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

by United States. Congress

Thursday, January 27.

United States Judges.

The several petitions of William Tilghman, Oliver Wolcott, Richard Bassett, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, Philip B. Key, William Griffith, Jeremiah Smith, and George K. Taylor, were presented to the House and read, respectively representing, that, by an act of Congress, passed on the thirteenth day of February, one thousand eight hundred and one, entitled "An act for the more convenient organization of the courts of the United States," certain judicial offices were created, and courts established, called Circuit Courts of the United States: That, in virtue of appointments made under the Constitution of the United States, the petitioners became vested with the offices so created, and received commissions, authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior: That, during the last session, an act of Congress passed, by which the above-mentioned law was declared to be repealed; since which no law has been made for assigning to the petitioners the execution of any judicial function, nor has any provision been made for the payment of their stipulated compensations: That, under these circumstances, and finding it expressly declared in the Constitution of the United States that "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," that petitioners are compelled to represent it as their opinion, that the rights secured to them by the constitution, as members of the Judicial Department, have been impaired: That, "with this sincere conviction, and influenced by a sense of public duty, they most respectfully request of Congress to review the existing laws, which respect the offices in question, and to define the duties to be performed by the petitioners, by such provisions as shall be consistent with the constitution, and the convenient administration of justice:" That "the right of the petitioners to their compensations, they sincerely believe to be secured by the constitution, notwithstanding any modification of the Judicial Department, which, in the opinion of Congress, public convenience may recommend. This right, however, involving a personal interest, will cheerfully be submitted to Judicial examination and decision, in such manner as the wisdom and impartiality of Congress may prescribe: That judges should not be deprived of their offices or compensations, without misbehavior, appears, to the petitioners, to be among the first and best established principles of the American constitutions; and, in the various reforms they have undergone, it has been preserved and guarded with increased solicitude: That, on this basis, the Constitution of the United States has laid the foundation of the Judicial Department, and expressed its meaning in terms equally plain and peremptory:" That, "this being the deliberate and solemn opinion of the petitioners, the duty of their stations requires that they should express it to the Legislative body. They regret the necessity which compels them to make the representation; and they confide, that it will be attributed to a conviction that they ought not, voluntarily, to surrender rights and authorities intrusted to their protection, not for their personal advantage, but for the benefit of the community."

Mr. Griswold moved a reference of the foregoing memorial to a select committee.

Mr. Gregg observed that, according to the usual mode of transacting business, it ought to go to the Committee of Claims. He, therefore, made that motion.

Mr. Randolph did not think a select committee, or the Committee of Claims, a proper committee to whom to refer this memorial. What is its nature? Does it embrace any point of fact on which a committee is to make inquiry? No. It is a broad constitutional question. He was, therefore, in favor of having it examined, where it must eventually be settled, in the House. If, therefore, the memorial had any reference, it ought to be referred to a Committee of the whole House; to which effect he made a motion.

Mr. Bacon hoped this last motion would not obtain. He did not know what there was in this petition to distinguish it from any other petition from any citizens of the United States. It was suggested that it involved a great constitutional question. He did not know that this was the case. Any thing might be made a constitutional question. But he thought this question had been already determined by the whole Legislature on the most mature deliberation. He saw nothing to distinguish this petition from other petitions. He would not say that it would be doing it too much honor, but it would be making too wide a difference between similar applications to adopt this course. He was, therefore, for pursuing the common course.

Mr. Griswold had no objection to a reference of the memorial to a Committee of the Whole. Perhaps that would be the better mode. It was true, as the gentleman from Virginia had stated, that a very important constitutional question may arise on this memorial. Nor did he know, as represented by the gentleman from Massachusetts, (Mr. Bacon,) that all the constitutional questions involved in the subject had been settled by the decision of the last session. He had understood the gentleman himself, in his speech, during the last session, to have said that the question of compensation was a very different question from that then under discussion. He was not absolutely certain that that gentleman expressed such an opinion, but he was certain that some gentlemen of the majority did. As the memorial was couched in terms of great respect, he trusted there would be no objection on the part of the House to give it a proper attention.

Mr. Randolph would concisely answer the gentleman from Massachusetts. Does this question involve an inquiry either into matter of expediency or of fact? With respect to fact, they were all agreed. The judges make the question turn on a construction given to the constitution; it was, therefore, indubitably a constitutional question, on which a committee could not decide. The House, then, must decide. It appeared to him to be the plainest case on earth. No doubt constitutional questions may arise on many points. He hoped, therefore, the House would itself decide it. For his part, he considered the decision as already made. He hoped the memorial would be taken up that day.

Mr. Smilie was against referring the memorial to a Committee of the Whole. If the subject had not been already maturely considered and discussed at the greatest length, he should be in favor of such a reference. But it had been most fully discussed. If they meant to sit there to the neglect of the important business, they ought to go into Committee of the Whole; but if they meant to do the public business, they ought not. Gentlemen should recollect the time spent in this discussion the last session.

Mr. Dana thought the gentleman from Pennsylvania did not calculate correctly. The same object, as to debate, would be attained in the House as in a Committee of the Whole. For he would recollect, that notwithstanding the length of the debate of the last session, and though the House were in Committee, no gentleman had spoken more than once; and, according to the rules of the House, every member had a right to speak twice.

Mr. Dana said that he agreed with the gentleman from Virginia in the ideas he had expressed.

The question was then taken on Mr. Randolph's motion to refer the memorial to a Committee of the whole House, and carried—ayes 53.

The Speaker inquired for what day it should be made the order.

Mr. Randolph said, to-day.

Mr. Griswold, to-morrow.

The question was taken on Mr. Griswold's motion, and lost—ayes 38, noes 51.

Mr. Huger moved that it should be the order for Monday. It must be evident, that the members had not yet sufficiently attended to the subject to be prepared for a decision. It was a very different question from that decided the last session. It certainly required some little time to enable gentlemen to revolve it in their minds. It was not usual to force decisions in that way. If it was the object of gentlemen merely to vote it out, a majority must do as they please; but if they were disposed to pay it ordinary respect, they certainly could not urge so precipitate a discussion.

Mr. Randolph asked if it were in order, after the question had been taken, to name another day. He said he would not have urged an immediate consideration of the memorial, but for the conviction that the subject, in all its bearings, had undergone the maturest investigation, not only of every member on that floor, but of every thinking man in the United States.

The Speaker decided that the moving another day was not in order.

The question on going into a Committee of the Whole this day, was then carried without a division. Whereupon,

Mr. Randolph moved that the House should go into committee immediately.

The Speaker said the unfinished business of yesterday would be the first acted upon unless postponed.

Mr. Randolph moved the postponement of the unfinished business till to-morrow. Carried.

The House then resolved itself into a Committee of the Whole on the memorial—Mr. Dawson in the chair.

The memorial of William Tilghman was read; which was accompanied by ten other verbatim memorials, signed by Oliver Wolcott, Jeremiah Smith, Richard Bassett, Philip B. Key, George K. Taylor, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, and William Griffiths.

Mr. Griswold said, he did not think it proper to enter into an extensive discussion of the memorial. The haste with which the consideration of it was urged, appeared to him indicative of a disposition to reject it altogether. Under such circumstances discussion would be useless. At the same time, he would remark, that it involved a question very different from that decided at the last session. It had, then, been decided that the Legislature had the constitutional right to deprive the judges of all Judicial power; but the question never was settled, that, notwithstanding the judges should be deprived of all their Judicial powers, they were not entitled to the compensation guaranteed by the constitution. This involved a distinct point, which ought not to be hastily acted upon. The judges had never been heard before Congress on this question. They had a right by the constitution to be heard, and to be heard by counsel, he presumed, if they desired it. He had thought the House would have given time for them to be heard. But they had determined to proceed immediately. He should, therefore, be content with moving two resolutions.

Mr. Griswold here read his resolutions as follows:

Resolved, That provision ought to be made by law to define the powers to be exercised by the judges of the circuit courts of the United States, who were appointed under an act, entitled "An act to provide for the more convenient organization of the courts of the United States."

Resolved, That provision ought to be made by law for submitting to judicial decision the right of the judges of the circuit court to their compensations.

Mr. Randolph said, the provision desired by the gentleman from Connecticut already exists. The Legislature has defined the powers of the late circuit judges, and has decided that they shall not execute any powers. Those powers are transferred to other courts. Unless the House had changed their opinion, it was not necessary to go into any discussion on this point. The readiest and fairest course for gentlemen would be to propose to repeal the law of the last session, and restore the judges.

The question was then taken on the first resolution, and lost—ayes 34, noes 56.

The Chairman then read the second resolution, as follows:

Resolved, That provision ought to be made by law for submitting to judicial decision the right of the judges of the circuit court to their compensations.

Mr. Randolph said he was not ready for the question. He had one or two remarks to offer, which had suggested themselves during the reading of the resolution. It had been repeatedly decided that the United States would not permit themselves to be brought into their own courts. Wherefore grant to a particular class of persons, in a single case, that which had ever been refused to the war-worn soldier of the Revolution; especially when it should be recollected that this case, involving the interests of judges, as a caste, could not be decided by any judicial tribunal free from bias?

A doctrine is advanced new to this House, which I have been told originated with an eminent character on the bench of the United States; I did not hear the gentleman from Connecticut distinctly, but I understand him as subscribing to it; that Congress may, constitutionally, deprive a judge of all authority, and transfer to another his powers and duties, but that the office nevertheless remains, and the judge, of course, entitled to his compensation. The constitution says that "the judges shall hold their offices during good behavior, and shall, for their services, receive a compensation." Without entering into a question which has already been so fully discussed, he would barely remark, that if the position just advanced be correct, the words "compensation" and "office," which the constitution supposes, and every one believes, to have distinct and different meanings, must be convertible terms. For when the powers and duties are taken away, what, let me ask, is left but a salary? The word office must be rendered by the word salary.

Mr. Dana.—The question of compensation to the judges involved considerations very distinct from those ordinarily decided upon in that House. Most of the individual cases brought here were made in pursuance of some particular law, and did not call in question the authority of Congress. If the case of the judges were to be referred to any tribunal, the right to refer was founded on the principle of controlling the decisions of the Legislature in case those decisions should appear to the tribunal to be unconstitutional. It was, therefore, in this view not proper to refer the question to a tribunal dependent on the body to be controlled. This was the only course that would probably be deemed impartial by all the parties concerned.

Mr. Bacon said the true question was on the constitutionality of the repealing law. One Congress had passed a law constituting certain courts, which at the last session had been repealed. Now of what do courts consist? Of judges, who are officers of the court. The question is, whether by abolishing the courts, these officers are abolished. He supposed they were. He considered the terms as synonymous. Now the question is whether, if the offices are abolished, those who filled them before they were abolished are entitled to salaries? That is the only question that remains undetermined. What does the constitution say? Admitting the offices abolished, it says: "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."

Does it not follow that if they continue in office they are entitled to a salary for the services they perform. If they do not continue in office they are entitled to nothing, and the constitution has no reference to them. This is the true question.

Mr. Smilie would ask whether the Supreme Court in such a case as this could be denominated an impartial tribunal? He asked if they had not seen the time when, during the disputes between the clergy and laity, no wise man, not of the clerical order, would have trusted himself in the hands of the clergy? The same remark applied to the military, and also, with equal force, to the Judges of the Supreme Court. He really, however, thought that the judges would not receive the salaries, even if they were offered to them, as it would be contrary to every idea of patriotism. He, therefore, considered the application as a mere matter of form.

Mr. Nicholson.—The resolution contemplated giving the power to try the right of the judges to their claims; but the great object in reality was to authorize the judges of the Supreme Court to decide upon the constitutionality of the repealing act. Let this object, then, be avowed; let it be so declared openly, and not introduced in this incidental manner. From the remarks made last year by gentlemen on the other side of the House, it was a little surprising that this application should be made, for it was then strenuously contended that the Supreme Court had the right to decide upon the constitutionality of all laws. Why, then, ask for it? If they have this right we need not confer it; if they have it not, we cannot give it them. If the petitioning judges can bring their case before the Supreme Court, let them do so; my consent shall never authorize it. If the Supreme Court shall arrogate this power to themselves, and declare our law to be unconstitutional, it will then behoove us to act. Our duty is defined.

Mr. Eustis said when the office of judge was abolished all his duties ceased. The salary allowed was a compensation for services. Now when there were no services to be performed, what salary could there be allowed, or what retribution demanded? on what did this claim rest? On the opinion of the judges. But by the decision of the last winter their offices were abolished; it followed, therefore, of consequence, that their salaries ceased too. This was a plain and simple question. He considered the memorial as the protest of the judges against this decision. As such, he was willing that it should rest on the files of the House, and instead of being offended at this treatment the judges ought to be thankful.

Mr. Dana said the ideas of the gentleman from Massachusetts were in one respect correct. The memorial of the judges was a protest against the law passed by Congress. It was proper they should make it, so far as they confined themselves to language not indecorous or disrespectful. He would admit likewise that the question of powers decided the question of salary; others however entertained a different opinion. Why object then, in a case where there was a difference of opinion, to refer the decision to an impartial tribunal? The only question is whether in a contest for power, you, the Legislature, will claim the exclusive exercise of power, and whether, even if you shall exceed the constitutional limits, you will assert the entire right of saying so, or whether you will refer it to a tribunal which shall be an umpire between those who hold different opinions?

Mr. Alston said the resolution required amendment. As it now stood, it would appear that all the late judges of the circuit court claimed a compensation for services not rendered. He believed this was not the case. There were some of those judges who had made no such request. He, therefore, moved to insert the name of those who had presented memorials; also to insert the word "late" before the word "judges."

Carried without a division.

The resolution as amended stood thus:

Resolved, That provision ought to be made by law for submitting to judicial decision the right of William Tilghman, Oliver Wolcott, Jeremiah Smith, Richard Bassett, Philip B. Key, George K. Taylor, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, and William Griffiths, late judges of the circuit court appointed under an act entitled "An act to provide for the more convenient organization of the courts of the United States passed on the thirteenth day of February, 1801;" which said act was repealed at the last session of Congress, to their compensations.

On which the question being put, it was lost—ayes 35 noes 57.

Mr. Varnum observed that the memorial contained two principles, both of which had been negatived. To draw the attention to a final decision he would move another resolution, to wit:

Resolved, That the prayer of the petition of William Tilghman and others, (naming them,) late judges of the circuit courts of the United States, ought not to be granted, and that the petitioners have leave to withdraw their petitions.

Mr. T. Morris moved that the committee should rise and report progress, that the petition might be printed. Negatived without a division.

The resolution was then carried without a division, when the committee rose and reported it.

The House immediately took it into consideration; when

Mr. Randolph moved to strike out the words, "late judges of the circuit courts of the United States."

Mr. Griswold said he presumed it was not the object to expunge all evidence of these gentlemen being judges, or late judges of the circuit courts of the United States, and yet that would appear to be the effect of the motion. He must, therefore, call for the yeas and nays, which would make that fact be recorded on the journals.

Mr. Randolph said he had made the motion that the resolution might conform to the prayer of the petition. Had the memorialists called themselves late judges, he should have had no objection to their being so designated in the resolution. His wish was to style them in the resolution as they had styled themselves.

Mr. Griswold said, though they had not expressly styled themselves circuit judges, yet they had stated that they had been appointed circuit judges under a law of the United States. They had therefore virtually so styled themselves.

A few words were added by Mr. Eustis against it, and by Messrs. Randolph and Nicholson in favor of striking out the words, when the question was taken by yeas and nays and carried—yeas 50, nays 47.

And then the main question being taken, that the House do agree to the resolution reported from the Committee of the whole House, amended to read as follows:

Resolved, That the prayer of the petitions of William Tilghman, Oliver Wolcott, Richard Bassett, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, Philip B. Key, William Griffith, Jeremiah Smith and George K. Taylor, ought not to be granted; and that the petitioners have leave to withdraw their petitions.

It was resolved in the affirmative, yeas 61, nays 37, as follows:

Yeas.—Willis Alston, John Archer, John Bacon, Phanuel Bishop, Walter Bowie, Richard Brent, Robert Brown, William Butler, Samuel J. Cabell, Thomas Claiborne, Matthew Clay, John Clopton, John Condit, Richard Cutts, Thomas T. Davis, John Dawson, William Dickson, Peter Early, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Edwin Gray, Andrew Gregg, John A. Hanna, Daniel Heister, Joseph Heister, William Helms, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Samuel L. Mitchill, Thomas Moore, James Mott, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, John Randolph, jr., John Smilie, Israel Smith, John Smith, (of New York,) John Smith, (of Virginia,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Isaac Van Horne, Robert Williams, Richard Winn, and Thomas Wynns.

Nays.—Thomas Boude, John Campbell, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Abiel Foster, Calvin Goddard, Roger Griswold, William Barry Grove, Seth Hastings, Joseph Hemphill, Archibald Henderson, William H. Hill, Benjamin Huger, Samuel Hunt, Thomas Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thomas Morris, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, William Shepard, John Cotton Smith, John Stanley, John Stratton, Benjamin Tallmadge, Samuel Tenney, Samuel Thatcher, Thomas Tillinghast, George B. Upham, Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel Williams, and Henry Woods.