"If the Constitution shall declare that when the court is abolished, he shall still hold" his office, "there is no inconsistency in the declaration.... What creates the office?" An election to it by the Legislature and a commission by the Governor. "When these acts have been performed, the Judges are in office. Now, if the Constitution shall say that his office shall continue, and he shall perform Judicial duties, though his court may be abolished, does he, because of any modification that may be made in that court, cease to be a Judge?...
"The question constantly recurs—do you mean that the Judges shall be removable at the will of the Legislature? The gentleman talks of responsibility. Responsibility to what? to the will of the Legislature? can there be no responsibility, unless your Judges shall be removable at pleasure? will nothing short of this satisfy gentlemen? Then, indeed, there is an end to independence. The tenure during good behaviour, is a mere imposition on the public belief—a sound that is kept to the ear—and nothing else. The consequences must present themselves to every mind. There can be no member of this body who does not feel them.
"If your Judges are to be removable at the will of the Legislature, all that you look for from fidelity, from knowledge, from capacity, is gone and gone forever." Seldom did Marshall show more feeling than when pressing this point; he could not "sit down," he said, without "noticing the morality" of giving the Legislature power to remove judges from office. "Gentlemen talk of sinecures, and privileged orders—with a view, as it would seem, to cast odium on those who are in office.
"You seduce a lawyer from his practice, by which he is earning a comfortable independence, by promising him a certain support for life, unless he shall be guilty of misconduct in his office. And after thus seducing him, when his independence is gone, and the means of supporting his family relinquished, you will suffer him to be displaced and turned loose on the world with the odious brand of sinecure-pensioner—privileged order—put upon him, as a lazy drone who seeks to live upon the labour of others. This is the course you are asked to pursue."
The provisions of the Judiciary Article before the convention secure ample responsibility. "If not, they can be made [to do] so. But is it not new doctrine to declare, that the Legislature by merely changing the name of a court or the place of its meeting, may remove any Judge from his office? The question to be decided is, and it is one to which we must come, whether the Judges shall be permanent in their office, or shall be dependent altogether upon the breath of the Legislature."[1347]
Giles answered on the instant. In doing so, he began by a tribute to Marshall's "standing and personal excellence" which were so great "that he was willing to throw himself into the background, as to any weight to be attached to his [Giles's] own opinion." Therefore, he would "rely exclusively on the merits" of the controversy. Marshall had not shown "that it was not an anomaly to have the court out of being, and an office pertain[ing] to the court in being.... It was an anomaly in terms."
Giles "had, however, such high respect" for Marshall's standing, "that he always doubted his own opinion when put in opposition" to that of the Chief Justice. He had not intended, he avowed, "to throw reproach upon the Judges in office." Far be it from him to reflect "in the least degree on their honour and integrity." His point was that, by Marshall's plan, "responsibility was rather avoided than sought to be secured." Giles was willing to risk his liberty thus far—"if a Judge became odious to the people, let him be removed from office."[1348]
The debate continued upon another amendment by Thompson. Viewing the contest as a sheer struggle of minds, the conservatives were superior to the reformers,[1349] and steadily they gained votes.[1350]
Again Marshall spoke, this time crossing swords with Benjamin W. S. Cabell and James Madison, over a motion of the former that judges whose courts were abolished, and to whom the Legislature assigned no new duties, should not receive salaries: "There were upwards of one hundred Inferior Courts in Virginia.... No gentleman could look at the dockets of these courts, and possibly think" that the judges would ever have no business to transact.
Cabell's amendment "stated an impossible case," said Marshall,—a "case where there should be no controversies between man and man, and no crimes committed against society. It stated a case that could not happen—and would the convention encounter the real hazard of putting almost every Judge in the Commonwealth in the power of the Legislature, for the sake of providing for an impossible case?"[1351] But in spite of Marshall's opposition, Cabell's amendment was adopted by a vote of 59 to 36.[1352] Two weeks later, however, the convention reversed itself by two curious and contradictory votes.[1353] So in the end Marshall won.