Thursday, February 3.
Memorial of Judges.
Agreeably to the order of the day, the Senate took into consideration the report of the committee on the several memorials of the judges, under the late act to provide for the more convenient organization of the courts of the United States. The committee report as follows:
That the petitioners were judges of certain courts, inferior to the Supreme Court, constituted by an act of the 13th of February, 1801, and duly commissioned to hold their offices during good behavior.
That, while holding and exercising their offices, an act was passed on the 8th of March last, to repeal the said act of the 13th of February, 1801, and transfer the duties of the said judges from them to others.
That a question has arisen whether, by reason of the premises, the said petitioners be deprived of their offices.
That this question, depending on the construction of the laws and Constitution of the United States, is not properly cognizable by the Senate.
The committee, therefore, conceive it improper either to give reasons or express opinions; but they consider it as a question of high and serious import, and believe that a speedy investigation and final decision is of great moment to the commonwealth.
Wherefore, they submit the following resolution.
Resolved, That the President of the United States be requested to cause an information, in the nature of a quo warranto, to be filed by the Attorney General against Richard Basset, one of the said petitioners, for the purpose of deciding judicially on their claims.
Mr. Morris said, I rise, Mr. President, as chairman of the committee whose report you have just had the goodness to read, for the purpose of explaining their reasons. If this were a common or an ordinary occasion, if no heats had been excited, if there were no unpleasant, no tormenting recollections, a measure so plain, so easy, so simple, would require neither argument nor persuasion. It would be adopted for its own interior evidence, and from the general sense of propriety. Unhappily, sir, this is not the case. Serious differences of opinion have existed, and still exist on the subject with which it is connected. From these have arisen disputes, divisions, bickerings. There is not, I fear, in the minds of men, that calm impartiality which is needful to fair investigation. There remains much of prejudice, of irritability.
Your committee have pursued the course which appeared to be proper, not only in itself, but according to the existent circumstances. Gentlemen will easily see that they might have made an elaborate report, containing a long detail of reasons to establish a favorite conclusion; and a slight knowledge of the forms of business will show, that they might have placed that report at length on your journals. But would this have been right? Would it have tended to conciliate? Would it have been a proper return for the unanimity with which your committee was chosen? Surely it would not; and is it not the duty of every good citizen to heal, as far as possible, the wounds of society? To calm those irritations which disturb its repose? To remove all things which may alarm, torment, or exacerbate?
Mr. President, your committee have no intention, no wish to revive a discussion of points already settled. While the act of last session was in agitation, we opposed it steadily, pertinaciously. But that act has become a law, and to the authority of the law we bow submissively. While in suspense, we thought it our duty, as Senators, to oppose it. But since it has been adopted, according to the forms of the constitution, we know that as citizens we are bound to obey. With these deep impressions, then, of what is due to the supreme law of our land, I shall proceed to the report of your committee, and endeavor to explain its several parts.
Gentlemen will perceive that the question which the memorialists have submitted to our investigation is, whether the law of last session has deprived them of their office of judge. Your committee consider this question as not being cognizable by the Senate. It is not for the Senate, nor the Representatives, nor both combined, to interpret their own acts. We are a part of the Legislature. A part of the Executive power is also delegated to us. If the Judiciary be added, it will constitute a tyranny. It is, indeed, the very definition of tyranny which has been given by those best acquainted with the subject. This Senate can have no wish to arrogate power. It is too just, too wise. If a sense of propriety did not prevent, prudence alone would forbid the attempt. This body is too feeble for the exercise of so much authority. Its form, its constitution, the mode and manner of its creation and existence, the strength and structure of its members, render it incapable of sustaining a greater weight of power.
Your committee, sir, have ventured to express their belief, that the question should be speedily settled. I learned in early youth, from the volumes of professional science, that it is expedient for the Commonwealth that a speedy end should be put to litigation; and if it be important that litigation should cease between man and man, how much more important that a litigated point of public right, which interests and agitates the whole community, should be laid at rest? And if this be important in the general course of things, is it not, under present circumstances, indispensable? And how is it to be effected? By an exertion of Legislative might; by force. Remember, force will excite resistance. Such is the nature of the human heart. Free citizens revolt with disdain at the exercise of force. But judgment commands their prompt, their willing obedience. When the law is known, when it is declared by the proper tribunals, all will bow to its authority. You, then, may expect a full, and quiet, and general submission. But while it is litigated and uncertain what the law is, differences will exist, and discord will prevail.
It is under these impressions, sir, that your committee have presumed to offer the resolutions on your table; and as some of the technical terms may not be familiar to every gentleman, it may be proper to state the kind of proceeding which is recommended.
The attorney general, or, as he is denominated in French idiom, the public accuser, will institute, before the proper tribunal, an inquiry by what authority these men claim to hold and exercise the office of judge. It will then be incumbent upon them, either to disclaim the office, and then there is an end of the question; or else (claiming it) to establish their right. And to do this, they must prove two things; first, that the office exists, and secondly, that of right it belongs to them. Failing of either, their claim is gone.
Now, sir, it may be well to consider the decisions which may be made, and their probable effect. I take it for granted, that these gentlemen, who have asked a Judicial decision, will not disclaim, and that whatever judgment may be given in the first instance, the cause will be brought up to the Supreme Court. If the judgment, in the last resort, should be (as it probably would be) against the claim, all complaint will be quieted, and all opposition will cease. Some then, indeed, might triumph. For my own part, I should find in it great consolation—the consolation of knowing that, however wrong may have been my own opinions, the Supreme Legislature of my country have done right. The pride of opinion might, indeed, be wounded; but God forbid, that from motives of pride, or from any other motive, I should hear, without deep concern, that the Legislature of my country have violated that sacred charter from which they derive their authority!
But suppose an opinion different, contrarient, or the very reverse (for that also is possible.) Will the judges rudely declare that you have violated the constitution, unmindful of your duty, and regardless of your oath? No. With that decency which becomes the Judicial character; that decency which upholds national dignity and impresses obedience on the public will; that decency, the handmaid of the graces, which more adorns a magistrate than ermine, aye, than royal robes; with that decency which so peculiarly befits their state and condition, they will declare what the Legislature meant. They will never presume to believe, much less to declare, that you meant to violate the constitution. There will be no dangerous and hateful clashing of public authorities. They will never question the exercise of that high discretion with which you are invested. They will not deny your full supremacy. They will not examine into your motives, nor assign improper views. They will respect you so long as they preserve a due respect for themselves. They will declare, that in assigning duties to one officer, and taking them from another, you have to consult only your own convictions of what the interest or convenience or the people may require. They will modestly conclude, that you did not mean to abolish the offices which the constitution had forbidden you to abolish; and, therefore, finding that it was not your intention to abolish, they will declare that the offices still exist. Such, sir, would be the language of your supreme Judiciary, from the high sense they entertain of their duty. And, if it were decent to suggest in this Senate, that they were lost to a sense of duty, can it be believed, that a few feeble judges will dare oppose themselves to the power of the Legislature?
The Vice President rose, and said he must call the attention of the Senate to the point in discussion, which was, whether the Senate would request the President to cause a process to be instituted for the purpose of ascertaining whether the petitioners still hold the office of judge. On this question, it could not be in order to go back to a law passed at the last session, and to discuss the merits of that law.
Mr. Jackson said, it appeared by the memorial that the petitioners considered themselves as being still judges, notwithstanding the law of last session. He thought, therefore, it could not be out of order to show that that act deprived them of their offices.
Mr. Wright premised, that he would endeavor to confine his remarks to the point before the Senate. He felt no disposition to travel again over the ground which had been traversed at the last session.
The petition was addressed to both Houses, and prayed for two things; first, that Congress, in their Legislative capacity, would assign to the petitioners some Judicial duties; and secondly, that they would authorize a Judicial investigation of their claim to compensation. The committee, therefore, ought to have confined their inquiries to these points, and to have reported accordingly. Instead of that, they had reported a resolution, which, if adopted, would be neither a grant nor a denial of the prayer of the petition. In doing this, the committee had exceeded their powers, and proposed a measure which the Senate itself was not authorized to adopt.
Mr. W. took a review of the constitutional powers of the Senate, in its Legislative and Executive capacities, and inquired, Have we any constitutional authority to make such a request of the President? In what part of the constitution is such power delegated to this House? Are we to make the request as private gentlemen, or as a constitutional organ of the Government. If as private gentlemen, the act would clearly be a nullity; the President would still be at liberty to comply with the request, or not, as he might think proper. If as a constitutional organ of the Government, where is the power given to the Senate? And what would be the remedy if he should refuse to comply? The Senate is the constitutional adviser of the President in the formation of treaties, and in the appointment of officers, &c. The constitution expressly declares that the President shall exercise these powers by and with the advice and consent of the Senate. Here, then, it is their right and their duty to advise him. But the constitution further says: "He shall take care that the laws be faithfully executed." Have the Senate any authority to advise him as to the faithful execution of the laws? They can go no further than they are expressly commissioned by the constitution. The specification of particular Executive powers, by the constitution, is a denial of all others. Admissio unius est exclusio alterius; and, as the constitution has given no power to this effect, it follows that no such power can be exercised by the Senate. If the courts have power to try the validity of laws of Congress, they can exercise that power as well without the authority of this resolution as with it. If they have not the power, neither this House nor the Legislature can give it them. The duties and the powers of the Supreme Court are defined by the constitution. Should the Senate, then, adopt the resolution, the Supreme Court would have no power to act under it, unless that power is given by the constitution. Let us, then, examine the authority of this court. The constitution says: "In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction." Will the gentlemen say that these judges are ambassadors, other public ministers or consuls, or that they are a state? If not, the Supreme Court can have no jurisdiction of the case, and the committee have imposed upon the Senate a resolution which they had no authority to submit. As to the law of the last session, by which these judges had been deprived of their offices, Mr. W. had no fear that the Supreme Court, or any body else would attempt to set it aside. The whole nation has approved the measure, as many of those who opposed it have fatally experienced.
The question on agreeing to the resolution was now taken, and determined in the negative—yeas 13, nays 15, as follows:
Yeas.—Messrs. Dayton, Dwight, Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Plumer, Ross, Tracy, Wells, and White.
Nays.—Messrs. Anderson, Baldwin, Bradley, Breckenridge, Brown, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, Nicholas, Stone, Sumter, and Wright.
Ordered, That the memorialists have leave to withdraw their memorial.