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FEBRUARY, 1809.]
Judiciary System.

[H. OF R which creates the offices they fill, the irresis- be destroyed. Have you taxes which have been tible consequence is, that whatever law is passed | laid since the commeneement of the Governthe judges must carry into execution, or they ment? And is the irritation consequent upon will be turned out of office. It is of little im- the laying of taxes worn off? Are they paid portance to the people of this country whether exclusively by the wealthy and the luxurious Congress sit in judgment upon their laws them- part of the community? And are they pledged selves, or whether they sit in judgment upon for the payment of the public debt? They must those who are appointed for that purpose. It be abolished. Have you a Mint establishment, amounts to the same despotism; they in fact which is not only essentially necessary to projudge the extent and obligations of their own tect the country against the influx of base forstatutes by having those in their power who are eign metals, but is a splendid attribute of soverplaced on the sacred seat of justice. Whatever eignty? It must be abolished. Have you laws the Legislature declares to be law must be which require foreigners coming to your country obeyed. The constitutional check which the to go through a probationary state, by which judges were to be on the Legislature is com- their habits, their morals, and propensities may pletely done away. They may pass ex post be known, before they are admitted to all the facto laws, bills of attainder, suspend the writ rights of native Americans ? They must be reof habeas corpus in time of peace, and the judge pealed, and our shores crowded with the outwho dares to question their authority is to be casts of society, lest oppressed humanity then hurled from his seat. All the ramparts which should find no asylum on this globe! the constitution has erected around the liberties of the people, are prostrated at one blow by the

THURSDAY, February 18. passage of this law. The monstrous and un

A message was received from the PRESIDENT heard of doctrine which has been lately ad

OF THE UNITED STATES, transmitting a letter from vanced, that the judges have not the right of declaring unconstitutional laws void, will be put

the Secretary of War on the subject of certain

lands in the neighborhood of our military posts, into practice by the adoption of this measure. New offences may be created by law. Associa

on which it might be expedient for the Legisla

ture to make some provisions. A letter was tions and combinations may be declared treason,

also received from the Governor of Indiana, and the affrighted and appalled citizen may in

on the same subject. The said Message and vain seek refuge in the independence of your courts. In vain may he hold out the constitu

| letter were read, and ordered to lie on the

table. tion and deny the authority of Congress to pass a law of such undefined signification, and call

The Judiciary Bill. upon the judges to protect him; he will be told | The House again resolved itself into a Comthat the opinion of Congress now is, that we mittee of the whole House on the bill sent from have no right to judge of their authority; this the Senate, entitled “An act to repeal certain will be the consequence of concentrating Judi-acts respecting the organization of the Courts cial and Legislative power in the same hands. of the United States and for other purposes." It is the very definition of tyranny, and wher- Mr. STANLEY.—Mr. Chairman, every measure ever you find it, the people are slaves, whether which is brought under the consideration of a Lethey call their Government a Monarchy, Repub-gislature must first be tested by its expediency. lic, or Democracy.

Unhappily, in the present instance, another quesMr. Chairman, I see, or think I see, in this at- tion arises—its constitutionality. I will endeav. tempt, that spirit of innovation which bas prog- or, concisely, to examine the subject on both those trated before it a great part of the old world- points. And, first, as to the expediency of the every institution which the wisdom and ex- measure. In order to form a correct estimate beperience of ages had reared up for the benefit of tween the present Judiciary system of the courts man. A spirit which has rode in the whirlwind of the United States and that for which it was and directed the storm, to the destruction of the substituted, it is proper to take a comparative fairest portion of Europe; which has swept be- view of both. fore it every vestige of law, religion, morality, Under the former system, there were six and rational government; which has brought judges of the Supreme Court of the United twenty millions of people at the feet of one, and States, who held two sessions of the Supreme compelled them to seek refuge from their com- Court in each year, at the seat of Government. plicated miseries in the calm of despotism. It Those judges also held in each State a circuit is against the influence of this tremendous spirit court, two terms in each year, in which the that I wish to raise my voice, and exert my judge of the district was associated with the powers, weak and feeble as they are. I fear, circuit judge. The organization of the district sir, on the seventh of December, it made its courts having jurisdiction, principally, of matappearance within these walls, clothed in a ters affecting the revenue and admiralty causes, gigantic body, impatient for action. I fear it not being connected with the present question, has already begun to exert its all-devouring en- need not be examined. From the errors of this ergy. Have you a judiciary system extending system resulted, first, a delay of justice. The over this immense country, matured by the judges bound to hold courts in succession at rewisdom of your ablest and best men? It must I mote parts of the continent, were continually

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Judiciary System.

[FEBRUARY, 18 travelling; from the variety of accidents to the circuit judges, under the former system which travellers are subjected in this country, secure their due attendance; a portion of their from the condition of roads and overflowing of time is left them to study and reflection, and the rivers, it frequently happened that the judges same persons presiding at successive terik, I failed in their attempts to get to the courts, or uniformity of decision is preserved. The six for arrived so late that little business was done. mer judges hold the Supreme Court, with origSuitors, jurors, and witnesses, were subjected to nal constitutional jurisdiction in matters of the the trouble and expense of attending courts utmost national importance, and appellate jaris without the accomplishment of their business ; | diction, in certain cases, where the sun in hence resulted a delay of justice. In the State dispute is two thousand dollars; they are sle to which I belong, during the few years exist-the court in which the errors of the circui ence of the former system, this was the case court are examined and corrected. frequently.

It is objected against the act proposed to be Another great evil resulting from that system repealed, that a dangerous patronage is created was, its tendency to lessen the character and re- by it for the President. I shall pass over what spectability of the Federal bench. Those best I consider an inconsistency in this objection conacquainted with the profession of the law willing from gentlemen who profess that implicit most readily admit, that even a life of patient confidence is due to the man chosen by the past study is unequal to the complete attainment of ple, who, in his appointments, speaks not le principles and rules; and that much labor and the voice of the people than the voice of God, industry are necessary to preserve that which is and examine the weight of the objection. I gained. Consequently, that extent of legal this apprehended patronage means the power of knowledge, correctness of judgment, and re-appointing the Judiciary, that power is gire spectability of character, which should designate by the constitution, and is the same, whether the persons qualified for this important trust the power of the Judiciary be vested in six or in were seldom to be found, but in men far ad- sixteen judges. If it fear an undue control over vanced in years. Men possessing these qualifi. the people in favor of the Executive, through the cations, not inured to labor, are seldom equal to Judiciary, make the judges as independent ss the fatigue of their duty; or, if at the time of we contend they are and ought to be, and they appointment, fast approaching to the infirmities are placed beyond the necessity of descending to of age, were not to be expected to relinquish the practice of improper means to preserve Ese the enjoyments of private life for an office, I cutive favor. which, however honorable, subjected them to We have been told, sir, that it is necessary the fatigue of a day laborer. The office, with the judges should ride into the States to gain s its incumbrances, was, as it were, offered to the knowledge of the laws by which, in many cases, lowest bidder, And men best qualified to honor they are to decide. Until this occasion I have the bench, were driven from it. True it is, never heard that the laws of a conntry could men have been found eminently uniting virtue only be acquired in the atmosphere of that and talents, who have accepted the office under country where they are in force. Nine-tenths all its distressing circumstances, but we owe of the decisions in our State courts and Federal this rather to their patriotism than to the ad courts turn on questions of common law; yet, vantages of the situation. Let it also be re has it ever been suggested that an American judge membered that, in some instances, gentlemen was incompetent to decide on common law who would have adorned the seat of justice of questions, because he had not studied in Engany country, were compelled to relinquish their land ? No, sir, the knowledge in both cases seats; and in others, refused to accept the ap- may be acquired in the closet. To these obserpointment.

vations permit me to add, that the remonAnother error of that system was, that the strances from the bar of Philadelphia, composed judges of the Supreme Court, the court in the of gentlemen no less celebrated for the respeclast resort, before whom the errors of the in- tability of their private than of their professional ferior circuit courts were to be corrected, were character, who, on this occasion, so interesting the same men who presided in those circuit to the welfare of their country, have sacrificed courts. With great deference for the opinions of their political prejudices, strongly expressing gentlemen who prefer that system, I pronounce their decided preference of the present system to my opinion, that its errors were radical; that the former, is, to my mind, conclusive, that it those who justly estimated the importance to ought to be preferred. I am, therefore, of opinour interest and national character, of a speedy ion, that it is inexpedient to pass the present reand correct administration of justice, ought to pealing bill; and so long as my opinion is suphave desired a change. The present system has ported by the respectable authority I have just happily obviated these errors. The States are alluded to, and opposed only by the objections divided into six circuits ; in each State is ap- which I have noticed, I shall feel satisfied that pointed one judge, called a circuit judge; the opinion is correct. judges of the States, composing one circuit, ride! In approaching the second question which I together into the States of their circuit, and to proposed to examine-the constitutionality of gether hold the court. The much smaller dis- the measure—whether I reflect on the mag. tance which those judges have to travel than nitude of the question on the one hand, or my

FEBRUARY, 1802.]
Judiciary System

[H. OF RO inability on the other, I am, indeed, humblod. First, then, that the Judiciary are a check on before the undertaking.

the Legislature. In the constitution, we find Without examining whether Government, ac certain powers delegated to Congress; we also cording to the modern opinion, should be found find they are prohibited from exercising certain ed on the reason and sense of justice of man, powers; among which are, they shall pass no it is certain our Government is calculated to ex post facto law, no bill of attainder, no law guard against his woakness and his wickedness. respecting religion, &c. Should, unhappily, a Our Government has been particularly cautious Legislature be found who, from weakness or on this subject; it has left nothing to the hazard wickedness, or the union of both, should transof reason or sense of justice; it has carefully gress the bounds prescribed, what is the security delegated powers to three distinct departments, of the citizen? After all the experience derived and separated these departments by boundaries from the example of other Governments, after plainly marked and formed, each so as not to all the deliberation and wisdom of our sages control, at least to check, the other. The Legis- who framed the constitution, are we left, in this lative powers, though vested in men chosen important instance, as under the despotism of a frequently and by the people themselves in one monarch, to seek redress through the throes and branch, and by the immediate agents of the convulsions of a revolution ? No, sir. The Jupeople in the other, are nevertheless the object diciary are our security. The Legislature may of suspicion and caution. Their powers, far enact penalties, and denounce punishments from resting on their discretion or sense of ex- | against those who do not yield obedience to pediency, are expressly and cautiously limited. | their unconstitutional acts; their penalties canThe Executive conditional veto forms one check not be exacted, nor punishments inflicted, withon the Legislature; the Judiciary, I shall con- out the judgment of a court. The judges tend, are a check on both. Here, permit me to are to expound the law, and that fundamental, Bay, that from the spirit and the words of our paramount law, the constitution. To this purconstitution, I infer that the Judiciary are a co- pose they are sworn to support the constitution. ordinate department with the Executive and While the Judiciary firmly, independently, and Legislative. The framers of our constitution, | uprigbtly, discharge their duty and declare the satisfied that the powers of well-organized act of the Legislature contrary to the constituGovernments ought to be divided into three tion, to be void, the Legislature are checked, branches Legislative, Executive, and Judicial and the citizenshielded from oppression and -have nowhere expressly declared there shall persecution. But, ask gentlemen, whence do be such departments, but, after premising the the courts derive this power, and the honorobjects of the Government, proceed to ordain able gentleman from Virginia (Mr. THOMPSON) how the Legislature shall be composed; and says, we are contending for this common law article two, section two, declares, “The power doctrine, that the courts are a check on the Leshall be vested in a President of the United gislature. If I misunderstood the gentleman, I States of America; he shall hold his office dur-trust he will correct me. Sir, that gentleman, ing the term of four years," and prescribes the I am willing to presume, knows, what I assure mode of election. Article three, section one, him no gentleman with whom on this occasion also declares, “The Judicial power of the United I act, is ignorant of, that this is not a common States shall be vested in one Supreme Court and law doctrine; that in England their courts have in such inferior courts as the Congress may no check on the Legislature—their Parliament from time to time ordain and establish," and the are emphatically styled omnipotent, and if they judges of the supreme and inferior courts shall violate the few natural rights that remain to hold, &c., during good behavior. By compar the citizens, they have no remedy but in a reing these sections of the constitution, it appears sort to revolutionary principles; it was the the Judiciary and the Executive are expressly want of this check to the oppressions of their created by the constitution, and nothing is left rulers, which has produced civil wars, and driven to the discretion of Congress, as to the existence one monarch from his kingdom, and sent anof these departments; they are created by the other to the scaffold. This power exists in no same words; and if the Legislature claim a other Government, because under no other right to put down the Judiciary at pleasure, be- Government does there exist a Legislature with fore the happening of that event till which the limited powers; under our Government it is constitution secures their offices-their misbe- the very essence, the constitution of a court, havior-they may as well assume the right to the oath enjoined on them to support the conremove the President before the happening of stitution. The exercise and the admission of that event till which his office is secured, to wit, this right are not new in America; instances the expiration of four years. I shall attempt to must be in the recollection of every gentleman. establish as a first principle, that the Judiciary I will cite a few most prominent: The honorable are a check on the Legislature, and thence to member (Mr. THOMPSON) has been pleased to show first, that, by the spirit of our constitution, call the attention of the committee to the examthe Judiciary ought to be independent, beyond ples drawn from his State; I beg leave to profit the control or influence of either of the other from the same source. In 1787, the Legislature departments of power; and secondly, that, by the of that State passed an act making new arrangewords of the constitution, they are so secured. ments in the jurisdiction of the courts. The

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[FEBRUARY, 1802 judges, among whom was that venerable gentle-, that they are thereby a check on the Legislatore man mentioned by the member from that State, I shall infer that, by the spirit of our constite whose merits and worth command the sincere tivn, they ought to be independent of the other homage of my respects, protested against this branches of Government, but partienlarly sod act, and refused to carry it into effect; the Legis- the Legislature. The concentrating the branche lature acquiesced, and the law was repealed. of power either Executive and Legislative, a

Upon the imposition of the carriage tax by Legislative and Judiciary, in the same hands, is Congress, a citizen of Virginia refused to pay the the very essence of tyranny; in proportion tax, on the ground that it was unconstitutionally we advance towards the union of those powers laid. He was sued for the penalty in the circuit in the same proportion do we recede from court of that State, from whence, by writ of liberty. Are these departments separate, error, the suit came before the Supreme Court; connected—if the Legislature by any means in this case the defendant relied solely on the procure their will either directly or indirectls, unconstitutionality of the act of Congress, and to be substituted for or to overrule judicial jade on this ground was defended by the attorney ment? Whether the Legislature expound and general of the State of Virginia, and the attor - adjudge their acts themselves, or submit theo ney general of the State of Pennsylvania. At to the exposition and judgment of a judiciary this time, then, it appears that these learned subservient to them, is essentially the same. If gentlemen, the judges, and the citizens, thought the Legislature exercise the power of remors the court competent to relieve in ause the law from office by the direct means of a vote of te was judged to be unconstitutional. In 1792, moval, or by the indirect means, the legislative Congress passed an act imposing certain duties legerdemain of a repeah. g act, is precisely the respecting invalid pensioners, upon the judges of same thing, the judges are no longer indepe the circuit court. The judges, at the first court dent, but dependent on the Legislatore for their after this act, protested against it; their protests offices, and subject to their control; & conse were transmitted to the President of the United quence entirely repugnant to the spirit of our States that President, who had presided in the constitution. I shall attempt to show, that by General Convention which framed the constitu- the words of our constitution, the judges are tion, and, therefore, as likely to understand the placed beyond Legislative control. Article three, powers of Congress on the Judiciary as any other section one: “The judges, both of the supreme man, so far sanctioned their opinions as to trans- and inferior courts, shall hold their offices durmit them to the next Congress, where the acting good behavior, and sball, at stated times was reconsidered and repealed. I beg leave, receive for their services a compensation which also, to allude to the authority before mentioned shall not be diminished during their continuance by my friend from Pennsylvania, (Mr. HEMP- in office." Until the contemplation of the HILL,) which I should think of some weight present measure, I incline to believe, it never here. It is the opinion of a gentleman, venera- entered the mind of any man acquainted with ble for his age, respectable for legal knowledge, this clause of the constitution, that judges should and distinguished for what, in the fashionable be removed otherwise than by impeachment for language of the day, are termed republican misdemeanor. The advocates for this Legislative principles. I mean the Executive of Pennsyl-power contend that the tenure of “good behavania; that gentleman, in assigning to the Legis- vior" in this article of the constitution is intended lature of his State his reasons for not approving to restrict Executive and not Legislative power. an act they had laid before him, after expressing It does not appear probable that an express te his doubts of the constitutionality of the act, striction should be introduced against a power declares, “he cannot, from a confidence in the which is nowhere expressly granted; for genlegal knowledge, integrity, and fortitude of his tlemen know that the Executive power of reformer brethren in the Supreme Court, risk his moval from office is a' power admitted from character in a judicial decision on this question, construction, and not founded on any thing when he does not see any advantage to be de- drawn from the constitution. I say this rather, rived to his country from a possibility of suc- because, by the constitntion, the aid of the Sencess.” If any words can make more plain the ate is necessary to appoint, and a fortiori opinion here conveyed, it is that he considers should be necessary to remove. It is important the judges have the power and will exercise it, to ascertain what was the intention of the framto declare the act unconstitutional

ers of the constitution in introducing the words To my mind, these considerations are satisfac- “ good behavior." The most correct source in tory, that, from the very constitution of our our power from which this aid may be derived, courts, from the practice and admission of our is the writings and opinions at that day of those State courts and State Legislatures, and Federal who aided in the great work. Among those courts, and Federal Legislature, that the judges publications which were written for the purpose of the United States, sitting in court, have the of explaining and recommending this constitapower, and by oath are bound to pronounce, tion, the most celebrated are those pieces over that, an act contrary to the constitution, is the signature of “Publius," written by the pens void. From the establishment of this proposi- of gentlemen of leading influence in the Contion, that the judges are the expounders of the vention, and whose talents and patriotism are constitution, and the laws made under it, and I still honored by the nation. In that part of this

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EBRUARY, 1802.)
Judiciary System.

(H. OF R. work which treats of the tenure of the office of are all expressly restricted; that the same article udge during “good behavior," I find this which fixes the tenure of “good behavior," strong expression:

expressly and undoubtedly guards against the « The standard of good behavior for the continuance power of the Representatives of the people, the in office of the judicial magistracy is certainly one of friends of the people, by securing the salaries the most valuable of the modern improvements in the of the judges undiminished during their conpractice of Government. In a monarchy, it is an ex- tinuance in office. cellent barrier to the despotism of the prince. In a Mr. GILES said that he felt some degree of republic, it is a no less excellent barrier to the en- apprehension, that, in the course he deemed it croachments and oppressions of the representative necessary to take in the discussion of this quesbody.”

tion, some observations might fall from him This, sir, to my mind, is conclusive, that the which might not be in strict harmony with the convention intended this tenure as a restriction feelings of some gentlemen of the committee. no less on Legislative than on Executive power, He should regret, however, if a compliance with and that, in this sense of the phrase, the people a sense of duty should produce that effect. He of America received this part of the consti- said, therefore, that he wished to apprise gentletution. In ascertaining the import of the men that he intended to direct his observations words “during good behavior," it is certainly as much as possible to the effects and tendencies important to inquire the end to which they have of measures; and that when he was constrained been used in other similar cases. My colleague to speak of the views of gentlemen, it would be (Mr. HENDERSON) has, with much abler talents, with respect to what he conceived to be their shown that, in most of the State constitutions, opinions in relation to the general interests, and which existed before our Federal constitution, not to private gratifications. He said it was these words are used to fix the tenure of offices natural that men should differ in the choice of where the Executive have neither express nor means to produce a given end, and more natural constructive power of removal; consequently, that they should differ in the choice of political they are in those constitutions restrictive of the means than any other; because the subject Legislative power. If, then, the framers of our presented more complicated and variable obconstitution borrowed this tenure from these jects, out of which to make a choice. AccordState coustitutions, it is fair and reasonable to ingly, a great portion of the human mind has conclude they used them in the sense in which been at all times directed towards monarchy, they were previously received. But, says my as the best form of government to enforce colleague on the other side of the House, (Mr. obedience and ensure the general happiness; ROBERT WILLIAMS,) the judges in England whereas another portion of the human mind hold their offices by the tenure of “good beha- has given a preference to the republican form, vior," and yet are removable on an address as best calculated to produce the same end; from both Houses of Parliament, and he infers and there is no reason for applying improper that the terms may have been taken from Eng- motives to individuals who should give a preferland. To this I will first observe, that no fair ence to either of the principles, provided in argument can be drawn from the existence of doing so they follow the honest dictates of their this Legislative power there, for the exercise own judgments. It must be obvious to the here. The mode of appointment there may most common observer, that, from the comrender such control over the Executive neces- mencement of the Government of the United sary, which, from the provisions of our consti- | States, and perhaps before it, a difference of tution, are not wanted here. In England, the opinion existed among the citizens, having King has the sole power of appointment—the more or less reference to these two extreme people have no previous check. In this coun- fundamental points, and that it manifested itself try, the Executive appointment is checked by in the modification or administration of the the requisite sanction of the Senate. But is Government as soon as it was put in operation. this Legislative power in Great Britain usurped On one side, it was contended, that in the orby construction ? No, if the gentleman will ganization of the constitution a due apportionread again the statute of 13 William III., he ment of authority had not been made among will find that this power of removal is expressly the several departments; that the Legislature granted by the Crown to Parliament. If, then, was too powerful for the Executive Department; one convention had this statute before them, in and to create and preserve a proper equipoise, adopting that part which relates to the tenure it was necessary to infuse into the Executive of office, and omitting that part which gives Department, by legislation, all artificial powers the power of removal, it is not to be presumed compatible with the constitution, upon which they intended so important a power should de- the most diffusive construction was given ; or, pend on construction. The same gentleman in other words, to place in Executive hands all (Mr. ROBERT WILLIAMS) also contended that it the patronage it was possible to create, for the could not be presumed the convention intended purpose of protecting the President against the to restrict the power of the Representatives of full force of his constitutional responsibility to the people, the friends of the people. What the people. On the other side, it was contended, will the gentleman say of the correctness of his that the doctrine of patronage was repugnant opinion, when I remind him that our powers to the opinions and feelings of the people; that

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