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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

Judiciary System. [Fmnrm, 1S&

H. or R.]

travelling; from the variety of accidents to which travellers are subjected in this country, from the condition of roads and overflowing of rivers, it frequently happened that the judges failed in their attempts to get to the courts, or arrived so late that little business was done. Suitors, jurors, and witnesses, were subjected to the trouble and expense of attending courts without the accomplishment of their business; hence resulted a delay of justice. In the State to which I belong, during the few years existence of the former system, this was the case frequently.

Another great evil resulting from that system was, its tendency to lessen the character and respectability of the Federal bench. Those best acquainted with the profession of the law will most readily admit, that even a life of patient study is unequal to the complete attainment of principles and rules; and that much labor and industry are necessary to preserve that which is gained. Consequently, that extent of legal knowledge, correctness of judgment, and respectability of character, which should designate the persons qualified for this important trust were seldom to be found, but in men far advanced in years. Men possessing these qualifications, not inured to labor, are seldom equal to the fatigue of cheir duty; or, if at the time of appointment, fast approaching to the infirmities of age, were not to be expected to relinquish the enjoyments of private life for an office, which, however honorable, subjected them to the fatigue of a day laborer. The office, with its incumbrances, was, as it were, offered to the lowest bidder. And men best qualified to honor the bench, were driven from it. True it is, men have been found eminently uniting virtue and talents, who have accepted the office under all its distressing circumstances, but we owe this rather to their patriotism than to the advantages of the situation. Let it also be remembered that, in some instances, gentlemen who would have adorned the seat of justice of any country, were compelled to relinquish their seats; and in others, refused to accept the appointment.

Another error of that system was, that the judges of the Supreme Court, the court in th i last resort, before whom the errors of the inferior circuit courts were to bo corrected, were the same men who presided in those circuit courts. With great deference for the opinions of gentlemen who prefer that system, I pronounce my opinion, that its errors were radical; that those who justly estimated the importance to our interest and national character, of a speedy and correct administration of justice, ought to have desired a change. The present system has happily obviated these errors. The States are divided into six circuits; in each State is appointed one judge, called a circuit judge; the judges of the States, composing one circuit, ride together into the States of their circuit, and together hold the court. The much smaller distance which those judges have to travel than

the circuit judges, under the former svstea. secure their due attendance; a portion of tbar time is left them to study and reflection, and tfes same persona presiding at successive terms. » uniformity of decision is preserved. The -4i former judges hold the Supreme Court, with Cbtenal constitutional jurisdiction in matters of x'm utmost national importance, and appellate jurisdiction, in certain cases, where the sum a dispute is two thousand dollars; they are &1& the court in which the errors of the cirsst court are examined and corrected.

It is objected against the act proposed to he repealed, that a dangerous patronage is crested by it for the President. I shall pass over wis! I consider an inconsistency in this objection aming from gentlemen who profess that impfici confidence is due to the man chosen by the people, who, in his appointments, speaks not lest the voice of the people than the voice of Goi. and examine the weight of the objection. L' this apprehended patronage means the power <d appointing the Judiciary, that power is giva. by the constitution, and is the same, whether the powerof the Judiciary be vested in six or a sixteen judges. If it fear an undue control orer the people in favor of the Executive, through tlx Judiciary, make the judges as independent * we contend they are and ought to be, and thej are placed beyond t he necessity of descending ta the practice of improper means to preserve Executive favor.

We have been told, sir, that it is iiecesarr the judges should ride into the States to gab * knowledge of the laws by which, in many casea, they are to decide. Until this occasion I have never heard thut the laws of a country eooii only be acquired in the atmosphere of ths country where they are in force. Nine-tenths of the decisions in our State courts and Federal courts turn on questions of common law; yet, has it ever been suggested that an American judge was incompetent to decide on common la* questions, because he had not studied in England? No, sir, the knowledge in both cases may be acquired in the closet. To these observations permit me to add, that the remonstrances from the bar of Philadelphia, composed of gentlemen no less celebrated for the respectability of their private than of their professional character, who, on this occasion, so interesting to the welfare of their country, have sacrificed their political prejudices, strongly expressing their decided preference of the present system to the former, is, to my mind, conclusive, that it ought to be preferred. I am, therefore, of opinion, that it is inexpedient to pass the present repealing bill; and so long as my opinion is supported by the respectable authority I have just alluded to, and opposed only by the objections which I have noticed, I shall feel satisfied that opinion is correct.

In approaching the second question which I proposed to examine—the constitutionality oi the measure—whether I reflect on the magnitude of the question on the one haud, 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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judges, among whom was that venerable gentleman mentioned by the member from that State, ■whose merits and worth command the sincere homage of my respects, protested apaiust this act, and refused to carry it into effect; the Legislature acquiesced, and the law was repealed.

Upon the imposition of the carriage tax by Congress, a citizen of Virginia refused to pay the tax, on the ground that it was unconstitutionally laid. He was sued for the penalty in the circuit eourt of that State, from whence, by writ of error, the suit came before the Supreme Court; in this case the defendant relied solely on the unconstitutionality of the act of Congress, and on this ground was defended by the attorney general of the State of Virginia, and the attorney general of the State of Pennsylvania. At this time, then, it appears that these learned gentlemen, the judges, and the citizens, thought the court competent to relieve in -s.«e the law was judged to be unconstitutional. In 1792, Congress passed an act imposing certain duties respecting invalid pensioners, upon the judges of the circuit court. The judges, at the first court after this act, protested against it; their protests were transmitted to the President of the United States—that President, who had presided in the General Convention which framed the constitution, and, therefore, as likely to understand the powers of Congress on the Judiciary as any other man, so far sanctioned their opinions as to transmit them to the next Congress, where the act was reconsidered and repealed. I beg leave, also, to allude to the authority before mentioned by my friend from Pennsylvania, (Mr. HempHill,) which I should think of some weight here. It is the opinion of a gentleman, venerable for his age, respectable for legal knowledge, and distinguished for what, in the fashionable language of the day, are termed republican principles. I mean the Executive of Pennsylvania; that gentleman, in assigning to the Legislature of his State his reasons for not approving an act they had laid before him, after expressing his doubts of the constitutionality of the act, declares, "he cannot, from a confidence in the legal knowledge, integrity, and fortitude of his former brethren in the Supreme Court, risk his character in a judicial decision on this question, when he does not see any advantage to be derived to his country from a possibility of success." If any words can make more plain the opinion here conveyed, it is that he considers the judges have the power and will exercise it, to declare the act unconstitutional.

To my mind, these considerations are satisfactory, that, from the very constitution of our courts, from the practice and admission of our State courts and State Legislatures, and Federal courts, and Federal Legislature, that the judges of the United States, sitting in court, have the power, and by oath are bound to pronounce, that, an act contrary to the constitution, is void. From the establishment of this proposition, that the judges are the expounders of the constitution, and the laws made under it, and

that they are thereby a check on the Legislates. I shall infer that, by the spirit of our coostntion, they ought to be independent of the otfce branches of Government, but particularly so i the Legislature. The concentrating the branete of power either Executive and Legislative,* Legislative and Judiciary, in the same hancYs the very essence of tyranny; in proportion i we advance towards the union of those poweri in the same proportion do we recede frta liberty. Are these departments separate, Bconnected—if the Legislature by any mess procure their will either directly or indirect!;, to be substituted for or to overrule judicial jcdfment? Whether the Legislature expound id adjudge their acts themselves, or submit ties to the exposition and judgment of a judfeBrj subservient to them, is essentially the same. £ the Legislature exercise the power of renwii from office by the direct means of a vote of removal or by the indirect means, the legislate legerdemain of a repeal), g act, is precisely ifc same thing, the judges are no longer indepadent, but dependent on the Legislature for their offices, and subject to their control; a cor* quence entirely repugnant to the spirit of oc constitution. I shall attempt to show, that by the words of our constitution, the judges ate placed beyond Legislative control. Articlethree. section one: "The judges, both of the supra* and inferior courts, shall hold their offices doing good behavior, and shall, at stated nms, receive for their services a compensation whita shall not be diminished during their eontinaaw in office." Until the contemplation of tie present measure, I incline to believe, it never entered the mind of any man acquainted vd this clause of the constitution, that judges shots' be removed otherwise than by impeachment»" misdemeanor. The advocates for this Leei.-iati;e power contend that the tenure of " good behavior" in this article of the constitution isintemW to restrict Executive and not Legislative po«r. It does not appear probable that an express restriction should be introduced against a po«r which is nowhere expressly granted; for gentlemen know that the Executive power of removal from office is a' power admitted froo construction, and not founded on any this? drawn from the constitution. I say this rather, because, by the constitution, the aid of the Senate is necessary to appoint, and a firtun should be necessary to remove. It is import^1 to ascertain what was the intention of thefts^ ers of the constitution in introducing the "good behavior." The most correct sottrce u" our power from which this aid may be derived, is the writings and opinions at that dayofth*8 who aided in the great work. Among those publications which were written for the pun** of explaining and recommending this cons"'0" tion, the most celebrated are those pieces over the signature of " Publius," written by the pas of gentlemen of leading influence in the (.invention, and whose talents and patriotism sre still honored by the nation. In that part of TM»

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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