Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 2 (of 16)

by United States. Congress

"Wise and virtuous men have thought and reasoned very differently respecting Government; but in this they have at length very unanimously agreed, viz: "that its powers should be divided into three distinct independent departments, the Executive, Legislative, and Judicial. But how to constitute and balance them so as best to guard against abuse and fluctuation, and preserve the constitution from encroachments, are points on which there continues to be a great diversity of opinions, and on which we all have as yet much to learn. The Constitution of the United States has therefore instituted these departments, and much pains have been taken so to form and define them, as that they may operate as checks one upon the other, and keep each within its proper limits: it being universally agreed to be of the last importance to a free people, that those who are vested with Legislative, Executive, and Judicial powers should rest satisfied with their respective portions of power; and neither encroach on the provinces of each other, nor suffer themselves or the others to intermeddle with the rights reserved by the constitution to the people.""

If, then, there can be no doubt of its propriety when applied to a Judge, in ordinary cases, how much more forcibly does it apply to an Envoy who concludes a treaty, which when ratified is to become the supreme law of the land; how strongly must the negotiation of so important and in many instances so difficult a business, be impressed on his mind! He will no doubt retain the journals of his proceedings and opinions, and perfectly recollect the progress and termination of every proposal which was compromised or rejected. It must be difficult for him to forget the attempts to which ministers are sometimes liable in condescending where their object is honorable; he will remember what his opinions were upon particular points; and, whether they were successful or not, his general character may be that of not very easily yielding them. In short, it is impossible for him to be that cool and unbiased interpreter of the treaty which he otherwise might have been, had he not been concerned in concluding it.

The constitution contemplates an independent Judiciary. The public, therefore, will expect and have a right to demand, upon a questions, a fair and impartial trial by Judges, whose minds are open to conviction, and unprejudiced by party opinions; by men who have not been concerned in forming a law or treaty, but who are totally unfettered by the recollection of what passed at the negotiation, or what might have been wished or expected by either party, as judges, candidly and impartially to determine upon every question that may come before them.

These reasons are certainly sufficient to convince any one that this provision is necessary to the independence of the Judges, and the pure and unbiased exposition of the laws: that unless it is done, their independence is a visionary and unfounded thing. That if the President can hold out to the Judges the temptation of being Envoys, or of giving them other offices, and that he still can continue them as Judges, that on any question in which the President or his friends, or the Government may be concerned, it might have a tendency to influence them in opinion; that it was not frequently to be expected they would be unmindful from whom they received the present appointments, or so entirely indifferent to their own, or the advancement of their families as not sometimes to recollect that from the same source other and greater emoluments might in future be derived; that ingratitude was not often the vice of public officers while their patron continued in power; that on subjects where his character, his feelings, or the public opinion of his acts were in question, our Judges might reasonably be expected not to be charged with apathy or inattention; and that the true way to assert the dignity of the President and the honor and independence of the Judges, was to place it out of the power of the one to offer, and the other to accept additional favors.

That a Judge ought never to be absent from the United States, or be drawn from his official situation and leave an undue proportion of its duties to be performed by the remainder of the bench; that the number of Judges were exactly proportioned to the duties they were to perform; that to withdraw one and be incapable of supplying the vacancy, was not only to require the inexecution of the laws in some parts of the Union, but to invidiously harass the other, while a favorite or possibly too complying a Judge was sent to gratify his curiosity or indulge his taste on some agreeable or easy mission.

That no man ought to hold two offices under the same Government, particularly where they were important; that most of the States had regulations to prevent this, and that nothing more contributed to the extravagance of a Government or the corruption and immorality of its citizens, than the power to heap many lucrative and perhaps useless offices on the same person; that it had a tendency to make them servile, to render them the tools and sycophants of men in power, and to degrade the character of office.

That in case of the impeachment of the President of the United States, the Chief Justice was to preside, and there was no provision in the constitution to supply the vacancy; therefore, if an impeachment was to take place in his absence, it must remain undecided until the Chief Justice could be sent for; that this, if recollected by the Executive, should of itself have been an insuperable objection—in point of propriety, it always is so, but in point of delicacy it ought most strongly to have been so, because, here the President, is the officer, and indeed the only one, who is implicated in the possibility of its inconvenience arising from absence of the Chief Justice. It is true it is to be presumed that the man who is elected by his countrymen to administer the important office of President, will be always so wise and virtuous as to make it very unlikely an impeachment of him should take place—the thing, however, is possible. In times of difficulty where opinions run high, and where those opinions are strongly divided between numerous and powerful parties, it is impossible to foretell what may happen. No man is said to be wise at all times, and our own experience and intercourse with the world must convince us that there are moments of enthusiasm, or of heat, or surprise, when the most cautious men are not quite so prudent as others. I will therefore ask, and do it with great deference, as the President is the only officer on whose trial the Chief Justice is to preside, or on whose impeachment his absence would be a public inconvenience, is it not perhaps presuming too far on his own infallibility or incapacity to err, to send the only officer to a distant country, without whose presence, in case of an impeachment, a court could not be formed to try him? I ask it with deference, and am sure these observations must have escaped the Executive, or the Chief Justice never would have been sent.

To evince the absolute necessity of some provision being made, it is to be observed that, as the law stands now, a Judge might not only accept any other appointment from the Executive of the Union, but he may accept them from the individual States, or, what is still more dangerous, from a foreign power, and thus become the minion of the one or the tool of the other, as circumstances or his own interest may prompt him. Few men will deny the necessity of some provision here, and that the present is an unwise and degrading situation for a national Judiciary. Most of the States have carefully guarded their tribunals against a danger of this kind. The State of South Carolina, to which I belong, is remarkably express on this subject. Aware of the necessity of an independent judiciary, her constitution, in speaking of that department, has these words: "nor shall the Judges, hold any other office of profit or trust under this State, the United States, or any other power," a prohibition not more complete or full than ought to exist in the case of the Federal Judges.

A strange doctrine has lately been circulated, which it is my duty to remark on—it is, that this bill is to be considered as a reflection on the President for nominating a Chief Justice, and the Senate for having confirmed it, and that the Senate, by agreeing to it, will join in the censure.[46] Being always ready to approve, and to praise what is meritorious, it is with great reluctance I can ever be brought to censure—I have no such intention at present. I can readily believe that many of the inconveniences I have mentioned may have escaped the President in the recent nomination. It is here I have always disliked it. I believe the general sentiment to be against it; but, be that as it may, no such reason ought ever to have weight in this House. If the thing is right, if it is now considered as proper for us to say, that the Judges must stay at home, and be confined to their judicial duties, and hold no other offices while Judges, we should do it, and not consider whether it is pleasing or otherwise to the President; he must understand public business too well to consider it in the nature of a reflection. We every day alter existing laws and regulations, without considering such changes as reflections on a preceding Legislature or President, and I should be sorry to suppose, that, while a bill was under discussion, the fear of displeasing the Executive should ever be used as a reason for its rejection. He has always a right to give his opinion in the exercise of his revisionary authority, and when he does, we will deliberately and respectfully attend to it. One remark more, and I shall no longer trespass on the patience of the House: it is, that a reason has been given for leaving the President at liberty to send a Judge on any delicate or difficult mission, which I do not conceive reputable either to the political or literary character of our country—it is said the Judges may be the most able and qualified men the President can find, and that being prevented from sending one of them, he may sometimes be obliged to send inferior and less important characters, and that the public interest might suffer. How far the present or any former supreme bench may justify the observation it is not for us to say, but never will I suppose that among a people so numerous and enlightened, so alive to their country's welfare, and hundreds, perhaps thousands of whom are so devoted to public business, can only six men be found capable of discharging any political duties that Government might require; the idea is too degrading to our national character to be entertained for a moment. For these reasons I have thought it my duty to introduce this bill, and I trust it will pass and become a law.