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sion. In this increase of numbers, with a still greater increase of wealth, with the extension of our commerce and the progress of the arts, it was evident that although a great many tribunals would become necessary, it was impossible to determine either on the precise number or the most convenient form. The convention did not pretend to this prescience; but, had they possessed it, would it have been proper to have established then all the tribunals necessary for all future times? Would it have been wise to have planted courts among the Chickasaws, the Chocktaws, the Cherokees, the Tuscaroras, and God knows how many more, because at some future day the regions over which they roam might be cultivated by polished men? Was it not proper, wise, necessary, to leave in the discretion of congress, the number and the kind of courts which they might find it proper to estab. lish for the purpose designated by the constitution.This simple statement of facts, facts of public notoriety, is alone a sufficient comment on, and explication of the words on which gentlemen have so much relied. The convention in framing, the people in adopting this compact, say the judicial power shall extend to many cases, the original cognizance whereof shall be by the inferior courts; but it is neither necessary, nor even possible,
to determine their number or their form: that essential power therefore, shall vest in such inferior courts as the congress may from time to time, in the progression of time, and according to the indication of circumstances, establish. Not provide, ordain, or determine, but establish. Not a mere temporary provision, but an establishment. If after this it had said in general terms, that judges should hold their offices during good behaviour, could a doubt have existed on the interpretation of this act, under all its attending circumstances, that the judges of the inferior courts were intended, as well as those of the su
preme court? But did the framers of the constitution stop there? Is there then nothing more? Did they risk on these grammatical niceties the fate of America? Did they rest here the most important branch of our government? Little important indeed, as to foreign danger; but infinitely valuable to our domestic peace and to personal protection against the oppression of our rulers. No. Lest a doubt should be raised, they have carefully connected the judges of both courts in the same sentence; they have said “the judges both of the supreme and inferior courts," thus coupling them inseparably together. You may cut the bands but you can never untie them. With salutary eaution they devised this clause, to arrest the overbearing temper which they knew belonged to legislative bodies. They do not say the judges simply, but the judges of the supreme and inferior courts shall hold their offices during good behaviour. They say therefore to the legislature, you may judge of the propriety, the utility, the necessity of organizing these courts; but when established you have done your duty. Anticipating the course of passion in future times they say to the legislature, you shall not disgrace yourselves by exhibiting the indecent spectacle of judges established by one legislature removed by another. We will save you also from yourselves. We say these judges shall hold their offices: and surely, sir, to pretend that they can hold their office after the office is destroyed, is contemptible.
The framers of this constitution had seen much, read much, and deeply reflected. They knew by experience the violence of popular bodies; and let it be remembered that since that day many of the states, taught by experience, have found it necessary to change their forms of government, to avoid the effects of that violence. The convention contemplated the very act you now attempt. They knew also the jealousy and the power of the states; VOL. II.
and they established for your and for their protection, this most important department. I beg gentlemen to hear and to remember what I say. It is this department alone, and it is the independence alone of this department, which can save you from civil war. Yes, sir, adopt the language of gentlemen, say with them, by the act to which you are urged, "if we cannot remove the judges we can destroy them.” Establish thus the dependence of the judiciary department. Who will resort to them for protection against you? Who will confide in, who will be bound by their decrees? Are we then to resort to the ultimate reason of kings? Are our arguments to fly from the mouths of our cannon?
We are told that we may violate our constitution, because similar constitutions have been violated elsewhere. Two states have been cited to that effect, Maryland and Virginia. The honourable gentleman from Virginia tells us that when this happened in the state he belongs to, no complaint was made by the judges. I will not enquire what constitutions have been violated. I will not ask either when or where this dangerous practice began, or has been followed. I will admit the fact. What does it prove? Does it prove that because they have violated, we also may
violate? Does it not prove directly the contrary? Is it not the strongest reason on earth for preserving the independence of our tribunals? If it be true that they have with strong hand seized their courts, and bent them to their will, ought we not to give suitors a fair chance for justice in our courts, or must the suffering citizen be deprived of all protection?
The gentleman from Virginia has called our attention to certain cases which he considers as forming necessary exceptions to the principles for which we contend. Permit me to say that necessity is a bad law, and frequently
proves too much; and let the gentleman recollect that ar.' guments which prove too much prove nothing.
He has instanced a case where it may be proper to appoint commissioners for a limited time to settle some particular description of controversies. Undoubtedly it is always in the power of congress to form a board of com. missioners for particular purposes. He asks, are these inferior courts, and must they also exist forever? I answer that the nature of their offices must depend on the law by which they are created; if called to exercise the judicial functions designated by the constitution, they must have existence conformable to its injunctions.
Again, he has instanced the Mississippi territory, claimed by, and which may be surrendered to the state of Georgia, and a part of the union which may be conquered by a foreign enemy. And he asks triumphantly, are our inferior courts to remain after our jurisdiction is gone? This case rests upon a principle so simple, that I am surprised the honourable member did not perceive the answer in the very moment when he made the objection. Is it by our act that a country is taken from us by a foreign enemy? Is it by our consent that our jurisdiction is lost? I had the honour, in speaking the other day, expressly and for the most obvious reasons, to except the case of conquest. As well might we contend for the government of a town swallowed up by an earthquake.
General Mason exclaimed-He had supposed the case of territory conquered and afterwards ceded to the conqueror, or some other territory ceded in lieu of it.
Mr. Morris— The case is precisely the same. Until after the peace the conquest is not complete. Every body knows that until the cession by treaty, the original owner has the postliminary right to a territory taken from him. Beyond all question, where congress are compelled to cede the territory, the judges can no longer exist, unless
the new sovereign confers the office. Over such a territory the authority of the constitution ceases, and of course the rights which it confers.
It is said the judicial institution is intended for the benefit of the people, and not of the judge; and it is complained of, that in speaking of the office, we say it is his office. Undoubtedly the institution is for the benefit of the people. But the question remains, how will it be rendered most beneficial? Is it by making the judge independent, by making it his office; or is it by placing him in a state of abject dependence, so that the office shall be his to-day and belong to another to-morrow? Let the gentleman hear the words of the constitution; it speaks of their offices, consequently as applied to a single judge, of his office, to be exercised by him for the benefit of the people of America, to which exercise his independence is as necessary as his office.
The gentleman from Virginia has on this occasion likened the judge to a bridge, and to various other objects; but, I hope for his pardon, if, while I admire the lofty Aights of his eloquence, I abstain from noticing observations which I conceive to be utterly irrelevant.
The same honourable member has not only given us his history of the supreme court, but has told us the manner in which they do business, and expressed, his fears that having little else to do, they will do mischief. We are not competent, sir, to examine, nor ought we to prejudge their conduct. I am persuaded that they will do their duty, and presume they will have the decency to believe that we do our duty. In so far as they may be busied with the great mischief of checking the legislature or executive departments, in any wanton invasion of our rights, I shall rejoice in that mischief. I hope indeed they will not be 60 busied, because I hope we shall give them no cause. But also, I hope they will keep an eagle eye