Assuming that the latter view was correct, Giles gave his reasons for holding that the new Judiciary should be abolished; and the subject led him into a history of the circumstances under which the Act passed, at the moment when the House of Representatives was in permanent session, “in the highest paroxysm of party rage,” disputing over the choice between Jefferson and Burr as President. He charged that members of the legislature who voted for the law “were appointed to offices, not indeed created by the law, the Constitution having wisely guarded against an effect of that sort, but to judicial offices previously created by the removal, or what was called the promotion, of judges from the offices they then held to the offices newly created, and supplying their places by members of the legislature who voted for the creation of the new offices.” He showed that the business of the courts “is now very much declined, and probably will decline still more.”
“Under the view of the subject thus presented, he considered the late courts as useless and unnecessary, and the expense therefore was to him highly objectionable. He did not consider it in the nature of a compensation, for there was no equivalent rendition of service. He could not help considering it as a tribute for past services; as a tribute for the zeal displayed by these gentlemen in supporting principles which the people had denounced.”
Such arguments, if good for the new circuit courts, were still stronger in their application to the Supreme Court itself. Giles affirmed that the “principles advanced in opposition ... go to the establishment of a permanent corporation of individuals invested with ultimate censorial and controlling power over all the departments of the government, over legislation, execution, and decision, and irresponsible to the people.” He believed that these principles were “in direct hostility with the great principle of representative government.” Undoubtedly these principles, if they existed anywhere, were strongest, not in the circuit, but in the Supreme Court; and if any judge was to be set aside because his appointment might be considered as a reward for zeal displayed in supporting “principles which the people had denounced,” Chief-Justice Marshall, the person most likely to exercise “ultimate censorial and controlling power over all the departments of government,” was peculiarly subject to suspicion and removal. To no man had the last President been more indebted, and to no one had he been more grateful.
Only incidentally, at the close of his speech, Giles advanced a final, and in his mind fatal, objection to the new courts, “because of their tendency to produce a gradual demolition of State Courts.” Of all arguments this seemed to be the most legitimate, for it depended least on the imputation of evil motives to the Congress which passed the Act. No one need be supposed criminal for wishing, as was often admitted, to bring justice to every man’s door; and as little need any one be blamed for wishing to maintain or to elevate the character of his State Judiciary. Parties might honestly and wisely differ, and local interests might widely diverge in a matter so much depending upon circumstances; but no argument seemed to satisfy Giles unless it carried an implication of criminality against his opponents.
Giles’s speech was such as an orator would select to answer, and James Asheton Bayard could fairly claim the right to call himself an orator. Born in Philadelphia, in 1767, Bayard was five years younger than Giles, and had followed the opposite path in politics. Without being an extreme Federalist, he had been since 1796 a distinguished member of the Federalist party in Congress, and had greatly contributed to moderate the extravagances of his friends. In the style of personality which Giles affected, Bayard was easily a master. Virulence against virulence, aristocracy had always the advantage over democracy; for the aristocratic orator united distinct styles of acrimony, and the style of social superiority was the most galling. Giles affected democratic humility to the last, and partly for that reason never became a master even of invective; while John Randolph, finding the attitude of a democrat unsuited for his rhetoric, abandoned it, and seemed to lose his mental balance in the intoxication of his recovered social superiority. Giles’s charges, by an opposite illusion, seemed to crawl; his contempt resembled fear; his democratic virtues crouched before the aristocratic insolence they reproved. Bayard appeared to carry with him the sympathy of all that was noble in human character when, taking the floor as Giles sat down, he turned on the Virginian with a dignity of retort which, whatever might be its value as argument, cut the deeper because its justice could not be denied.
Jefferson’s administration was not yet a year old; the Federalists had twelve long years abounding in mistakes and misfortunes to defend, and Giles’s arraignment embraced the whole. Bayard accepted the challenge, and his speech, too historical for compression, varied between long periods of defence and brief intervals of attack. The defence belonged to past history; the attack concerned the actual moment, and need alone be noticed here. He began by refusing belief that Giles ever seriously felt the fear of monarchy he expressed; he was led by other motives:—
“I pray to God I may be mistaken in the opinions I entertain as to the designs of gentlemen to whom I am opposed. Those designs I believe hostile to the powers of this government. State pride extinguishes a national sentiment. Whatever power is taken from this government is given to the States. The ruins of this government aggrandize the States. There are States which are too proud to be controlled, whose sense of greatness and resource renders them indifferent to our protection, and induces a belief that if no general government existed, their influence would be more extensive and their importance more conspicuous. There are gentlemen who make no secret of an extreme point of depression to which the government is to be sunk. To that point we are rapidly progressing.”
The charge was certainly emphatic, and deserved as clear an answer from Giles as Bayard gave to the charge of monarchical tendencies. On the constitutional point involved in the Bill before the House, Bayard was equally distinct:—
“The point on which I rely is that you can do no act which impairs the independence of a judge. When gentlemen assert that the office may be vacated notwithstanding the incumbency of a judge, do they consider that they beg the very point which is in controversy? The office cannot be vacated without violating the express provision of the Constitution in relation to the tenure.... The second plain, unequivocal provision on this subject is that the compensation of the judge shall not be diminished during the term he continues in office. This provision is directly levelled at the power of the legislature: they alone could reduce the salary. Could this provision have any other design than to place the judge out of the power of Congress? You cannot reduce a part of the compensation, but you may extinguish the whole. What is the sum of this notable reasoning? You cannot remove the judge from the office, but you may take the office from the judge; you cannot take the compensation from the judge, but you may separate the judge from the compensation. If your Constitution cannot resist reasoning like this, then indeed is it waste paper.”
When Bayard reached Giles’s favorite doctrine that patronage was a Federalist system, and the charge that two senators who voted for the Judiciary Act of 1801 were rewarded by the offices vacated in consequence of promotions to circuit judgeships, he produced a true oratorical sensation by a retort that sank deep into the public memory:—