"Your salaries do not allow any of your Judges to lay up for his old age: the longer he remains in office, the more dependant he becomes upon his office. He wishes to retain it; if he did not wish to retain it, he would not have accepted it. And will you make me believe that if the manner of his decision may affect the tenure of that office, the man himself will not be affected by that consideration?... The whole good which may grow out of this Convention, be it what it may, will never compensate for the evil of changing the tenure of the Judicial office."
Barbour had said that to presume that the Legislature would oust judges because of unpopular decisions, was to make an unthinkable imputation. But "for what do you make a Constitution?" countered Marshall. Why provide that "no bill of attainder, or an ex post facto law, shall be passed? What a calumny is here upon the Legislature," he sarcastically exclaimed. "Do you believe, that the Legislature will pass a bill of attainder, or an ex post facto law? Do you believe, that they will pass a law impairing the obligation of contracts? If not, why provide against it?...
"You declare, that the Legislature shall not take private property for the public use, without just compensation. Do you believe, that the Legislature will put forth their grasp upon private property, without compensation? Certainly I do not. There is as little reason to believe they will do such an act as this, as there is to believe, that a Legislature will offend against a Judge who has given a decision against some favourite opinion and favourite measure of theirs, or against a popular individual who has almost led the Legislature by his talents and influence.
"I am persuaded, there is at least as much danger that they will lay hold on such an individual, as that they will condemn a man to death for doing that which, when he committed it, was no crime. The gentleman says, it is impossible the Legislature should ever think of doing such a thing. Why then expunge the prohibition?... This Convention can do nothing that would entail a more serious evil upon Virginia, than to destroy the tenure by which her Judges hold their offices."[1339]
An hour later, the Chief Justice again addressed the convention on the independence of the Judiciary. Tazewell had spoken much in the vein of the Republicans of 1802.[1340] "The independence of all those who try causes between man and man, and between a man and his Government," answered Marshall, "can be maintained only by the tenure of their office. Is not their independence preserved under the present system? None can doubt it. Such an idea was never heard of in Virginia, as to remove a Judge from office." Suppose the courts at the mercy of the Legislature? "What would then be the condition of the court, should the Legislature prosecute a man, with an earnest wish to convict him?... If they may be removed at pleasure, will any lawyer of distinction come upon your bench?
"No, Sir. I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary. Will you draw down this curse upon Virginia? Our ancestors thought so: we thought so till very lately; and I trust the vote of this day will shew that we think so still."[1341]
Seldom in any parliamentary body has an appeal been so fruitful of votes. Marshall's idea of the inviolability of judicial tenure was sustained by a vote of 56 to 29, Madison voting with him.[1342]
Lucas P. Thompson of Amherst County moved to strike out the provision in Marshall's Judiciary Article that the abolition of a court should not "deprive any Judge thereof of his office."[1343] Thus the direct question, so fiercely debated in Congress twenty-seven years earlier,[1344] was brought before the convention. It was promptly decided, and against the views and action of Jefferson and the Republicans of 1802. By a majority of 8 out of a total of 96,[1345] the convention sustained the old Federalist idea that judges should continue to hold their positions and receive their salaries, even though their offices were abolished.
Before the vote was taken, however, a sharp debate occurred between Marshall and Giles. To keep judges in office, although that office be destroyed, "was nothing less than to establish a privileged corps in a free community," said Giles. Marshall had said "that a Judge ought to be responsible only to God and to his own conscience." Although "one of the first objects in view, in calling this Convention, was to make the Judges responsible—not nominally, but really responsible," Marshall actually proposed to establish "a privileged order of men." Another part of Marshall's plan, said Giles, required the concurrent vote of both Houses of the Legislature to remove a judge from the bench. "This was inserted, for what?" To prevent the Legislature from removing a judge "whenever his conduct had been such, that he became unpopular and odious to the people"—the very power the Legislature ought to have.[1346]
In reply, Marshall said that he would not, at that time, discuss the removal of judges by the Legislature, but would confine himself "directly to the object before him," as to whether the abolition of a court should not deprive the judge of his office. Giles had fallen into a strange confusion—he had treated "the office of a Judge, and the Court in which he sat, as being ... indissolubly united." But, asked Marshall, were the words "office and Court synonymes"? By no means. The proposed Judiciary Article makes the distinction when it declares that though the court be abolished, the judge still holds his office. "In what does the office of a Judge consist? ... in his constitutional capacity to receive Judicial power, and to perform Judicial Duties....