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transient, yet it had been protracted wherever the institutions of the country had excited any kind of veneration for its judicature. At Athens in particular, and indeed throughout Greece, the liberties of the people were for a season preserved by the respect felt towards the august court of Areopagus. Notwithstanding the aspiring ambi. tion of some of the states, the intrigues of powerful demagogues, and the general degeneracy of manners, yet as long as this venerable judicature was respected, Greece continued free. As soon as it lost its influence, the people lost their liberties. Taught by these examples the value of a good judiciary, the patriots who met at Philadelphia, determined to establish one which should be independent of the executive and legislature, and possess the power of deciding rightfully and finally on conflicting claims between them. The convention laid their hand on this invaluable and protecting principle; in it they discovered what was essential to the security and duration of free states; what would prove the shield and palladium of our liberties; and they boldly said, notwithstanding the discouragement in other countries, and in times past, to efforts in favour of republicanism, our experiment shall not miscarry, for we will establish an independent judiciary; we will create an asylum to secure the government, and protect the people, in all the revolutions of opinion, and struggles of ambition and faction. They did establish an independent judiciary. There is nothing, I think, more demonstrable than that the convention meant the judiciary to be a co-ordinate and not a subordinate branch of the government. This is my settled opinion; but on a subject so momentous as this is, I am unwilling to be directed by the feeble lights of my own understanding; and as my judgment, at all times very fallible, is liable to err much where my anxieties are much excited, I have had recourse to other sources for the true meaning

of this constitution. During the throes and spasms, as they have been termed, which convulsed this nation, prior to the late Presidential election, strong doubts were very strongly expressed, whether the gentleman, who now administers this government, was attached to it as it is. Shortly after his election, the legislature of Rhode Island presented a congratulatory address, which our chief magistrate considered as soliciting some declaration of his opinions of the federal constitution; and in his answer deeming it fit to give them, he said, “ the constitution shall be administered by me, according to the safe and honest meaning contemplated by the 'plain under. standing of the people at the time of its adoption; a meaning to be found in the explanations of those who advocated, not those who opposed it. These explanations are preserved in the publications of the time.To this high authority I appeal. To the honest meaning of the instru. ment; the plain understanding of its framers. I, like Mr. Jefferson, appeal to the opinions of those who were the friends of the constitution at the time it was submitted to the states. Three of our most distinguished statesmen, who had much agency in framing this constitution, find. ing that objections had been raised against its adoption, and that much of the hostility produced against it had resulted from a misunderstanding of some of its provisions, united in the patriotic work of explaining the true meaning of its framers. They published a series of papers, under the signature of Publius, which were afterwards republished in a book called the Federalist. This cotemporaneous exposition is what Mr. Jefferson must have adverted to, when he speaks of the publications of the time. From this very valuable work, for which we are indebted to Messrs. Hamilton, Madison and King, I will take the liberty of reading some extracts, to which I solicit the attention of the committee. In the seventy

eighth number we read “ good behaviour for the continuance in office of the judicial magistracy, is the most valuable of the modern improvements in the practice of government. In a republic, it is a barrier to the encroachments and oppressions of the representative body. And it is the best expedient that can be devised in any government, to secure a steady, upright, and impartial administration of the laws. The judiciary, in a government where the departments of power are separate from each other, from the nature of its functions, will always be the least dangerous to the political rights of the constitution. It has no influence over the sword or the purse, and may truly be said to have neither force nor will, but merely judgment. The complete independence of the courts of justice is essential in a limited constitution, one containing specified exceptions to the legislative authority; such as that it shall pass no ex post facto law, no bill of attainder, &c. &c. Such limitations can be preserved in practice no other way than through the courts of justice, whose duty it must be to declare all acts manifestly contrary to the constitution, void. Without this, all the reservations of particular rights or privileges, of the states or the people, would amount to nothing. Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the courts designed to be an intermediate body between the people and the legislature, are to keep the latter within the limits assigned to their authority. The convention acted wisely in establishing good behaviour as the tenure of judicial offices. Their plan would have been inexcusably defective had it wanted this important feature of good government.” The authority I have read, proves to demonstration what was the intention of the convention on this subject; that it was to establish a judiciary completely independent of the executive and legislature, and

to have judges removable only by impeachment. This was not only the intention of the general convention, but of the state conventions when they adopted this constitution. Nay, sir, had they not considered the judicial power to be co-ordinate with the other two great departments of government, they never would have adopted the constitution. I feel myself justified in making this declaration, by the debates in the different state conventions. From those of the Virginia convention, I will read some extracts, to show what were the opinions of the speakers there of both political parties. The friends of the constitution insisted that our federal judges would be independent of every thing but their behaviour, and their God. -The opposers of the constitution insisted, that they would not be perfectly independent of the legislature, because they might increase their salaries. Affectionately attached to the sovereign rights of the states and the people, the opposers of the constitution displayed all the suspicion of jealous lovers. They supposed the judges would not be completely independent, and insisted if they were not, there would soon be a concentration of all

power

in the legislature, and a perfect despotism in our country. Hence it appears that both parties thought the judges ought to be beyond the reach of the legislature, except by impeachment. The friends of the constitution insisted they were so; the opposers feared they were not. Let us attend to the debates in the convention of Virginia

General Marshall, the present chief justice, says, the government of the United States go beyond those delegated powers? If they were to make a law, not warranted by any of the powers enumerated, it would be considered as an infringement of the constitution which they are to guard: they would not consider such a law as coming under their jurisdiction: they would declare it void.' Mr. Grayson, who opposed the constitution, we

can

find saying, 'the judges will not be independent, because their salaries may be augmented. This is left open. What if you give 600l. or 10001. annually to a judge? 'Tis but a trifling object, when by that little money you purchase the most invaluable blessing that any country can enjoy. The judges are to defend the constitution.' Mr. Madi. son, in answer, says, “I wished to insert a restraint on the augmentation, as well as diminution of the compensation of the judges—but I was over-ruled; the business of the courts must increase. If there was no power to increase their pay, according to the increase of business, during the life of the judges, it might happen that there would be such an accumulation of business, as would reduce the pay to a most trivial consideration. Here we find Mr. Madison not using the words good behaviour; but he says (what we say was meant by good behaviour) during the life of the judges. The opinions of Mr. Madison I deem conclusive, as to the meaning of the words good behaviour; but I will read what was said by Mr. Nicholas, which is substantially the same. (Here Mr. Rutledge read several extracts from the debates in the Virginia convention.] These quotations show that, in Virginia at least, the public wish and intention was to have an independent judiciary. Let us now see what was the opinion on this subject of the first congress under the constitution, when the first judiciary bill was debated. Mr. Stone

says,

the establishment of the courts is im. mutable.' Mr. Madison says, “the judges are to be removed only on impeachment, and conviction before congress.' Mr. Gerry, who had been a member of the general convention, expresses himself in this strong and unequivocal manner: · The judges will be independent, and no power can remove them; they will be beyond the reach of the other powers of the government; they will be unassailable, and cannot be affected but by the united

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