the whole American people. You might talk of this Union as a blessing, after the Constitutional security, which renders it precious, should be utterly destroyed. But there might then be many who will feel that the empty sound, although retained, is such a blessing as but afflicts them with the recollection of their ruined hopes. Mr. DANA closed his remarks against the bill at twenty minutes past nine o'clock. When Mr. BAYARD moved the rising of the Committee. Motion lost-yeas 32, nays 58. H. OF R. the judge. I did expect the ability and ingenuity of gentlemen, particularly some who have the advantage of being frosted by experience, would have given stronger reasons for discontinuing a system which was considered so requisite as to induce the most intelligent characters who sat on the floor of the last Congress to organize and mature, but in this I am disappointed. Sir, the exclamation of the day is retrench, retrench! In my soul would I unite in this system of retrenchment, did I conceive it for the benefit Mr. PLATER. I did hope, sir, from the proceed- of society; but when I see gentlemen determined ings of Saturday, that gentlemen who are advo- to explode from office a certain set of men who cates for this bill would have manifested a simi- are personally obnoxious to them, and thereby lar spirit of accommodation at this late hour of pull down and destroy a law before it is tried, it the night in granting us further time to express is impossible, under these circumstances, I can our sentiments. It is now ten hours since I have concur in this system of retrenchment. Permit been in the possession of my seat, and I would me the liberty of asking if twelve months are sufput it to the candor of gentlemen, if the fatigue ficient to test the utility of this law? No, sir, of the day does not incapacitate them from fully they are not; neither any law whatever-the budiscussing a subject of such magnitude. I con-siness of a court is not complete in extent in this fess I feel myself unable to do that justice to the limitation of time; but as commerce flourishes, question which an earlier hour would have af- population increases, and the transactions of men forded, I shall, therefore, forbear a reference to become more general and extensive, so are obthe variety of notes I have been at the trouble of jects for the jurisdiction of a court promoted and taking, and only state a few of the principles augmented. How can it be expected we shall (without illustration) which will influence my have characters valuable for integrity, legal inforvote, and then resign myself to the consequences mation and respectability, to fill the Judiciary, resulting from the adoption of the bill. I cannot, when we destroy the very inducements to their however, avoid expressing my surprise that an acceptance-I mean the tenure of office? Is it to honorable member from North Carolina (Mr. HoL- be presumed that men who are in the habit of acLAND) should say everything which has been de- quiring a plentiful support by their profession will livered in favor of striking out the first section of relinquish that for an appointment liable, on acthe bill is declamation, and nothing can shake count of its uncertainty and instability, to termihis opinion. I very much fear, such is the tem- nate at a succeeding session of Congress? No, per of mind of most gentlemen on his side of the sir, your courts will be filled by needy adventurCommittee, if an angel was to descend from ers seeking a support for the object of peculation, heaven with a view of conviction, the attempt men of small talents, perfectly inadequate to gather would be vain. I believe, if we recur to the Pres- the fruits produced by superior abilities. When ident's Message, we shall discover he suggests a I look into the Constitution and read, "the judges consideration of this subject, grounded on a state- both of the superior and inferior courts shall hold ment of the number of causes instituted and de- their offices during good behaviour," these last cided since the establishment of these courts. words so clearly show the intention of making Notwithstanding the document showing this state- the judges independent of others for continuance ment is admitted by all gentlemen who have in office, that every construction tending to pervert spoken on each side of this question to be inaccu- this meaning must assail and radically destroy rate and fallacious, yet I will myself give it the the fundamental principles of the Constitution. authority they wish, and it will demonstrate that There is no proposition more generally admitted there is a sufficiency of business to justify the and agreed to, and I can say with truth on which continuance of these courts in the circuits of Penn- the judgment of the people of this country is sylvania and Virginia. Is it then reasonable or more completely made up than that of the inderight to deny the inhabitants therein law, justice, pendence of the judges; it is esteemed essential and protection, for the reason the same quantum to the security of life, liberty, property, and repuof business does not exist in the eastern and south- tation, and this the Constitution has wisely guardern circuits? This would be measuring justice with ed by its express provisions. If it is considered a partial and sparing hand indeed. Sir, the pau- an office held during good behaviour is removacity of suits in these courts is the strongest evi- ble by the Legislature, you make good behaviour dence to my mind that injuries, wrongs, and op- and legislative will of the same meaning and sypressions have been prevented by the speedy and nonymous terms; this is so contrary to the comfaithful manner in which justice has been admin- mon acceptation of these words among us, and istered, or the legal remedy in the old system was the contradiction apparently so great, that I really O great as induced suitors to give the State courts have not heard one gentleman unfold and explain a preference to the Federal; consequently, its ab- it; but they tell us we must resort to the jurispruclition, for the purpose of a change to the former dence of England for the definition of it. establishment, must be productive of great delay it be possible gentlemen are satisfied the men who of justice, great inconvenience and hardship to compose the Parliament of Great Britain should เ Can 935 H. OF R. Judiciary System. be the expounders of a Constitution made by the 936 MARCH, 1802. the great fatigue which every member present must have experienced from the close attention which has been paid to the subject; and especially from a regard to any gentleman who might wish to offer his sentiments on the occasion. Since I am disappointed in this wish, notwithstanding the extreme bad state of the air within these walls, the very late hour of the night, [ten o'clock,] or my own lassitude and fatigue from these circumstances combined. I must beg the indulgence of this honorable Committee, while I submit a few remarks for their consideration. The subject now under examination having been so ably and so minutely discussed by gentlemen of different political sentiments on the floor of this House, I had almost determined to signify my opinion by a silent vote, but when I reflect on the solemnity and importance of the present question. involving in my view, the dearest interests of society, I cannot excuse myself to my immediate constituents, to my country at large, or to my own conscience, without briefly stating the reasons which will influence my mind in the vote I am about to give. In doing this I will not trespass long on the patience of the Committee, which from the length of the discussion must be nearly exhausted; and especially when I reflect that the system to which the bill on your table immediately refers. is most probably devoted to destruction. The first question naturally presented for consideration is, whether the law now under discussion, can be constitutionally passed by this House? And secondly, if it be lawful, whether such a measure would be expedient at this time? crimination. I fear, sir, they have already been too freely indulged, in the course of this debate, to be useful to this Committee, or beneficial to our constituents. It would, however, be improper to pass over the whole unnoticed and unrefuted. Sir, it is a principle universally acknowledged that no man shall be a judge in his own cause; once you transfer the judicial power to courts under the influence and control of a Legislature you frustrate the impartial administration of justice. I consider the Judicial department as the protector of the Constitution; it stands between the peoBefore I proceed to make a single remark on the ple and the Legislature to check the abuse of a trust committed to them; it is a particular province merits of the present question, I take the liberty to to determine the constitutionality of all laws-assure this honorable Committee, that I shall not the case may arise wherein it will become the follow some gentlemen in their wild excursions duty of the Judiciary to decide between the Le-after objects of extreme irritation and mutual regislature and the President. Should the judges be dependent on either, great apprehensions might exist; they would lean to that side on which their dependency existed. And should the Legislature and Executive unite to invade this Constitution, Very early in the debate, an honorable member we should be left without a tribunal to give an impartial and disinterested decision. Thus, sir, from Virginia (Mr. GILES) introduced by way of you are dispensing with the only check to the preliminary remarks a prospectus of the foregoing oppression of an uncontrolled and unlimited power. Administrations. As if delighted with those subAnd thus this fair and beautiful fabric, so much jects, which, in their nature are calculated to exadmired, by being deprived of its greatest orna-cite popular odium, he has with much industry sement and best support, in consequence of this night's decision, before to-morrow's sun fulfils his usual course, will, I fear, vanish from your view. Mr. FOSTER moved, that the Committee should rise. The motion was supported by Mr. GODDARD, and opposed by Mr. DAWSON. For rising-yeas 33, nays 57. Mr. TALLMADGE.-Mr. Chairman: Before this honorable Committee had, by their vote, decided the question a second time that they would not rise, I had fostered the hope that from compassion to the Chairman, (who has been confined to the chair more than ten hours.) they would have consented to postpone the further consideration of the question under debate, until to-morrow. I was encouraged in this belief from a consideration of lected those which would be most likely to make a deep and lasting impression on the public mind. We have been told, sir, that the creation of a public debt, which in court language has been called a public blessing, that the origin and establishment of the funding system, with all its attendent evils; the assumption of the State debt, &c., took early root and flourished under the fostering hand of the illustrious WASHINGTON. With equal candor and similar good intentions has the odious system of internal taxation and excise been called in to his aid; the formation of banks, moneyed capitals and loans, with exorbitan interest, have been also held up to view; and what is more astonishing than all, the former Adminis trations have been accused of wantonly provoking MARCH, 1802. Judiciary System. H. of R. the judges both of the Supreme and inferior courts shall hold their office during good behaviour." In this clause, the tenure or condition on which the judges hold their offices is expressly pointed out. "And shall at stated times receive for their services a compensation which shall not be dimin this clause express provision is made for the salaries of your judges, which cannot be diminished, but may be increased. In searching after truth, it is always deemed prudent and wise to make use of such terms to convey ideas as are most familiar and obvious; and in deciding on the meaning of words, not above ordinary comprehension, it will never be deemed unsafe to give them that construction which they usually convey in the common occurrences of life. an Algerine war, three thousand miles from our country, and an Indian war on our frontiers, for the purpose of extending Executive influence, by the creation of an army and a navy. Not contented with the imposition of burdens almost too grievous to be borne, they are held up to public view as inviting the barbarians of Algiers and the savages of the wilderness to indiscriminate pillage,ished during their continuance in office." By torture, and death. To finish the picture, we have been kindly informed that when the authors and abettors of these national evils were about to be hurled from their power, the late Judiciary establishment (now about to be immolated) was formed as a sanctuary, or city of refuge, into which a few might escape to avoid the impending storm. These and similar remarks have been offered to the consideration of the Committee, during the discussion which has taken place; and to my astonishment and deep regret, the name of the illustrious WASHINGTON has been drawn in, if possible to tarnish his unrivalled glory, and to grace the triumphs of those who have but recently been advanced to power. On what other ground is it possible to account for this wanton introduction of characters and principles into the present debate? Without attempting a reply to any one of those charges (all of which I think capable of the most complete refutation, and which have been particularly noticed by the honorable gentleman from Delaware) I cannot but express my astonishment that any such remarks should have been offered to the consideration of this Committee. For, in the first place, they could have no possible relation to the question under debate; and secondly, the great sensibility which was thereby excited, has been but too apparent to all who have attended to the subsequent debates. It was impossible to suppose that such bold and unfounded attacks would not be repelled with asperity and warmth. I shall, therefore dismiss the whole, with a most sincere desire that no occasion may again occur which shall induce gentlemen to wander so widely from the path of strict propriety and duty. It has been well remarked by some who advocate the passage of this law, that if they supposed the Constitution would thereby be infringed, no consideration whatever, either of inconvenience or expense, which may be supposed to grow out of the present system. would justify so dangerous an experiment. To this point, therefore, it becomes proper that we particularly, though briefly, attend. In the first section under the third article of the Constitution of the United States, it is thus written: "The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." Here appears to be a provision, exhibiting a positive injunction on the Legislature to form, and an assurance to the people of the United States that they should have a Judiciary establishment, to consist of one Supreme Court and other inferior courts, the number and titles of which should depend solely on the discretion of the Legislature. In the same article it is further ordered "that As the very essence of the question now under debate depends materially, if not solely, on the true import of the terms made use of in the article recited, "during good behaviour," it must be of primary importance that their meaning be well understood. In forming the three great branches of our Government, the Legislative, the Executive, and the Judicial, the Constitution has very wisely prescribed to each the manner of its election or appointment; the powers they shall severally exercise and enjoy, and the duration of their services, or their continuance in office. The members composing the House of Representatives are elected to serve for two years, the Senate for six years, and the President and Vice President for four years, after which they all return to the mass of citizens from whence they were taken. But when the courts are ordained, their continuance in office is expressly declared to depend solely on the contingency of their good behaviour. By what construction of language, I beg leave to ask. Mr. Chairman, is it found that the exercise of their functions, thus particularly marked out, can be construed to depend on Legislative will? Surely, sir, there must be something mysterious and unintelligible in these words, during good behaviour," which in common life are vastly easy and familiar, if they can possibly be construed to mean during the pleasure of the Legislature. I think I have endeavored, in the integrity of my heart, to discover the true intent and meaning of that article or clause in the Constitution which ordains and establishes the Judiciary system, and I am constrained to acknowledge that I can hardly conceive of words more emphatical or more explicit than those which are made use of. Let me invite the attention of the honorable Committee to the following plain proposition, and, aside from the question now under discussion, let each member decide for himself what would be the fair and honest construction of the contrast. A landlord offers to his tenant the occupancy of a farm, or any other privilege, which, for the consideration of his service, he conveys over to him to hold and enjoy during good behaviour. In process of time, and confessedly with out any complaint of malconduct on the part of the tenant, the landlord turns him off, and deprives him of his living. What verdict would this Committee render if such a cause was now under trial? Or, in other words, may I not venture confidently to declare, that every honorable member on the floor of this House would advocate the cause of the tenant against his landlord, as the cause of innocence and justice against violence and oppression? I humbly trust I may. The same remarks will hold equally good when applied to a privilege or benefit granted, or covenanted to be bestowed on an individual, or on persons in their collective capacity. If this inference is correct, on what principles of justice or equity can the Legislature of the United States assume to itself the right of violating a contract, the outlines and leading features of which are expressly laid down in the Constitution? When a court is constituted by a Legislative act, the proposition made, or the inducement held out to the candidate, through the Constitutional organ, is the honor of an appointment as a judge, and the salary which by law is attached to the office. The Constitutional obligation on the Government is, that it shall not deprive you of your office during good behaviour. When the appointment is thus constitutionally made, and the judge shall have accepted of the same, the contract is ratified and becomes complete in all its parts. The Legislature having thus fulfilled their duty by obeying the injunctions of the Constitution, has nothing farther to do in the business. The court thus constituted becomes a constituent or co-ordinate, not a subordinate branch of the Government, subject only to Constitutional control. Thus it appears demonstrably clear that the Constitution founds the tenure of office solely on the contingency of good behaviour; the Legislature affixes the salary to the office, and the judge cannot be deprived either of office or salary but in the mode expressly pointed out in the Constitution. Is not this the plain interpretation of the Constitution? Is not this a construction which may very emphatically be termed legal, political, and moral, accommodated to the understandings of all men, even of the most ordinary capacities? But, sir, if gentlemen are determined on having the judges of your courts subject to removal, on other grounds than by impeachment, why is this power to be vested in the Legislature? Those who advocate the right which the President so freely exercises, of making removals, and thereby causing vacancies to happen at pleasure, would probably be more consistent if they would allow him the power of removing the judges also. If it should be objected that the Constitution gives to him no such power, I answer, that the Constitution gives no express power to the President to make any other removals. In the one case, the Constitution is silent with respect to removals from office, while in the other (viz: in the case of the judges) the tenure of office is expressly mentioned, and the negative may be fairly implied. Our Constitution guaranties us a Government of checks and balances, so organized that the sev MARCH, 1802. eral branches of it have a necessary dependence on each other. No legislative act, however useful or desirable it may appear, can be performed by one branch of the Government without the consent and accordance of the others, constituted for this purpose. Hence is derived to our constituents a degree of safety and prudence of immense value; and every day's experience demonstrates to us the benefits and blessings of these mutual checks. There is a responsibility attached to the Executive, very different from that which belongs to the Legislative branches of your Government; for while the latter are responsible only to the people, by whom they are appointed to office, the former is amenable for all his official conduct, immediately to the two branches of your Legislature, by one of whom he may be impeached and by the other removed, if found guilty, and absolutely disqualified from holding any office under the Government. If therefore the power of removal, now contended for, is about to be assumed, I ask gentlemen, whether, on the principles of our Government, the power would not be more safely lodged in the hands of the President than with the Legislature? Not that I would for a moment consent that this power can be constitutionally exercised by either; but if the independence of the Judiciary must be prostrated, I submit to the consideration of those who advocate the passage of the law which annihilates the late Judiciary system, whether the exercise of a power, which I conceive to be fraught with so much danger, would not be more safely lodged in the hands of the Executive. If the doctrine of independency is taken away from the Judiciary. is there no danger that the Legislative power may be degraded to gratify the most vile and malignant passions? Surely, Mr. Chairman, there must be some radical evil, some very powerful difficulty, which needs the strong arm of the Legislature to correct and remove. This physical strength, I know, may accomplish the end, but in my view of the Constitution, it cannot sanction the wrong; it may indeed inflict the wound, of which I very much fear this magna charta of our independence will linger and die. The very circumstance of strength, or power, which the Legislature possesses, affords cause for apprehension, that when the barriers of your Judiciary are thus thrown down, it may at any time be wantonly assailed by superior force. The Judiciary being a co-ordinate branch of the Government, with the Legislative and Executive, is a wholesome check upon their proceedings, and in this way may very justly be considered the guardian of the people's liberties. These three legitimate branches of the Government when united, may defy any attack; but the Judiciary from its very nature, being the most feeble, if unprotected by the others cannot long endure. Whenever a predominant faction shall exist (and factions may always be looked for under free and popular Governments) and your Judiciary shall interpose to arrest its progress towards any unconstitutional end, how unsafe and precarious must be our situation! It is therefore not only forbid den to assail her walls by any form of attack, but the contrary duty is forcibly impressed, to nourish and cherish this helpmate of the Constitution, as every noble and honest heart would the fair partner of his domestic bliss. In executing this duty, the Legislature perform one of the implied functions of their appointment, and a very important duty attached to their office. If this doctrine is correct, then it will undeniably follow, that every attempt to prostrate the dignity and independence of the Judiciary system, is an attack upon an important constituent branch of your Government, and ought to be resisted. Encroachments by the Legislature are perhaps the most dangerous, because the least suspected and accompanied by the most power. Having thus briefly explained the unsophisticated meaning of the words in the Constitution, by which the Judiciary system is established, I shall forbear to make any remarks on the construction which some of the States may have given to the same expressions in their State Constitutions. Nor will I detain the Committee at this late hour of the night, to draw the parallel between the Judiciary establishment of Great Britain and that of the United States, in point of independency and inviolability. Had I time, I might quote copious extracts, from high authority, in point; I mean from the writings of the President of the United States. In his Notes on Virginia, he appears to have handled this subject with great perspicuity and precision, placing the independence of the judges on high ground. For the present I must content myself by referring gentlemen to that treatise, and particularly to that part of it which proposes a constitution for the State of Virginia. Indeed these points, with others which might be noticed, have been accurately explained and enforced by gentlemen who have preceded me in their remarks. In determining the true meaning of the Constitution of the United States, it must be vastly important to know what were the arguments of the leading members of the Convention, when that memorable instrument was framed. Had I time, and was not the patience of the Committee nearly exhausted by the very lengthy discussion which has taken place, I would read many extracts from the debates of some of the most prominent speakers on that occasion. By these, we might with great accuracy test the opinion of the General Convention on almost every article of the Constitution. My honorable friend from South Carolina (Mr. RUTLEDGE) has favored us with some of those sketches, with great correctness, which must be in the recollection of this honorable Committee. One very important fact I shall not feel justified to omit. A motion was made in the General Convention, when the article respecting the Judiciary establishment was under consideration, to authorize the President of the United States to remove a judge from office, on the joint application of both Houses of Congress. This motion, after being thoroughly debated and maturely considered, was negatived. Sir, I am happy in being able to lay before this Committee such high authority; H. OF R. and in remarking that the enlightened framers of our Constitution, viewing the independence of the Judiciary of such vast importance, rejected the propositions as dangerous to the liberties of a free and independent people. What strong and irrefragable evidence does this, afford, Mr. Chairman, that the principle which I contend for is correct, and that the ground on which we wish to place this important branch of our Government is the same which it occupied when the Constitution was framed? Should any gentleman wish further information on this head, give me leave to refer him to the original documents in the office of the Department of State. A further proof in favor of our position is derived from the reception which it met with in the State conventions. When the Constitution was sent to the several States for adoption, every article and clause of it underwent a severe scrutiny and a most critical examination. Perhaps no article was more minutely examined than that which respects the Judiciary establishment, and from what I then heard and have since been informed, I am induced to believe that the Constitution would not have been adopted, if the independence of your judges had not been deemed to be secured by that instrument. In most of the States, where the debates were preserved, it appears that this particular clause was discussed in direct reference to the independence of the judges, or the tenure by which they hold their offices. In Virginia, the doctrine which we contend for, has always been strenuously and honorably maintained. It is objected to the doctrine that I contend for, that if the Legislature cannot annul the courts when once organized agreeably to the Constitution, they are paramount to the Legislature themselves. A very slight attention to this subject, I am persuaded, will prove this reasoning very incorrect. Legislative provision is necessary to bring into office the President of the United States. Yet the Legislature, as such, cannot remove him. Does it hence follow that he is paramount to the Legislature? It is also remarked by those who advocate the passage of the law on your table, that the power which creates of necessity possesses the right and ability to destroy. The same Legislative power necessary to call a court into being, is also necessary to lay a tax, or pass any other law. I beg leave here, also, to take a difference in the two cases. The Judiciary is a constituent part or branch of the Government, by an express provision in the Constitution, and the Legislature only pursues the Constitutional will, as its organ, by giving to it existence and form; but its inherent powers are all expressly derived from the Constitution, which, I trust, will not be claimed to belong to any other law. The absurdity of this objection will further appear if the Constitutional mode of organizing the Government is but slightly examined. When the census of the United States is laid before Congress, a law must be passed apportioning to each State its number of Representatives. This law is again brought under the Legislative direction of the several States be |