Mr. Bacon said the true question was on the constitutionality of the repealing law. One Congress had passed a law constituting certain courts, which at the last session had been repealed. Now of what do courts consist? Of judges, who are officers of the court. The question is, whether by abolishing the courts, these officers are abolished. He supposed they were. He considered the terms as synonymous. Now the question is whether, if the offices are abolished, those who filled them before they were abolished are entitled to salaries? That is the only question that remains undetermined. What does the constitution say? Admitting the offices abolished, it says: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."
Does it not follow that if they continue in office they are entitled to a salary for the services they perform. If they do not continue in office they are entitled to nothing, and the constitution has no reference to them. This is the true question.
Mr. Smilie would ask whether the Supreme Court in such a case as this could be denominated an impartial tribunal? He asked if they had not seen the time when, during the disputes between the clergy and laity, no wise man, not of the clerical order, would have trusted himself in the hands of the clergy? The same remark applied to the military, and also, with equal force, to the Judges of the Supreme Court. He really, however, thought that the judges would not receive the salaries, even if they were offered to them, as it would be contrary to every idea of patriotism. He, therefore, considered the application as a mere matter of form.
Mr. Nicholson.—The resolution contemplated giving the power to try the right of the judges to their claims; but the great object in reality was to authorize the judges of the Supreme Court to decide upon the constitutionality of the repealing act. Let this object, then, be avowed; let it be so declared openly, and not introduced in this incidental manner. From the remarks made last year by gentlemen on the other side of the House, it was a little surprising that this application should be made, for it was then strenuously contended that the Supreme Court had the right to decide upon the constitutionality of all laws. Why, then, ask for it? If they have this right we need not confer it; if they have it not, we cannot give it them. If the petitioning judges can bring their case before the Supreme Court, let them do so; my consent shall never authorize it. If the Supreme Court shall arrogate this power to themselves, and declare our law to be unconstitutional, it will then behoove us to act. Our duty is defined.
Mr. Eustis said when the office of judge was abolished all his duties ceased. The salary allowed was a compensation for services. Now when there were no services to be performed, what salary could there be allowed, or what retribution demanded? on what did this claim rest? On the opinion of the judges. But by the decision of the last winter their offices were abolished; it followed, therefore, of consequence, that their salaries ceased too. This was a plain and simple question. He considered the memorial as the protest of the judges against this decision. As such, he was willing that it should rest on the files of the House, and instead of being offended at this treatment the judges ought to be thankful.
Mr. Dana said the ideas of the gentleman from Massachusetts were in one respect correct. The memorial of the judges was a protest against the law passed by Congress. It was proper they should make it, so far as they confined themselves to language not indecorous or disrespectful. He would admit likewise that the question of powers decided the question of salary; others however entertained a different opinion. Why object then, in a case where there was a difference of opinion, to refer the decision to an impartial tribunal? The only question is whether in a contest for power, you, the Legislature, will claim the exclusive exercise of power, and whether, even if you shall exceed the constitutional limits, you will assert the entire right of saying so, or whether you will refer it to a tribunal which shall be an umpire between those who hold different opinions?
Mr. Alston said the resolution required amendment. As it now stood, it would appear that all the late judges of the circuit court claimed a compensation for services not rendered. He believed this was not the case. There were some of those judges who had made no such request. He, therefore, moved to insert the name of those who had presented memorials; also to insert the word "late" before the word "judges."
Carried without a division.
The resolution as amended stood thus: