JuEngland gained much, and an abundant source of diciary, and has also assigned its duties. A charge oppression dried up, when they got their judges has been made against us by the honorable genmade independent of the Monarch, whose crea- tleman, which I must deny; I plead not guilty to tures they had been, and whose arbitrary meas-it, and say he is wholly mistaken. He has charged ures they had been obliged to support. But, sir, us with having changed with the times, and it was impossible to make the judges a check with having formerly advocated the extension of upon Parliament, for nothing in that Government the powers of this House. Sir, this is not the case, is independent of Parliament. In this country tempora mutantur sed non mutamur in illis. things are far different; we have a written Con- Knowing how strongly disposed in Governments stitution; the people have given certain powers to like ours the popular branch always is to grasp at the Executive, other defined powers to Congress, illegitimate powers, we have in times past strugand delegated other powers to the Judiciary. But gled hard for preserving to all the branches of the the gentleman from Virginia wishes to make Con- Government the powers delegated to them regress as powerful as the Parliament of Great Bri- spectively by the Constitution. We have ever tain; he wants the Legislature in America to be been watchful of Executive and Judicial rights, (like the Parliament in England) without con- and defended them from the encroachments attrol; he wants to destroy that check which the tempted by the Legislature. The gentleman people in their Constitution formed for us; he from Virginia must permit me to call to his memwants to prostrate that protecting principle which ory the course of conduct we pursued on a very was never before known in a Republican Govern- memorable occasion, when he and his friends ment, and for want of which all Republics have wished this House to arrogate Executive powers. perished. In England the independence of the I refer to the proceedings on a motion made by Judiciary, as far as it goes, I highly appreciate; the honorable gentleman then his colleague, who but I venerate the independence of our judges (as is not now a member of this House, (Mr. Nichodesigned by the people when they adopted the las,) in the debate on the foreign intercourse bill. Constitution) because it is complete; in England Mr. Nicholas said: it is not. There they have a legal independence; "I believe all governments like ours tend to produce here a Constitutional one. Although the indea union and consolidation of all its parts in the Execupendence of the judges in England is partial, yet tive department, and the limitations of each other will it has been productive of vast good; although they be destroyed by Executive influence, unless there is a may be said to be in some measure still dependent constant operation on the part of the Legislature to on the Monarch, inasmuch as pensions and places resist this overwhelming power. A representative are in his gift, yet it is well known the independ-Government may be made the most oppressive, and yet ence they do possess of the Crown prevents rea-preserve all its Constitutional forms, and the Legislasons of State from entering the courts, and that ture shall appear to act upon its own discretion while the royal will sinks into nothing and disappears at that discretion shall have ceased. the seat of justice when opposed by the law. Government the Executive has an influence over the From many proofs of this fact, I beg leave to se- Legislature, the Executive is capable of carrying its lect the case of Mr. Wilkes, at the time of his secviews into effect in a manner superior to what can be ond election, and when he had been outlawed: done in a despotic monarchy. Mischiefs will be carried although the whole power of the Crown was further, because the people will be inclined to submit most actively employed to crush this obnoxious to a Government of its own choosing. Monarchs cansubject, yet Lord Mansfield, and the whole bench not carry their oppression so far without resistance as of judges, declared the outlawry contrary to the Republics. Suppose Executive patronage had extendprinciples of common law, and reversed it as be-ed its influence into the Legislature, and that in coning illegal. Permit me to read this case. [Here Mr. R. read an account of the proceedings, and the whole of Lord Mansfield's celebrated speech.] The Judiciary on this occasion we see checking arbitrary Executive measures, because they were independent of the Executive. Where under our sequence of a thirst for office majorities were formed in both branches of the Legislature devoted to the views of the Executive; where would be a check to objects hostile to the public good? In what branch of the Government would you look for it? Was it the Senate? Will you look to this House? The majorities are humble expectants of office. Where then will In America the Judicial power was designed as you find anything capable of controlling the overbeara Constitutional check upon both the Executive ing influence of the Executive? It must be in small and Legislature; but gentlemen on the other side, and feeble minorities, who, by their opposition, and atdeprecating all control, are for prostrating the tention to the interests of the people against arbitrary check imposed by the people on their Representa-power, may rouse the people to a sense of their danger, tives, and the destruction of which will make them and force the public sentiment to be respected; this, he omnipotent. The gentleman from Virginia says conceived, would be the only check." the Judicial power was not formed by the Consti- It hence appears, that those gentlemen have tution. I shall not be surprised by any declara- availed themselves of every occasion to extend tion he may make about the meaning of the Con- the powers of Congress, and had their attempts been stitution after this. Sir, the Judicial power is es- successful, we should ere this have had a consoltablished by the Constitution equally with the Ex-idated Government; a kind of Government which ecutive and Legislature. The organization of the the people of this country never wished to estab |