Wednesday, January 13.
The Judiciary System.
The Senate resumed the consideration of the motion made on the 6th inst. that the act of Congress passed on the 13th day of February, 1801, entitled "An act to provide for the more convenient organization of the Courts of the United States," ought to be repealed.
Mr. Mason, of Virginia.—I feel some degree of embarrassment in offering my sentiments on a subject so fully and so ably discussed. I believe that the ground taken by my friend from Kentucky has not been shaken by any arguments urged in opposition to the resolution on the table. Yet as some observations have been made, calculated to excite sensibility, not here, but abroad; as they appear to have been made with a view to that end; and as an alarm has been attempted to be excited on constitutional ground, I think the observations ought not to go unnoticed.
I agree with gentlemen, that it is important, in a well-regulated government, that the judicial department should be independent. But I have never been among those who have carried this idea to the extent which seems at this day to be fashionable. Though of opinion that each department ought to discharge its proper duties free from the fear of the others, yet I have never believed that they ought to be independent of the nation itself. Much less have I believed it proper, or that our constitution authorizes our courts of justice to control the other departments of the Government.
All the departments of a popular government must depend, in some degree, on popular opinion. None can exist without the affections of the people, and if either be placed in such a situation as to be independent of the nation, it will soon lose that affection which is essential to its durable existence.
Without, however, going into an inquiry of what kind of organization is most fit for our tribunals; without inquiring into the fitness of making the judges independent for life, I am willing to enter into a consideration, not of what ought to be, but of what is. Whatever opinion I may individually entertain of the provisions of the constitution relative to the Judiciary, sitting here under that constitution, I am bound to observe it as the charter under which we are assembled.
When I view the provisions of the constitution on this subject, I observe a clear distinction between the Supreme Court and other courts. I am sensible that when we come to make verbal criticisms, any gentleman of a sportive imagination may amuse our fancies by a play upon words. But this is not the way to get rid of a genuine construction of the constitution. With regard to the institution of the Supreme Court, the words are imperative; while, with regard to inferior tribunals, they are discretionary. The first shall, the last may be established. And surely we are to infer from the wise sages that formed that constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even points, elucidate its meaning. When, therefore, the constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it as of constitutional creation? And on the other hand, from the language applied to inferior courts, are we not justified in considering their establishment as dependent upon the Legislature, who may, from time to time, ordain them, as the public good requires? Can any other meaning be applied to the words "from time to time?" And nothing can be more important on this subject than that the Legislature should have power, from time to time, to create, to annul, or to modify the courts, as the public good may require, not merely to-day, but for ever; and whenever a change of circumstances may suggest the propriety of a different organization. On this point, there is great force in the remark of the gentleman from Georgia, that among the enumerated powers given to Congress, while there is no mention made of the Supreme Court, the power of establishing inferior courts is expressly given. Why this difference, but that the Supreme Court was considered by the framers of the constitution, as established by the constitution, while they considered the inferior courts as dependent upon the will of the Legislature.
If the arguments now urged be correct, that a court once established cannot be vacated, we are led into the greatest absurdities. Congress might deem it expedient to establish a court for particular purposes, limited as to its objects or duration. For instance: the United States has taken possession of the Mississippi Territory, rightfully or not, I will not pretend to say. This territory has been heretofore in the hands of various masters, viz: France, England, Spain, and Georgia; and it is now possessed by the United States. All these Governments, except the United States, made certain grants of lands in the territory, and certain settlers spread their conflicting patents over the country. These different titles will open a wide field for litigation, which will require able tribunals to decide upon. Suppose, then, Congress should establish special tribunals to continue for three, four, or five years, to settle these claims. Judges would be appointed. They would be the judges of an inferior court. If the construction of the constitution now contended for be established, what would the judges say, when the period for which they were appointed expired? Would they not say, we belong to inferior courts? Would they not laugh at you when you told them their term of office was out? Would they not say, in the language of the gentleman from New York, though the law that creates us is temporary, we are in by the constitution? Have we not heard this doctrine supported in the memorable case of the mandamus, lately before the Supreme Court? Was it not there said that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years; that it was right in making the justices, but unconstitutional in limiting their periods of office; that, being a judicial officer, he had a right to hold his office during life—or, what is the same thing—during good behavior, in despite of the law which created him, and, in the very act of creation, limiting his official life to five years.
I may notice another case, more likely to happen, to show the absurdity of this construction. Congress have assumed jurisdiction over the Mississippi Territory, and have established a court, composed of three judges, which court is as much an inferior court as the circuit or district courts. Of this jurisdiction Georgia denies the validity. The contest is in a train of settlement. Suppose it shall turn out that the United States are convinced of the injustice of their claim, relinquish it, and restore the territory to Georgia, what becomes of the judges? Their offices, their duties, are gone! Yet they will tell you, we are vested with certain constitutional rights, of which you cannot deprive us. It is true the territory is no longer yours. You have no jurisdiction, we have no power, yet we are judges by the constitution. We hold our offices during good behavior, and we will behave well as long as you will let us. Is not this a strange situation? You have judges in a territory over which you have no jurisdiction; and you have officers which are perfect sinecures, pensioners for life. Such an absurdity I am sure the constitution never meant to justify. It is an absurdity equally repugnant to the letter and genius of the constitution.
But it would seem that the argument urged on this occasion, and the general course of our legislation, had been grounded more on the convenience and emoluments of those appointed to office, than on grounds of public utility. First, we appointed six judges of the Supreme Court, divided the United States into three circuits, two judges to ride each circuit, in which, with the district judge, to form a court. The law fixed the duties and the compensation, and gentlemen of the first character were ready to accept the places. The salaries indeed had been thought high; in some parts of the Union they were thought enormous. But a little time passed before they complained of the hardships of their duties; and the law was altered, not so much for the public good as for their personal convenience. Where two judges were required to hold a court, one was now declared sufficient. Thus you continued their full salaries, while you lopped off half their duties. Shortly after you assigned them, under the pension law, inconsiderable duties; and they refused to perform them. Thus, while they showed themselves ready to abate of their duties, they adhered to their salaries. Next came the law of last session, which takes away all their duties. It leaves them simply a court of appeals. And what have they got to do? To try ten suits; for such is the number now on their docket, as appears from a certificate just put into my hands; and the average number on their docket amounts to from eight to ten. Thus, for the trial of the immense number of eight or ten suits, you have six judges, one with a salary of four thousand, and five others with salaries of three thousand five hundred dollars each.
I fear, said Mr. M., that if you take away from these judges that which they ought officially to do, they will be induced, from the want of employment, to do that which they ought not to do; they may do harm. They may be induced, perhaps, to set about that work gentlemen seem so fond of. They may, as gentlemen have told us, hold the constitution in one hand, and the law in the other, and say to the departments of Government, so far you shall go and no farther. This independence of the Judiciary, so much desired, will, I fear, sir, if encouraged or tolerated, soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently become so strong as to crush and absorb all the others into their solid mass.
We, have been told, that no State in the Union has presumed to touch the Judiciary establishment, except the State of Maryland. I will not answer for others; but, with respect to Virginia, I will answer that she has touched it. Her constitutional provision for the independence of the judges is nearly similar to that of the United States, and yet she has established, modified, and entirely put down particular departments of her system.
Notwithstanding the remarks of gentlemen, I am inclined to think these ideas of the extreme independence of the judges, and the limited powers of the Legislature, are not very old, but that they are of modern origin, and have grown up since the last session of Congress. For, in the law passed last session, that very law which it is now proposed to repeal, is to be found a practical exposition in direct hostility with the principle now contended for, which does not betray that sacred regard for the office of a judge, that is, on this occasion, professed: in that very law will be found a clause which abolishes two district courts. The words of the twenty-fourth section say, expressly, "the district courts of Kentucky and Tennessee shall be and hereby are abolished." Will gentlemen tell this House how this express provision came into the act of the last session; and will they say, that though they voted for this law, yet no power exists in the Legislature to abolish a court? It is true, that it has been said that, though you put down two district courts, you promoted the officers, by increasing their salaries and making them judges of the circuit courts; but the fact is, you have abolished their offices; they are judges no longer of the districts of Kentucky and Tennessee; and they are to every purpose, whatever may be their name, in reality circuit judges. Though you have not lessened their salaries, you have deprived them of their offices. However, therefore, gentlemen may calculate as to the benefit or injury done these two judges, the principle is not affected by any result; their offices are gone. It is not enough to say, that though you destroyed their offices, you offered them others with higher salaries. You took away from them, in express terms, their offices, by abolishing the offices. You had stripped them of their offices, you had robbed them of their vested right, and then, to make friends, offered them a compensation; but whether the compensation thus offered for the deprivation they had suffered, was really equivalent to their loss, is a mere matter of calculation, and does not affect the constitutional principle. It is proper, however, to observe, that they were no parties to the proposed compromise, and that indeed they had no choice left them. They were obliged to accept of what you offered them, or have nothing. If they did not agree to become judges of the newly organized circuit courts, they could not remain judges of the district courts, for these courts were absolutely and completely abolished.
By the seventh section of the law of the last session, which transforms the district into circuit courts, which melts down the judges and recoins them, it is enacted, that there shall be a circuit court, composed of one new circuit judge and two old district judges, to be called the Sixth Circuit. Have you not then established a new office by the destruction of the old one? Have you not done more? Have you not violated the constitution, by declaring, by law, who shall fill this new office, though the constitution declares, article second, section two, "That the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint all officers which shall be established by law."
Where were these guardians of the constitution—these vigilant sentinels of our rights and liberties, when this law passed? Were they asleep on their post? Where was the gentleman from New York, who has, on this debate, made such a noble stand in favor of a violated constitution? Where was the Ajax Telamon of his party, or, to use his own more correct expression, the faction to which he belonged? Where was the hero with his seven-fold shield—not of bull's hide, but of brass—prepared to prevent or to punish this Trojan rape, which he now sees meditated upon the constitution of his country by a wicked faction? Where was Hercules, that he did not crush this den of robbers that broke into the sanctuary of the constitution? Was he forgetful of his duty? Were his nerves unstrung? Or was he the very leader of the band that broke down these constitutional ramparts?
I shall now, sir, trouble you with a few remarks on the expediency of repealing this law. It has been said, that there is nothing peculiarly disgustful in this law; that there has been no public clamor excited against it; that it was enacted with solemnity, on calm and deliberate reflection; and that time has not yet been given to test it by experience.
As no member, who has taken part in debate, was a member of this body when the law passed, I will say something of its history. I am not disposed to excite the sensibility of gentlemen, by any remarks which I shall make, or to call up unpleasant recollections of past scenes. But when I hear it said that this law was passed with calmness, after mature reflection, and that we are now, in a fit of passion, going to undo what was thus wisely done, I think it necessary that the public should have a correct statement.
It is true, that under the last Administration, when there existed (what I trust will never, in an equal degree, exist again,) an immoderate thirst for Executive patronage, a proposition was made to establish a new judiciary system; a system worse than the present; as it proposed, according to my recollection, thirty-eight judges instead of sixteen. This law was very near passing. It was, however, rejected in the House of Representatives by a very small majority. But it was circulated as a project of a law among the people. It was illy received. It was thought too rank a thing, and met with general disapprobation throughout the United States, so far as I have been able to learn. After this reception, it was softened down to the plan introduced at the last session. What temper accompanied the progress of the bill in the other House I know not, or, if I did know, would it be proper for me here to say? But with respect to the acts of this body, I am not of opinion they added any dignity to our common course of procedure. The bill was referred to a committee, who, although it was very long, reported it without any amendment. Various amendments were offered, some of which were admitted to be proper. But they were not received. One, indeed, proposed by a member from Connecticut, who was chairman of the committee, and was then hostile to the plan, did pass in the early stages of the bill, but on the third reading it was expunged. All amendments proposed by the minority were uniformly rejected by a steady, inflexible, and undeviating majority. I confess that I saw no passion, but I certainly did see great pertinacity; something like what the gentleman from Connecticut had termed a holding fast. No amendments were admitted; when offered, we were told, no; you may get them introduced by a rider or supplementary bill, or in any way you please; but down this bill must go; it must be crammed down your throats. This was not the precise phrase, but such was the amount of what was said.
I will say that not an argument was urged in favor of the bill, not a word to show the necessity or propriety of the change. Yet we are told that there was great dignity, great solemnity in its progress and passage!
But there is something undignified in thus hastily repealing this law! in thus yielding ourselves to the fluctuations of public opinion! So we are told!—But if there be blame, on whom does it fall? Not on us, who respected the public opinion when this law was passed, and who still respect it; but on those who, in defiance of public opinion, passed this law, after that public opinion had been decisively expressed. The revolution in public opinion had taken place before the introduction of this project; the people of the United States had determined to commit their affairs to new agents; already had the confidence of the people been transferred from their then rulers into other hands. After this exposition of the national will, and this new deposit of the national confidence, the gentlemen should have left untouched this important and delicate subject—a subject on which the people could not be reconciled to their views, even in the flood-tide of their power and influence; they should have forborne, till agents, better acquainted with the national will, because more recently constituted its organs, had come into the Government. This would have been more dignified than to seize the critical moment when power was passing from them, to pass such a law as this. If there is error, it is our duty to correct it; and the truth was, no law was ever more execrated by the public.
Let it not be said, postpone the repeal till the next session. No—let us restore those gentlemen to private life, who have accepted appointments under this law. This will be doing them greater justice, than by keeping them in office another year, till the professional business, which once attached to them, is gone into other channels.
Mr. Stone, of North Carolina.—Before entering into an examination of the expediency of the repeal, it may be proper to remark, that gentlemen who have spoken against the repeal, whose talents and eloquence I highly admire, have not correctly stated the question. The true question is, not whether we shall deprive the people of the United States of all their courts of justice, but whether we shall restore to them their former courts. Shall we, or shall we not, continue an experiment made, or attempted to be made, I will not say improperly, because my respect for this body and for my country, forbid the imputation; but I will say that the length of time we remained without this system, and the repeated ineffectual attempts made to establish it, present strong reasons for inferring that there are not those great apparent reasons in favor of it, that have been stated. A system somewhat similar to the present had been rejected by the Legislature, because they preferred the former system. Another evidence to the same purport is, that during the last session, when the subject was again revived, and the present plan adopted, an amendment was offered, to amend by extending and enlarging the former establishment.
[Here Mr. S. read the amendment proposed, which augmented the number of judges of the Supreme Court, and assigned their circuits.]
This amendment was rejected, and from the vote entered on the journal of that day, it appears that the difference of votes against the amendment was formed of those gentlemen who were nominated to appointments made vacant by the promotions under the new law. I do not state this circumstance as an evidence that these gentlemen were influenced by improper motives; but to show that the manner in which the new system was formed, was not calculated to establish, in the public mind, a decided preference of it over the old system. Having made these remarks on the great deliberation said to have been manifested in the adoption of this plan, I hope I may be permitted to express my perfect coincidence with the gentleman from Connecticut, that courts are necessary for the administration of justice, and that, without them, our laws would be a dead letter.
But it appears to me essential to the due administration of justice, that those who preside in our courts should be well acquainted with the laws which are to guide their decisions. And, I apprehend, that no way is so much calculated to impart this knowledge, as a practical acquaintance with them, by attending courts in the several States, and hearing gentlemen who are particularly acquainted with them, explain and discuss them. It is, therefore, absolutely necessary, in my mind, that the Judges of the Supreme Court, whose power controls all the other tribunals, and on whose decisions rest the property, the reputation, the liberty, and the lives of our citizens, should, by riding the circuit, render themselves practically acquainted with their duties. It is well known, that the knowledge of the laws of a State, is not to be suddenly acquired, and it is reasonable to conclude, that that knowledge is most correctly possessed by men whose whole lives have been devoted to the acquisition. It is also perfectly well known, that the knowledge of the modes and principles of practice in the different States, or of any State, is most effectually to be acquired in courts, where gentlemen of skill and experience apply those principles to use upon existing points.
This defect, then, of the present plan, is, in my opinion, so radical, that, of itself, it would decide, with me, the question of expediency.
To what source, then, shall we resort for a knowledge of what constitutes this thing, called misbehavior in office? The constitution, surely, did not intend that a circumstance so important as the tenure by which the judges hold their offices, should be incapable of being ascertained. Their misbehavior, certainly, is not an impeachable offence; still it is the ground upon which the judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under, and according to the constitution. I take it, therefore, to be a thing undeniable, that there resides somewhere in the Government, a power to declare what shall amount to misbehavior in office, by the judges, and to remove them from office for the same, without impeachment. The constitution does not prohibit their removal by the Legislature, who have the power to make all laws necessary and proper for carrying into execution the powers vested by the constitution in the Government of the United States. But, says the gentleman from New York, the judges are officers instituted by the constitution, to save the people from their greatest enemies, themselves; and therefore, they should be entirely independent of, and beyond the control of the Legislature. If such was the design of the wise men who framed and adopted the constitution, can it be presumed they would have provided so ineffectual a barrier, as these judges can readily be shown to be? It is allowed, on all hands, the Legislature may modify the courts; they may add judges, they may fix the times at which the courts shall sit, &c. Suppose the Legislature to have interests distinct from the people, and the judges to stand in the way of executing any favorite measure—can any thing be more easy than for the Legislature to declare that the courts, instead of being held semi-annually, or oftener, shall be held only once in six, eight, ten, or twenty years? Or, in order to free themselves from the opposition of the present Supreme Court, to declare, that court shall hereafter be held by thirteen judges. An understanding between the President and the Senate, would make it practicable to fill the new offices with men of different views and opinions from those now in office. And what, in either case, would become of this boasted protection of the people against themselves? I cannot conceive the constitution intended so feeble a barrier; a barrier so easily evaded.
It is not alone the sixteen rank and file, which the gentleman from New York has so ludicrously depicted, that I apprehend immediate danger from, but it is the principle which converts the office of judge into a hospital of incurables, and declares, that an expiring faction, after having lost the public confidence, may add to those sixteen, until they become sixteen hundred or sixteen thousand; and that the restored good sense of the Legislature, the whole Government and constitution, retains no means of casting them off, but by destroying itself, and resorting to revolutionary principles. The Legislature may repeal unnecessary taxes, may disband useless and expensive armies, may declare they will no longer be bound by the stipulations of an oppressive treaty; and if war should follow, the constitution is still safe. But if the construction which gentlemen contend for, be correct, a band of drones, to any amount in number, under the denomination of judges, may prey upon the substance of the people, and the Government retains not the power to remove them but by destroying the constitution itself.