Mr. Marshall, of Kentucky, was of opinion that if the subject itself was a proper one to be inquired into, then the mode was well devised, and one liable to few or no objections; but there was another circumstance to which he begged permission to call the attention of the Senate. He observed that the resolution pointed only to one object, and that was the publications in the Aurora; he did not think this went far enough, if it was intended to be any thing more than a party manœuvre. If gentlemen meant to defend the honor of this body, they should avoid any thing like partiality, and direct their inquiry to all breaches of privilege, by publications in newspapers, let their publishers be whom they might. Believing that the gentlemen were serious in the present undertaking, he wished them to give it the appearance of impartiality without which it would reflect disgrace on their proceedings. Gentlemen have complained of the slander and calumny thrown upon them by the publications in the Aurora, but, however detestable they might be, he held in his hand one still more vile and flagrant. He would read it, and then move to amend the resolution before the House by adding that the committee be directed to inquire who is the editor of the United States Gazette, and by what authority he published in that paper the following paragraphs.
It passed in the negative—yeas 11, nays 16, as follows:
Yeas.—Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Lloyd, Marshall, Mason, Nicholas, and Pinckney.
Nays.—Messrs. Bingham, Chipman, Dayton, Foster, Greene, Gunn, Hillhouse, Laurance, Livermore, Paine, Read, Ross, Schureman, Tracy, Watson, and Wells.
The Judiciary.
Agreeably to notice given yesterday, Mr. Pinckney had leave to bring in a bill to amend the act entitled "An act to establish the Judicial Courts of the United States"; which was read and ordered to the second reading.
On introducing the above bill Mr. Pinckney addressed the chair as follows:
Mr. President: When I first had the honor of addressing you on this subject it appeared to me necessary to move an amendment to the constitution; on reflection, however, I am since convinced that the more regular and expeditious mode would be to move an amendment to the law establishing the Judicial Courts of the United States—by this means the law may be passed during the present session, and we shall the more readily obtain the limitation we contend for.
As the Judiciary is among the most important departments in our Government, as it reaches every situation in society—neither the rich, the honored, nor the humble, being without its influence or above its control—as it is the department to which not only the lives and fortunes, but the characters of our citizens are peculiarly intrusted, it becomes us to be extremely careful that the Judges should not only be able and honest men, but independent in their situation. Our constitution has in some degree secured their independence by giving them permanent salaries, and rendering them ineligible to the Legislature; but in vain will we consider them independent, in vain may we suppose their opinion beyond the control or interference of the Executive, until we have determined it shall not be in his power to give them additional offices and emoluments, while Judges; until, in short, we confine them wholly to their duties as Judges, and teach them to believe that in the execution of the laws they should consider themselves as little obliged to please the President, or to fear his disapprobation, as that of any other man in the Government. This can only be done by preventing them accepting other offices, while they continue as Judges, and thus depriving him of the power of heaping upon them additional favors and emoluments.
It is an established maxim, and I hope will for ever remain so, that the Legislature and Judiciary should be as distinct as the nature of our Government will admit; that is, that the same men shall not, in a deliberative capacity, agree to measures which they shall afterwards have a right to explain and decide upon in a judicial one. The reason is obvious; that the Judges should, in a calm and unprejudiced manner, explain what the law literally is, and not what it ought to be; that they should not be allowed to carry upon the bench those passions and prejudices which too frequently prevail in the adoption and formation of legislative acts and treaties, and which never fail to give an irresistible bias to the opinions of a Judge who has been concerned in making them. The truth of this reasoning is now so generally conceded, that there is not a man who knows any thing of government that will attempt to controvert it; the constitutions of all the States have sanctioned it, and if the opinions of the Federal Convention ought to have weight, they so strongly insisted upon it as even to refuse, after repeated trials, associating the Judges with the President in the exercise of his revisionary power; indeed a gentleman high in office, and who held both situations at the same time as Judge and Envoy, is himself decidedly of this opinion, for in his charge to the Eastern juries he has these expressions: