Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 2 (of 16)

by United States. Congress

Thursday, February 18.

A message was received from the President of the United States, transmitting a letter from the Secretary of War on the subject of certain lands in the neighborhood of our military posts, on which it might be expedient for the Legislature to make some provisions. A letter was also received from the Governor of Indiana, on the same subject. The said Message and letter were read, and ordered to lie on the table.

The Judiciary Bill.

The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act to repeal certain acts respecting the organization of the Courts of the United States and for other purposes."

Mr. Stanley.—Mr. Chairman, every measure which is brought under the consideration of a Legislature must first be tested by its expediency. Unhappily, in the present instance, another question arises—its constitutionality. I will endeavor, concisely, to examine the subject on both those points. And, first, as to the expediency of the measure. In order to form a correct estimate between the present Judiciary system of the courts of the United States and that for which it was substituted, it is proper to take a comparative view of both.

Under the former system, there were six judges of the Supreme Court of the United States, who held two sessions of the Supreme Court in each year, at the seat of Government. Those judges also held in each State a circuit court, two terms in each year, in which the judge of the district was associated with the circuit judge. The organization of the district courts having jurisdiction, principally, of matters affecting the revenue and admiralty causes, not being connected with the present question, need not be examined. From the errors of this system resulted, first, a delay of justice. The judges bound to hold courts in succession at remote parts of the continent, were continually travelling; from the variety of accidents to which travellers are subjected in this country, from the condition of roads and overflowing of rivers, it frequently happened that the judges failed in their attempts to get to the courts, or arrived so late that little business was done. Suitors, jurors, and witnesses, were subjected to the trouble and expense of attending courts without the accomplishment of their business; hence resulted a delay of justice. In the State to which I belong, during the few years existence of the former system, this was the case frequently.

Another great evil resulting from that system was, its tendency to lessen the character and respectability of the Federal bench. Those best acquainted with the profession of the law will most readily admit, that even a life of patient study is unequal to the complete attainment of principles and rules; and that much labor and industry are necessary to preserve that which is gained. Consequently, that extent of legal knowledge, correctness of judgment, and respectability of character, which should designate the persons qualified for this important trust were seldom to be found, but in men far advanced in years. Men possessing these qualifications, not inured to labor, are seldom equal to the fatigue of their duty; or, if at the time of appointment, fast approaching to the infirmities of age, were not to be expected to relinquish the enjoyments of private life for an office, which, however honorable, subjected them to the fatigue of a day laborer. The office, with its incumbrances, was, as it were, offered to the lowest bidder. And men best qualified to honor the bench, were driven from it. True it is, men have been found eminently uniting virtue and talents, who have accepted the office under all its distressing circumstances, but we owe this rather to their patriotism than to the advantages of the situation. Let it also be remembered that, in some instances, gentlemen who would have adorned the seat of justice of any country, were compelled to relinquish their seats; and in others, refused to accept the appointment.

Another error of that system was, that the judges of the Supreme Court, the court in the last resort, before whom the errors of the inferior circuit courts were to be corrected, were the same men who presided in those circuit courts. With great deference for the opinions of gentlemen who prefer that system, I pronounce my opinion, that its errors were radical; that those who justly estimated the importance to our interest and national character, of a speedy and correct administration of justice, ought to have desired a change. The present system has happily obviated these errors. The States are divided into six circuits; in each State is appointed one judge, called a circuit judge; the judges of the States, composing one circuit, ride together into the States of their circuit, and together hold the court. The much smaller distance which those judges have to travel than the circuit judges, under the former system, secure their due attendance; a portion of their time is left them to study and reflection, and the same persons presiding at successive terms, a uniformity of decision is preserved. The six former judges hold the Supreme Court, with original constitutional jurisdiction in matters of the utmost national importance, and appellate jurisdiction, in certain cases, where the sum in dispute is two thousand dollars; they are also the court in which the errors of the circuit court are examined and corrected.

It is objected against the act proposed to be repealed, that a dangerous patronage is created by it for the President. I shall pass over what I consider an inconsistency in this objection coming from gentlemen who profess that implicit confidence is due to the man chosen by the people, who, in his appointments, speaks not less the voice of the people than the voice of God, and examine the weight of the objection. If this apprehended patronage means the power of appointing the Judiciary, that power is given by the constitution, and is the same, whether the power of the Judiciary be vested in six or in sixteen judges. If it fear an undue control over the people in favor of the Executive, through the Judiciary, make the judges as independent as we contend they are and ought to be, and they are placed beyond the necessity of descending to the practice of improper means to preserve Executive favor.

We have been told, sir, that it is necessary the judges should ride into the States to gain a knowledge of the laws by which, in many cases, they are to decide. Until this occasion I have never heard that the laws of a country could only be acquired in the atmosphere of that country where they are in force. Nine-tenths of the decisions in our State courts and Federal courts turn on questions of common law; yet, has it ever been suggested that an American judge was incompetent to decide on common law questions, because he had not studied in England? No, sir, the knowledge in both cases may be acquired in the closet. To these observations permit me to add, that the remonstrances from the bar of Philadelphia, composed of gentlemen no less celebrated for the respectability of their private than of their professional character, who, on this occasion, so interesting to the welfare of their country, have sacrificed their political prejudices, strongly expressing their decided preference of the present system to the former, is, to my mind, conclusive, that it ought to be preferred. I am, therefore, of opinion, that it is inexpedient to pass the present repealing bill; and so long as my opinion is supported by the respectable authority I have just alluded to, and opposed only by the objections which I have noticed, I shall feel satisfied that opinion is correct.

In approaching the second question which I proposed to examine—the constitutionality of the measure—whether I reflect on the magnitude of the question on the one hand, or my inability on the other, I am, indeed, humbled before the undertaking.

Without examining whether Government, according to the modern opinion, should be founded on the reason and sense of justice of man, it is certain our Government is calculated to guard against his weakness and his wickedness. Our Government has been particularly cautious on this subject; it has left nothing to the hazard of reason or sense of justice; it has carefully delegated powers to three distinct departments, and separated these departments by boundaries plainly marked and formed, each so as not to control, at least to check, the other. The Legislative powers, though vested in men chosen frequently and by the people themselves in one branch, and by the immediate agents of the people in the other, are nevertheless the object of suspicion and caution. Their powers, far from resting on their discretion or sense of expediency, are expressly and cautiously limited. The Executive conditional veto forms one check on the Legislature; the Judiciary, I shall contend, are a check on both. Here, permit me to say, that from the spirit and the words of our constitution, I infer that the Judiciary are a co-ordinate department with the Executive and Legislative. The framers of our constitution, satisfied that the powers of well-organized Governments ought to be divided into three branches—Legislative, Executive, and Judicial—have nowhere expressly declared there shall be such departments, but, after premising the objects of the Government, proceed to ordain how the Legislature shall be composed; and article two, section two, declares, "The power shall be vested in a President of the United States of America; he shall hold his office during the term of four years," and prescribes the mode of election. Article three, section one, also declares, "The Judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish," and the judges of the supreme and inferior courts shall hold, &c., during good behavior. By comparing these sections of the constitution, it appears the Judiciary and the Executive are expressly created by the constitution, and nothing is left to the discretion of Congress, as to the existence of these departments; they are created by the same words; and if the Legislature claim a right to put down the Judiciary at pleasure, before the happening of that event till which the constitution secures their offices—their misbehavior—they may as well assume the right to remove the President before the happening of that event till which his office is secured, to wit, the expiration of four years. I shall attempt to establish as a first principle, that the Judiciary are a check on the Legislature, and thence to show first, that, by the spirit of our constitution, the Judiciary ought to be independent, beyond the control or influence of either of the other departments of power; and secondly, that, by the words of the constitution, they are so secured.

First, then, that the Judiciary are a check on the Legislature. In the constitution, we find certain powers delegated to Congress; we also find they are prohibited from exercising certain powers; among which are, they shall pass no ex post facto law, no bill of attainder, no law respecting religion, &c. Should, unhappily, a Legislature be found who, from weakness or wickedness, or the union of both, should transgress the bounds prescribed, what is the security of the citizen? After all the experience derived from the example of other Governments, after all the deliberation and wisdom of our sages who framed the constitution, are we left, in this important instance, as under the despotism of a monarch, to seek redress through the throes and convulsions of a revolution? No, sir. The Judiciary are our security. The Legislature may enact penalties, and denounce punishments against those who do not yield obedience to their unconstitutional acts; their penalties cannot be exacted, nor punishments inflicted, without the judgment of a court. The judges are to expound the law, and that fundamental, paramount law, the constitution. To this purpose they are sworn to support the constitution. While the Judiciary firmly, independently, and uprightly, discharge their duty and declare the act of the Legislature contrary to the constitution, to be void, the Legislature are checked, and the citizen shielded from oppression and persecution. But, ask gentlemen, whence do the courts derive this power, and the honorable gentleman from Virginia (Mr. Thompson) says, we are contending for this common law doctrine, that the courts are a check on the Legislature. If I misunderstood the gentleman, I trust he will correct me. Sir, that gentleman, I am willing to presume, knows, what I assure him no gentleman with whom on this occasion I act, is ignorant of, that this is not a common law doctrine; that in England their courts have no check on the Legislature—their Parliament are emphatically styled omnipotent, and if they violate the few natural rights that remain to the citizens, they have no remedy but in a resort to revolutionary principles; it was the want of this check to the oppressions of their rulers, which has produced civil wars, and driven one monarch from his kingdom, and sent another to the scaffold. This power exists in no other Government, because under no other Government does there exist a Legislature with limited powers; under our Government it is the very essence, the constitution of a court, the oath enjoined on them to support the constitution. The exercise and the admission of this right are not new in America; instances must be in the recollection of every gentleman. I will cite a few most prominent: The honorable member (Mr. Thompson) has been pleased to call the attention of the committee to the examples drawn from his State; I beg leave to profit from the same source. In 1787, the Legislature of that State passed an act making new arrangements in the jurisdiction of the courts. The judges, among whom was that venerable gentleman mentioned by the member from that State, whose merits and worth command the sincere homage of my respects, protested against this act, and refused to carry it into effect; the Legislature acquiesced, and the law was repealed.

Upon the imposition of the carriage tax by Congress, a citizen of Virginia refused to pay the tax, on the ground that it was unconstitutionally laid. He was sued for the penalty in the circuit court of that State, from whence, by writ of error, the suit came before the Supreme Court; in this case the defendant relied solely on the unconstitutionality of the act of Congress, and on this ground was defended by the attorney general of the State of Virginia, and the attorney general of the State of Pennsylvania. At this time, then, it appears that these learned gentlemen, the judges, and the citizens, thought the court competent to relieve in case the law was judged to be unconstitutional. In 1792, Congress passed an act imposing certain duties respecting invalid pensioners, upon the judges of the circuit court. The judges, at the first court after this act, protested against it; their protests were transmitted to the President of the United States—that President, who had presided in the General Convention which framed the constitution, and, therefore, as likely to understand the powers of Congress on the Judiciary as any other man, so far sanctioned their opinions as to transmit them to the next Congress, where the act was reconsidered and repealed. I beg leave, also, to allude to the authority before mentioned by my friend from Pennsylvania, (Mr. Hemphill,) which I should think of some weight here. It is the opinion of a gentleman, venerable for his age, respectable for legal knowledge, and distinguished for what, in the fashionable language of the day, are termed republican principles. I mean the Executive of Pennsylvania; that gentleman, in assigning to the Legislature of his State his reasons for not approving an act they had laid before him, after expressing his doubts of the constitutionality of the act, declares, "he cannot, from a confidence in the legal knowledge, integrity, and fortitude of his former brethren in the Supreme Court, risk his character in a judicial decision on this question, when he does not see any advantage to be derived to his country from a possibility of success." If any words can make more plain the opinion here conveyed, it is that he considers the judges have the power and will exercise it, to declare the act unconstitutional.

To my mind, these considerations are satisfactory, that, from the very constitution of our courts, from the practice and admission of our State courts and State Legislatures, and Federal courts, and Federal Legislature, that the judges of the United States, sitting in court, have the power, and by oath are bound to pronounce, that, an act contrary to the constitution, is void. From the establishment of this proposition, that the judges are the expounders of the constitution, and the laws made under it, and that they are thereby a check on the Legislature, I shall infer that, by the spirit of our constitution, they ought to be independent of the other branches of Government, but particularly so of the Legislature. The concentrating the branches of power either Executive and Legislative, or Legislative and Judiciary, in the same hands, is the very essence of tyranny; in proportion as we advance towards the union of those powers, in the same proportion do we recede from liberty. Are these departments separate, unconnected—if the Legislature by any means procure their will either directly or indirectly, to be substituted for or to overrule judicial judgment? Whether the Legislature expound and adjudge their acts themselves, or submit them to the exposition and judgment of a judiciary subservient to them, is essentially the same. If the Legislature exercise the power of removal from office by the direct means of a vote of removal, or by the indirect means, the legislative legerdemain of a repealing act, is precisely the same thing, the judges are no longer independent, but dependent on the Legislature for their offices, and subject to their control; a consequence entirely repugnant to the spirit of our constitution. I shall attempt to show, that by the words of our constitution, the judges are placed beyond Legislative control. Article three, section one: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." Until the contemplation of the present measure, I incline to believe, it never entered the mind of any man acquainted with this clause of the constitution, that judges should be removed otherwise than by impeachment for misdemeanor. The advocates for this Legislative power contend that the tenure of "good behavior" in this article of the constitution is intended to restrict Executive and not Legislative power. It does not appear probable that an express restriction should be introduced against a power which is nowhere expressly granted; for gentlemen know that the Executive power of removal from office is a power admitted from construction, and not founded on any thing drawn from the constitution. I say this rather, because, by the constitution, the aid of the Senate is necessary to appoint, and a fortiori should be necessary to remove. It is important to ascertain what was the intention of the framers of the constitution in introducing the words "good behavior." The most correct source in our power from which this aid may be derived, is the writings and opinions at that day of those who aided in the great work. Among those publications which were written for the purpose of explaining and recommending this constitution, the most celebrated are those pieces over the signature of "Publius," written by the pens of gentlemen of leading influence in the Convention, and whose talents and patriotism are still honored by the nation. In that part of this work which treats of the tenure of the office of judge during "good behavior," I find this strong expression:

"The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy, it is an excellent barrier to the despotism of the prince. In a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body."

This, sir, to my mind, is conclusive, that the convention intended this tenure as a restriction no less on Legislative than on Executive power, and that, in this sense of the phrase, the people of America received this part of the constitution. In ascertaining the import of the words "during good behavior," it is certainly important to inquire the end to which they have been used in other similar cases. My colleague (Mr. Henderson) has, with much abler talents, shown that, in most of the State constitutions, which existed before our Federal constitution, these words are used to fix the tenure of offices where the Executive have neither express nor constructive power of removal; consequently, they are in those constitutions restrictive of the Legislative power. If, then, the framers of our constitution borrowed this tenure from these State constitutions, it is fair and reasonable to conclude they used them in the sense in which they were previously received. But, says my colleague on the other side of the House, (Mr. Robert Williams,) the judges in England hold their offices by the tenure of "good behavior," and yet are removable on an address from both Houses of Parliament, and he infers that the terms may have been taken from England. To this I will first observe, that no fair argument can be drawn from the existence of this Legislative power there, for the exercise here. The mode of appointment there may render such control over the Executive necessary, which, from the provisions of our constitution, are not wanted here. In England, the King has the sole power of appointment—the people have no previous check. In this country, the Executive appointment is checked by the requisite sanction of the Senate. But is this Legislative power in Great Britain usurped by construction? No, if the gentleman will read again the statute of 13 William III., he will find that this power of removal is expressly granted by the Crown to Parliament. If, then, one convention had this statute before them, in adopting that part which relates to the tenure of office, and omitting that part which gives the power of removal, it is not to be presumed they intended so important a power should depend on construction. The same gentleman (Mr. Robert Williams) also contended that it could not be presumed the convention intended to restrict the power of the Representatives of the people, the friends of the people. What will the gentleman say of the correctness of his opinion, when I remind him that our powers are all expressly restricted; that the same article which fixes the tenure of "good behavior," expressly and undoubtedly guards against the power of the Representatives of the people, the friends of the people, by securing the salaries of the judges undiminished during their continuance in office.

Mr. Giles said that he felt some degree of apprehension, that, in the course he deemed it necessary to take in the discussion of this question, some observations might fall from him which might not be in strict harmony with the feelings of some gentlemen of the committee. He should regret, however, if a compliance with a sense of duty should produce that effect. He said, therefore, that he wished to apprise gentlemen that he intended to direct his observations as much as possible to the effects and tendencies of measures; and that when he was constrained to speak of the views of gentlemen, it would be with respect to what he conceived to be their opinions in relation to the general interests, and not to private gratifications. He said it was natural that men should differ in the choice of means to produce a given end, and more natural that they should differ in the choice of political means than any other; because the subject presented more complicated and variable objects, out of which to make a choice. Accordingly, a great portion of the human mind has been at all times directed towards monarchy, as the best form of government to enforce obedience and ensure the general happiness; whereas another portion of the human mind has given a preference to the republican form, as best calculated to produce the same end; and there is no reason for applying improper motives to individuals who should give a preference to either of the principles, provided in doing so they follow the honest dictates of their own judgments. It must be obvious to the most common observer, that, from the commencement of the Government of the United States, and perhaps before it, a difference of opinion existed among the citizens, having more or less reference to these two extreme fundamental points, and that it manifested itself in the modification or administration of the Government as soon as it was put in operation. On one side, it was contended, that in the organization of the constitution a due apportionment of authority had not been made among the several departments; that the Legislature was too powerful for the Executive Department; and to create and preserve a proper equipoise, it was necessary to infuse into the Executive Department, by legislation, all artificial powers compatible with the constitution, upon which the most diffusive construction was given; or, in other words, to place in Executive hands all the patronage it was possible to create, for the purpose of protecting the President against the full force of his constitutional responsibility to the people. On the other side, it was contended, that the doctrine of patronage was repugnant to the opinions and feelings of the people; that it was unnecessary, expensive, and oppressive, and that the highest energy the Government could possess, would flow from the confidence of the mass of the people, founded upon their own sense of their common interests. Hence, what is called party in the United States, grew up from a division of opinion respecting these two great characteristic principles. Patronage, or the creation of partial interest for the protection and support of Government, on the one side: on the other side, to effect the same end, a fair responsibility of all representatives to the people; an adherence to the general interests, and a reliance on the confidence of the people at large, resulting from a sense of their common interests. A variety of circumstances existed in the United States at the commencement of the Government, and a great number of favorable incidents continued afterwards to arise, which gave the patronage system the preponderancy, during the first three Presidential terms of election; notwithstanding it was evident, that the system was adopted and pursued in direct hostility to the feelings and opinions of a great portion of the American people. The Government was ushered into operation under a vast excitement of federal fervor, flowing from its recent triumph on the question of adopting the constitution. At that time a considerable debt was afloat in the United States, which had grown out of the Revolutionary war. This debt was of two kinds: the debt proper of the United States, or engagements made by the United States in their federal capacity; the other, the State debts or engagements entered into by the respective States for the support of the common cause.

The favorers of the patronage system readily availed themselves of these materials for erecting a moneyed interest; gave to it a stability, or qualified perpetuity, and calculated upon its certain support in all their measures of irresponsibility.

This was done not only by funding the debt proper of the United States, but by assuming the payment of the State debts, and funding them also; and it is believed, extending the assumption beyond the actual engagements of the States. Hence the Federal axiom, that a public debt is a public blessing. Shortly after this event, an Indian war sprang up—he would not say by what means—in consequence of which an army was added to the list of patronage. The Algerines commenced a predatory war upon the commerce of the United States, and thence a navy formed a new item of patronage. Taxes became necessary to meet the expenses of this system, and an arrangement of internal taxes, an excise, &c., still swelled the list of patronage. But the circumstance which most favored this system was, the breaking out of a tremendous and unprecedented war in those countries of Europe with which the United States had the most intimate relations. The feelings and sympathies of the people of the United States were so strongly attracted by the tremendous scenes existing there, that they considered their own internal concerns in a secondary point of view. After a variable conduct had been pursued by the United States in relation to these events, the depredations committed upon commerce, and the excitements produced thereby, enabled the Administration to indulge themselves in a more decisive course, and they at once pushed forward the people to the X, Y, Z, of their political alphabet, before they had well learned and understood the A, B, C, of the principles of the Administration.

Armies and navies were raised, and a variety of other schemes of expense were adopted, which placed the Administration in the embarrassing predicament, either to violate their faith with their public creditors, or to resort to new taxes. The latter alternative was preferred, accompanied with other strong coercive measures to enforce obedience. A land tax was laid for two millions of dollars. This measure awakened the people to a sense of their situation; and shook to the foundation all those federal ramparts which had been planned with so much ingenuity, and erected around the Executive with so much expense and labor. Another circumstance peculiarly favorable to the advocates of Executive patronage was, that during the two first Presidential terms, the Chief Executive Magistrate possessed a greater degree of popularity and the confidence of the people than ever was, or perhaps will ever be again attached to the person occupying that dignified station. The general disquietude which manifested itself in consequence of these enterprising measures, in the year 1800, induced the Federal party to apprehend that they had pushed their principles too far, and they began to entertain doubts of the result of the Presidential election, which was approaching. In this state of things, it was natural for them to look out for some department of the Government in which they could intrench themselves in the event of an unsuccessful issue in the election, and continue to support those favorite principles of irresponsibility which they could never consent to abandon.

The Judiciary Department, of course, presented itself as best fitted for their object, not only because it was already filled with men who had manifested the most indecorous zeal in favor of their principles, but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people, than either of the other departments. Accordingly, on the 11th of March, 1800, a bill for the more convenient organization of the courts of the United States, was presented to the House of Representatives. This bill appears to have had for its objects, first, the gradual demolition of the State courts, by increasing the number and extending the jurisdiction of the Federal courts. Second, to afford additional protection to the principles of the then existing Administration by creating a new corps of judges of concurring political opinions. This bill, however, was not passed into a law during that session of Congress, perhaps from an apprehension that it would tend to increase the disquietudes which other measures had before excited, and therefore operate unfavorably to the approaching Presidential election. At the next session, after the result of the late election was ascertained, the bill, after having undergone some considerable alterations, was passed into the law now under discussion. This law, it is now said, is inviolable and irrepealable. It is said, the independence of the judge will be thereby immolated. Yes, sir, this law is now considered as the sanctuary of the principles of the last Administration, and the tenures of the judges as the horns of inviolability within that sanctuary. He said, we are now called upon to rally round the constitution as the ark of our political safety. Gentlemen, discarding all generalizing expressions, and the spirit of the instrument, tie down all construction to the strict letter of the constitution. He said, it gave him great pleasure to meet gentlemen on this ground, and the more so, because he had long been in the habit of hearing very different language from the same gentlemen. He had long been in the habit of hearing the same gentlemen speak of the expressions of "the common defence and the general welfare," as the only valuable part of the constitution; that they were sufficient to obliterate all specifications and limitations of power. That the constitution was a mere nose of wax, yielding to every impression it received. That every "opening wedge" which was driven into it, was highly beneficial in severing asunder the limitations and restrictions of power. That the republicanism it secured, meant any thing or nothing. It gave him, therefore, great pleasure at this time to obey the injunctions of gentlemen in rallying round the constitution as the ark of our political safety, and of interpreting it in by the plain and obvious meaning and letter of the specified powers. But, he said, as if it was always the unfortunate destiny of these gentlemen to be upon extremes, they have now got round to the opposite extreme point of the political compass, and even beyond it. For, he said, they not only tie down all construction to the letter of the instrument, but they tell us that they see, and call upon us also to see written therein, in large capital characters, "the independence of judges;" which, to the extent they carry the meaning of the term, is neither to be found in the letter or spirit of that instrument, or in any other political establishment, he believed, under the sun. Mr. G. said he rejoiced that this subject was now to be discussed; he thought the crisis peculiarly auspicious for the discussion. He said the European world, with which the United States have the most relations, is now tranquillized. The tremendous scenes of blood and revolution which had agitated that portion of the globe, had at length subsided into profound peace; and had left mankind in silent amazement, to retrospect the wonderful events which were passed; and he hoped, with calm deliberation, to improve the lessons they had furnished for the benefit of mankind in time to come. The interests and sympathies, which the people of the United States felt in these events, no longer turn their attention from their internal concerns; arguments of the highest consideration for the safety of the constitution and the liberty of the citizens, no longer receive the short reply, French partisans! Jacobins! Disorganizers! And although the gentleman from North Carolina sees, or thinks he sees, the destructive spirit mount in the whirlwind and direct the storm, let him be consoled by the information, "that all these, our actors, are mere spirits, and are dissolved into thin air." Yes, sir, these magical delusions are now vanished, and have left the American people and their Congress, in their real persons, and original American characters, engaged in the transaction of American concerns.

He said he would now proceed to examine whether the repeal of the Judiciary law of the last session of Congress would in any respect violate that salutary and practicable independence of the judges which was secured to them by the constitution. He said the terms independence of Judges or of the Judiciary Department was not to be found in the constitution. It was therefore a mere inference from some of the specified powers. And he believed, in the meaning of gentlemen, and to the extent they carry it, that the term is not to be found either in the spirit, general character, or phraseology, of any article or section of the constitution. He meant to give the constitution the most candid interpretation in his power, according to the plain and obvious import of the English language. He should discard, in his interpretation, the terms "common defence and general welfare," which had been resorted to by some gentlemen. He considered these words as containing no grant of power whatever but merely the expression of the ends or objects to be effected by the grants of specified powers. He therefore protested against drawing any aid whatever from them in his construction of the instrument. He said he had read through the whole constitution, to enable him to form his opinion upon this question, for fear there might be in some hidden corner of it some provision which might demonstrate the unconstitutionality of the present bill; and if so, (although he should lament such a provision,) he would instantly give up the bill. But his researches had terminated in a different result. He said he found, from the general character of the constitution, that the general will was its basis, the general good its object, and the fundamental principle for effecting this object was the responsibility of all public agents, either mediately or immediately to the people. He said the context of the constitution would demonstrate the two first points, which he begged to read:

"We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Here we find the constitution founded upon the will of the people, and the object declared to be the good of the people. Through the whole body of the constitution may be discerned the responsibility of all public agents, either mediately or immediately, to the people. This responsibility results, first, from the division of authority into different departments; secondly, from a specification and limitation of the authorities of all and each of the departments; thirdly, from periodical appointments of the public agents. The first clause declares there shall be a Congress, to whom the business of legislation is confided. This Congress is to consist of a House of Representatives, to be chosen by the people immediately, and responsible to them at the end of every two years; and a Senate, to be chosen by the Legislatures of the different States, who are chosen by the people—one-third of the Senators to be chosen every two years, and responsible at the end of every six years. The Executive power is vested in a President, who is chosen by electors, who are chosen for the express purpose by the people, and responsible at the end of every four years. The President may be considered as immediately responsible to the people, although chosen through the medium of electors; because it is found, in practice, that the electors are constrained to avow the vote they intend to give before they are chosen, and the people have generally made their elections with a view to that object.

Thus, then, are formed two departments, their powers specified and defined, the times for extending their powers fixed, and indeed a complete organization for the execution of their respective powers, without the intervention of any law for that purpose. A third department, to wit, the Judiciary Department, is still wanting. Is that formed by the constitution? How is that to be formed? It is not formed by the constitution. It is only declared that there shall be such a department; and it is directed to be formed by the other two departments, who owe a responsibility to the people. Here there arises an important difference of opinion between the different sides of this House. It is contended on one side that the Judiciary Department is formed by the constitution itself. It is contended on the other side, that the constitution does no more than to declare that there shall be a Judiciary Department, and directs that it shall be formed by the other two departments, under certain modifications. Article third, section first, the constitution has these words: "The Judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish." Here, then, the power to ordain and establish inferior courts is given to Congress in the most unqualified terms, and also to ordain and establish "one Supreme Court." The only limitation upon the power of Congress in this clause, consists in the number of supreme courts to be established; the limitation is to the number of one, although that is an affirmative and not a negative expression. The number of judges, the assignation of duties, the fixing compensations, the fixing the times when, and places where, the courts shall exercise their functions, &c., are left to the entire discretion of Congress. The spirit, as well as the words of the constitution, are completely satisfied, provided one Supreme Court be established. Hence, when all these essential points in the organization and formation of courts are intrusted to the unlimited discretion of Congress, it cannot be said that the courts are formed by the constitution. For further restraints, therefore, upon the discretion of Congress, the remaining part of the same section must be consulted. Here he begged leave to remark, that he had often felt a veneration for the wisdom of the sages who formed this constitution; considering the difficulties they had to encounter, resulting from the various local prejudices and local interests of the different parts of the United States, and the vast variety of opinions which the subject presented, it was almost wonderful to conceive how they should have hit upon a system so admirably calculated to protect and to promote the general interests, when administered according to its original meaning and intention. He could not go so far as to say it was perfect. He admitted, like other human productions, it was stamped with the common fallibility of man. That he wished, however, to see no radical changes in its principles. He wished to hand it down to posterity with those amendments only which experience should suggest, and which would grow out of the continually varying state of the nation. He said it was not only remarkable for the wisdom of its arrangements, but the correct and technical mode of expression. The part of the section now to be examined, was an example of the justice of both these remarks. The words are, "the judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."

The first part of the sentence respects the relationship between the Executive and the Judiciary Departments. It respects judges or officers of the courts who are appointed by the President. The last part of the sentence respects the relationship between the Legislative and Judiciary Departments. It respects the creation of offices, the fixing the compensation of the officers or judges, and their continuance in office. These are the peculiar attributes of the Legislative Department. Accordingly, the most correct and technical words are used in relation to both these objects. The term "hold their offices during good behavior," relates merely to the Executive Department. The term "hold," is the common technical word used to convey the idea of tenure. Tenure requires two parties. The one granting, the other holding or receiving the grant. Let the inquiry be made, of whom do the judges hold? The constitution furnishes the answer, of the President. One of the most obvious rules in the construction of instruments of writing is, that the whole of it must be taken together, and not one particular part by itself. The following words will be found in the second section of the second article of the constitution: "And he (to wit, the President) shall nominate, and, by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." In the third section of the same article, are these words: "And shall (to wit, the President) commission all the officers of the United States." These three sentences contain the relationship between the Executive and Judiciary Departments, so far as respects the objects of the present discussion.

To ascertain the real meaning and import of these sentences, they should be read in connection with each other, excluding therefrom all intermediate words not immediately bearing on the subject. In that case the constitution would read thus: "He (to wit, the President) shall nominate and appoint the Judges of the Supreme Court, and all other officers of the United States, and shall commission all the officers of the United States. The judges both of the supreme and inferior courts shall hold their offices during good behavior." It may now be asked, if this case of the judges of the supreme and inferior courts be not an obvious exception out of the general Presidential discretion of appointing and commissioning all officers of the United States during pleasure? After the Government has been in operation above twelve years, and the principle of commissioning all Executive officers during pleasure, has been practised upon during the whole of the period by the Executive, as well as the Legislative Department, the propriety of that practice is for the first time now become questionable. It is said that the right to commission during pleasure, is by implication. It is readily admitted that there are no express words in the constitution to that effect; but the inference from the words which are there, is almost as strong as the words themselves, if they had been inserted. The President is authorized, without limitation, to "commission all the officers of the United States." The question arises, by what tenure? The reply is, according to his pleasure or discretion. It was not difficult to foresee, that if the President was fully empowered to commission as he pleased, he would please to commission during his pleasure. The Legislature has no more control over an officer who holds an Executive commission during the pleasure of the President, than over a Judicial officer holding his office during good behavior. The remedy given by the constitution being the same in both cases, to wit, impeachment. Nor is there any reason why the office of the one should be less subject to the discretion of the Legislature, than the office of the other; and it seems to be universally agreed, that although the Legislature cannot deprive an Executive officer of his office in any other way than by impeachment, during the continuance of such office, yet the office itself is always subject to be abolished. The same reasoning will hold with equal force respecting a judge and a Judicial office. The reason why the Executive is proscribed from the removal of a judge, is to secure to the judge a complete independence of the President, who is not responsible for the discharge of Judicial duties; but the removal is perfectly correct in the case of an Executive officer, because the President is highly responsible for the due discharge of Executive duties. The Legislature is not responsible for either, and of course stands in the same constitutional relation to both. This appears obvious from furnishing to the Legislature the same means of removing both, as will appear by the fourth section of the second article, in the following words: "The President, Vice President, and all civil officers of the United States, shall be removed from office by impeachment for, and conviction of treason, bribery, or other high crimes or misdemeanors." He now begged to call the attention of the committee particularly to the last clause of the sentence, which ascertains the constitutional connection between the Legislative and Judicial Departments, so far as respects the limitation of the Legislative, in the exercise of the power committed to it, for the organization of the Judicial Department. He should place particular emphasis on these words of the constitution in the exposition he proposed to make. The words are: "And shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." The first part of this section having given to Congress the power of creating courts, ascertaining the number of judges, &c., these last words may be considered as containing explanations and limitations of the general power of Congress, as was the foregoing part of this sentence a limitation of the general Executive power. And accordingly the most correct terms are used for limiting Legislative discretion, and explaining its objects; according to the words of this sentence, the judge is to receive a compensation for his services. To whom are these services to be rendered? To the people, for the benefit of the people. Who is to judge of the necessity or utility of these services? The constitution has ordained, that Congress, or, in other words, the Representatives of the people, shall be the tribunal. Suppose there should be no services required, none for the judge to perform, and that Congress should so think and determine: is the judge entitled to compensation? He is not. The condition of service for the benefit of the people, is the express consideration upon which the compensation accrues. No service is rendered, the competent tribunal says, there is none required, of course no compensation accrues. The judge is entitled to receive none. On this point, an obvious and most important difference of opinion exists between the two sides of the committee. On one side it is contended, that the office is the vested property of the judge, conferred on him by his appointment, and that his good behavior is the consideration of his compensation; so long, therefore, as his good behavior exists, so long his office must continue in consequence of his good behavior, and that his compensation is his property in virtue of his office, and therefore cannot be taken away by any authority whatever, although there may be no service for him to perform. On the other side, it is contended that the good behavior is not the consideration upon which the compensation accrues, but services rendered for the public good; and that if the office is to be considered as a property, it is a property held in trust for the benefit of the people, and must therefore be held subject to that condition, of which Congress is the constitutional judge. Mr. G. said, considering the boundary line between these conflicting opinions to be the boundary line between the offices held for public utility, and offices held for personal favor, he could not bestow too much attention upon this part of the discussion; for if the construction gentlemen contend for should prevail, in vain have the framers of the constitution, with so much jealous circumspection, erected so many ramparts against the introduction of some of these offices in the Government of the United States. A sinecure office is an office held without the condition of service; often for past services already compensated; often for present favor, without the condition of any service. For the purpose of excluding from the Federal Government all sinecure offices, the sages who formed the constitution have through every part of it connected services and compensation, and they ought never to be separated in construction. The sixth section of the first article is in these words: "The Senators and Representatives shall receive a compensation for their services, to be ascertained by law," &c., and so far has this principle of the rendition of service been carried, that the service of the Senate and Representatives is to be rendered every day, and unless they do daily render service, they are not entitled to their day's compensation. In the first section of the second article of the constitution, are these words: "The President shall, at stated times, receive for his services a compensation," &c. In the forty-first section of the act under which the judges claim their compensation, are these words: "That each of the circuit judges of the United States, to be appointed by virtue of this act, shall be allowed as a compensation for his services," &c. These expressions all demonstrate the importance of coupling the service and compensation of office. But the jealous caution of the framers of the constitution did not stop at choosing the best affirmative expression for excluding this doctrine of sinecure offices, they also applied negative restraints.

In the ninth section of the first article of the constitution, are these words, "No money shall be drawn from the Treasury but in consequence of appropriations made by law." In the same section, "No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them, shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign State." If then services rendered for the public benefit be the essential consideration, upon which the compensation does accrue to the judges; if the Congress be the proper tribunal for pronouncing upon the necessity or utility of such service, and if they decide that no such service is necessary or useful; the judge sustains no injury in not receiving the compensation, because he does not comply with the condition on his part; nor does he sustain a hardship thereby, because it must be presumed that he understood the second conditions attached to his office at the time of his acceptance. It has been admitted by all gentlemen, that Congress is the constitutional tribunal for deciding respecting the services to be performed. They admit that Congress may modify the courts, diminish or add to their duties, alter the terms of their sessions, or make any other arrangements respecting them which do not go to take away or diminish their compensations. It is to be observed that there is not one of these powers specified in the constitution; they are therefore necessary inferences from the paramount power "to ordain and establish," and the power of repeal, or to take away all the services to be performed, is as necessary an inference as either of the others, and has uniformly resulted from every other specified power in the constitution. From this part of the sentence, therefore, it is deducible, that the only restraint upon the general power given to Congress in the first part of the section to ordain and establish courts, is, that the compensations of the judges should not be lessened during their continuance in office; not during their good behavior. And in this part of the sentence the correct phraseology of the constitution is worthy of observation. In speaking of the Executive attribute, to wit, the appointing and commissioning officers, the term good behavior is used. In speaking of the Legislative attribute, to wit, the creation of the offices and fixing compensations, the term during their continuance in office is used. The reason for this variation of expression is obvious. It was known that the office might be discontinued, and the judge continue to behave well; the limitation was therefore applied to the office, and not the good behavior, because if the office should be discontinued, which is clearly implied in this expression, it was not the intention of the constitution that the compensation should be received, no service in that event being to be rendered. From this interpretation of the constitution, all of the departments are preserved in the due exercise of their respective functions for the general good, without any of the mischievous and absurd consequences resulting from the opposite construction. It is admitted that the first part of this section expressly vests Congress with the general power to ordain and establish courts; and, if there had been no other restriction, the consequent power to unordain, or abolish. The restriction relied upon is not a restriction in express words: there are no words in the constitution prohibiting Congress from repealing a law for organizing courts; the restraint contended for, therefore, is by implication, and that implication, to say the least, not expressly connected with any Legislative attribute. Is it right, is it a correct interpretation, that when a power is given in express words for the most important purposes, that it should be restrained or prohibited by implication? Can so much inattention and folly be attributed to the framers of the constitution, as would result from the supposition that if it was their intention that a law growing out of one of the specified powers, in contradistinction to all others, should be irrepealable when once passed, that so extraordinary a principle would be left to mere implication? Such a supposition would be the highest injustice to the superior intelligence and patriotism of those gentlemen, manifested in every other part of the instrument. No, sir, they would have made notes of admiration: they would have used every mark, adopted every caution, to have arrested and fixed the attention of the Legislature to so extraordinary a principle.

They would have said, Legislators! Be circumspect! Be cautious! Be calm! Be deliberate! Be wise! Be wise not only for the present, but be wise for posterity! You are now about to tread upon holy ground. The law you are now about to pass, is irrepealable! Irrevokable! We are so enamored with the salutary and practical independence of the English Judiciary system, that in infusing its principle into our constitution, we have stamped it with the proverbial folly of the Medes and Persians! If this principle had been introduced into the constitution in express words, it would have formed an unfortunate contrast to all other parts of the instrument; yet gentlemen make no difficulty in introducing that principle by construction, which would have appeared so stupid and absurd if written in express words in the body of the instrument. But there is no such language in the constitution. Let us see what is the language of that instrument, "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, then, instead of cautioning the Legislature that a law for the organization of courts, when passed, can never be repealed, it contains an invitation to a revision from time to time. It contains an intimation, that the subject is new and difficult, and an injunction to ordain and establish your courts from time to time, according to the results, which an experience of the system alone could suggest. The gentleman from Pennsylvania (Mr. Hemphill) observed that the character of irrepealability was not exclusively attached to this law, and attempted to furnish instances of other laws of the same character. He instanced a law for the admission of a new State into the Union.

The gentleman from Kentucky (Mr. Davis) had given a proper reply to that remark; the strongest instance the gentleman gave, was of a law executed. After the new State is remitted into the Union, in virtue of a law for that purpose, the object of the law is answered. The State admitted has no stipulated duties to perform on its part, no services to render; in the case before the committee the law is in a state of execution, and the judges have services to render on their part which the competent tribunals may determine to be neither useful nor necessary. A law for the appropriation of money to a given object, may be adduced is an instance; the money is applied; its object is answered; the law may be said to be irrepealable, or, in other words, the repeal would produce no effect. That is not the case of the law in question. Mr. G. said he had no doubt but that the framers of the constitution had particular reference to the British act of Parliament of William III. for the establishment of the independence of the judges in that country, in framing the section for the establishment of the Judicial Department in the United States; and it is not a little remarkable, that whilst gentlemen in one breath speak of the independence of the English judges, as the boast and glory of that nation, in the next breath they tell us that by the repeal of the present act, the independence of the judges here would be immolated. Let this subject be examined. In the third chapter of the first book of Blackstone's Commentaries, the independence of the English Judiciary is fully explained. He begged to read the exposition of that commentator on that subject.

"And, in order to maintain both the dignity and independence of the judges of the superior courts, it is enacted by the statute, 13 W. III. c. 2, that their commissions shall be made (not, as formerly, durante bene placito, but) quam diu bene se gesserint, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both Houses of Parliament. And now, by the noble improvements of that law in the statute of Geo. III. c. 23, enacted at the earnest recommendation of the King himself, from the Throne, the judges are continued in their offices during their good behavior, notwithstanding any demise of the Crown, (which was formerly held immediately to vacate their seats,) and their full salaries are absolutely secured to them during the continuance of their commissions. His Majesty having been pleased to declare, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as the most conducive to the honor of the Crown.""

Now, sir, under the doctrine contended for by the repeal of this law, let us see whether the judges of the United States are not more independent than the judges of England. In the first place, Congress have the power of originating, abolishing, modifying, &c., the courts here. The Parliament in England have the same power there. Congress cannot remove a judicial officer from his office so long as the office itself is deemed useful, except by impeachment, two-thirds of the Senate being necessary to a conviction. In England, judges can be removed from their offices, although the offices may be deemed useful, by an address of the majority of the two Houses of Parliament. Here then is one essential advantage in favor of the independence of the judges of the United States. Congress cannot diminish the compensation of the judges here during their continuance in office. In England, the Parliament may diminish the compensation of the judges, at their discretion, during their continuance in office. Here, then, is another obvious advantage in favor of the independence of the judges of the United States; whence is it, then, that we hear of the independence of the English judiciary, as being the boast and glory of that country, and with justice, too, and at the same time hear the cry of the immolation of the independence of the judges of the United States, when, under the interpretation of the constitution by the favorers of the repeal, the judges here are more independent than the English judges? It can have no other object than to excite a popular clamor, which, if excited at all, can have only a momentary effect, and will be dissipated as soon as the subject shall be thoroughly examined and understood. But it appeared to him, that if gentlemen really do value the independence of the judges, they have taken an unfortunate ground in the interpretation of the constitution. Under their construction, the judges may be placed not only in a dependent, but a ludicrous point of view.

Gentlemen admit that Congress may constitutionally increase or diminish the duties of judges; give or take away jurisdiction; fix the times of holding courts, &c., saving therefrom the salaries of the judges. Under this admission, Congress may postpone the sessions of the courts for eight or ten years, and establish others, to whom they could transfer all the powers of the existing courts. In this case, the judges would be held up to the people as pensioners, receiving their money and rendering no service in return; or Congress might convert them into mere courts of piepoudre, assigning them the most paltry duties to perform, and keep them continually in session, in inconvenient places; whilst new courts could be erected to perform all the essential business of the nation. This would be taking down the high pretensions assigned to the judges by the gentleman from North Carolina, (Mr. Henderson,) of being formed into a permanent corps for the purpose of protecting the people against their worst enemies, themselves; and degrading them into pitiful courts of piepoudre, rendering little service and receiving large compensations. And this would be the case, if party purposes were the object, and not the general good. According to his construction, these absurd results could not take place, unless by a virtual breach of the constitution. Because, he contended, that service and compensation were correlative terms; and that there ought always to be a due apportionment of service to compensation. This he considered as the plain and sound interpretation of the constitution, and the moment it is departed from, infinite absurdities ensue. He intended to have taken another view of this subject, as it respects the relative influence of the law of the last session, and the proposed repeal upon this question; but the gentleman from Massachusetts (Mr. Bacon) has put this subject in so much stronger point of view than he could do, that he would refer to his remarks thereupon, observing only that he had no doubt but that the law of last session, now proposed to be repealed, was, in every respect, as much opposed to the doctrine of gentlemen, as the contemplated repeal could be. The sections of the law particularly alluded to, are the twenty-fourth, in these words, "and be it further enacted, that the district courts of the United States, in and for the districts of Tennessee and Kentucky, shall be and are hereby abolished," and the twenty-seventh, in these words, "and be it further enacted, that the circuit courts of the United States, heretofore established, shall cease and be abolished."

Mr. G. concluded by observing that, upon the whole view of the subject, feeling the firmest conviction that there is no constitutional impediment in the way of repealing the act in question, upon the most fair and candid interpretation of the constitution:—believing that principles advanced in opposition, go directly to the destruction of the fundamental principle of the constitution, the responsibility of all public agents to the people—that they go to the establishment of a permanent corporation of individuals invested with ultimate censorial and controlling power over all the departments of the Government, over legislation, execution, and decision, and irresponsible to the people; believing that these principles are in direct hostility to the great principle of Representative Government; believing that the courts formerly established, were fully competent to the business they had to perform, and that the present courts are useless, unnecessary, and expensive; believing that the Supreme Court has heretofore discharged all the duties assigned to it in less than one month in the year, and that its duties could be performed in half that time; considering the compensations of the judges to be among the highest given to any of the highest officers of the United States for the services of the whole year; considering the compensations of all the judges greatly exceeding the services assigned them, as well as considering all the circumstances attending the substitution of the new system for the old one, by increasing the number of judges, and compensations, and lessening their duties by the distribution of the business into a great number of hands, &c., while acting under these impressions, he should vote against the motion now made for striking out the first section of the repealing bill.