I pray to God I may be mistaken in the opinion 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. But I would beg gentlemen to remember that human affairs are not to be arrested in their course, at artificial points. The impulse now given may be accelerated by causes at present out of view. And when those, who now design well, wish to stop, they may find their powers unable to resist the torrent. It is not true, that we ever wished to give a dangerous strength to executive power. While the government was in our hands, it was our duty to maintain its constitutional balance, by preserving the energies of each branch. There never was an attempt to vary the relation of its powers. The struggle was to maintain the constitutional powers of the executive. The wild principles of French liberty were scattered through the country. We had our Jacobins and disorganizes. They saw no difference between a king and a president, and as the people of France had put down their King, they thought the people of America ought to put down their President. They, who considered the constitution as securing all the principles of rational and practicable liberty, who were unwilling to embark upon the tempestuous sea of revolution in pursuit of visionary schemes, were denounced as monarchists. A line was drawn between the government and the people, and the friends of the government were marked as the enemies of the people. I hope, however, that the government and the people are now the same; and I pray to God, that what has been frequently remarked, may not, in this case, be discovered to be true that they, who have the name of the people the most often in their mouths, have their true interests the most seldom at their hearts.
The honorable gentleman from Virginia wandered to the very confines of the federal administration, in search of materials the most inflammable and most capable of kindling the passions of his party. …
I did suppose, sir, that this business was at an end; and I did imagine, that as gentlemen had accomplished their object, they would have been satisfied. But as the subject is again renewed, we must be allowed to justify our conduct. I know not what the gentleman calls an expression of the public will. There were two candidates for the office of President, who were presented to the House of Representatives with equal suffrages. The constitution gave us the right and made it our duty to elect that one of the two whom we thought preferable. A public man is to notice the public will as constitutionally expressed. The gentleman from Virginia, and many others, may have had their preference; but that preference of the public will not appear by its constitutional expression. Sir, I am not certain that either of those candidates had a majority of the country in his favor. Excluding the State of South Carolina, the country was equally divided. We know that parties in that State were nearly equally balanced, and the claims of both the candidates were supported by no other scrutiny into the public will than our official return of votes. Those votes are very imperfect evidence of the true will of a majority of the nation. They resulted from political intrigue and artificial arrangement.
When we look at the votes, we must suppose that every man in Virginia voted the same way. These votes are received as a correct expression of the public will. And yet we know that if the votes of that State were apportioned according to the several voices of the people, that at least seven out of twenty-one would have been opposed to the successful candidate. It was the suppression of the will of one-third of Virginia, which enables gentlemen now to say that the present chief magistrate is the man of the people. I consider that as the public will, which is expressed by constitutional organs. To that will I bow and submit. The public will, thus manifested, gave to the House of Representatives the choice of the two men for President. Neither of them was the man whom I wished to make President; but my election was confined by the constitution to one of the two, and I gave my vote to the one whom I thought was the greater and better man. That vote I repeated, and in that vote I should have persisted, had I not been driven from it by imperious necessity. The prospect ceased of the vote being effectual, and the alternative only remained of taking one man for President, or having no President at all. I chose, as I then thought, the lesser evil.
From the scene in this House, the gentleman carried us to one in the Senate. I should blush, sir, for the honor of the country, could I suppose that the law, designed to be repealed, owed its support in that body to the motives which have been indicated. The charge designed to be conveyed, not only deeply implicates the integrity of individuals of the Senate, but of the person who was then the chief magistrate. The gentleman, going beyond all precedent, has mentioned the names of members of that body, to whom commissions issued for offices not created by the bill before them, but which that bill, by the promotions it afforded, was likely to render vacant. He has considered the scandal of the transaction as aggravated by the issuing of commissions for offices not actually vacant, upon the bare presumption that they would become vacant by the incumbents accepting commissions for higher offices which were issued in their favor. The gentleman has particularly dwelt upon the indecent appearance of the business, from two commissions being held by different persons at the same time for the same office.
I beg that it will be understood that I mean to give no opinion as to the regularity of granting a commission for a judicial office, upon the probability of a vacancy before it is actually vacant; but I shall be allowed to say that so much doubt attends the point, that an innocent mistake might be made on the subject. I believe, sir, it has been the practice to consider the acceptance of an office as relating to the date of the commission. The officer is allowed his salary from that date, upon the principle that the commission is a grant of the office, and the title commences with the date of the grant. This principle is certainly liable to abuse, but where there was a suspicion of abuse I presume the government would depart from it. Admitting the office to pass by the commission, and the acceptance to relate to its date, it then does not appear very incorrect, in the case of a commission for the office of a circuit judge, granted to a district judge, as the acceptance of the commission for the former office relates to the date of the commission, to consider the latter office as vacant from the same time. The offices are incompatible. You cannot suppose the same person in both offices at the same time. From the moment, therefore, that you consider the office of circuit judge as filled by a person who holds the commission of district judge, you must consider the office of district judge as vacated. The grant is contingent. If the contingency happen, the office vests from the date of the commission; if the contingency does not happen, the grant is void. If this reasoning be sound, it was not irregular, in the late administration, after granting a commission to a district judge, for the place of a circuit judge, to make a grant of the office of the district judge, upon the contingency of his accepting the office of circuit judge.
The legislative power of the government is not absolute, but limited. If it be doubtful whether the legislature can do what the constitution does not explicitly authorize, yet there can be no question, that they cannot do what the constitution expressly prohibits. To maintain, therefore, the constitution, the judges are a check upon the legislature. The doctrine, I know, is denied, and it is, therefore, incumbent upon me to show that it is sound. It was once thought by gentlemen, who now deny the principle, that the safety of the citizen and of the States rested upon the power of the judges to declare an unconstitutional law void. How vain is a paper restriction if it confers neither power nor right. Of what importance is it to say, Congress are prohibited from doing certain acts, if no legitimate authority exists in the country to decide whether an act done is a prohibited act? Do gentlemen perceive the consequences which would follow from establishing the principle, that Congress have the exclusive right to decide upon their own powers? This principle admitted, does any constitution remain? Does not the power of the legislature become absolute and omnipotent? Can you talk to them of transgressing their powers, when no one has a right to judge of those powers but themselves? They do what is not authorized, they do what is inhibited, nay, at every step, they trample the constitution under foot; yet their acts are lawful and binding, and it is treason to resist them. How ill, sir, do the doctrines and professions of these gentlemen agree. They tell us they are friendly to the existence of the States; that they are the friends of federative, but the enemies of a consolidated general government, and yet, sir, to accomplish a paltry object, they are willing to settle a principle which, beyond all doubt, would eventually plant a consolidated government, with unlimited power, upon the ruins of the State governments.
Nothing can be more absurd than to contend that there is a practical restraint upon a political body, who are answerable to none but themselves for the violation of the restraint, and who can derive, from the very act of violation, undeniable justification of their conduct.
If, Mr. Chairman, you mean to have a constitution, you must discover a power to which the acknowledged right is attached of pronouncing the invalidity of the acts of the legislature, which contravened the instrument.