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Judiciary System.

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laid since the commencement of the Government? And is the irritation consequent upon the laying of taxes worn off? Are they paid exclusively by the wealthy and the luxurious part of the community? And are they pledged for the payment of the public debt? They must be abolished. Have you a Mint establishment, which is not only essentially necessary to protect the country against the influx of base foreign metals, but is a splendid attribute of sovereignty? It must be abolished. Have you laws which require foreigners coming to your country to go through a probationary state, by which their habits, their morals, and propensities may be known, before they are admitted to all the rights of native Americans? They must be repealed, and our shores crowded with the outcasts of society, lest oppressed humanity then should find no asylum on this globe!

which creates the offices they fill, the irresis- | be destroyed. Have you taxes which have been tible consequence is, that whatever law is passed the judges must carry into execution, or they will be turned out of office. It is of little importance to the people of this country whether Congress sit in judgment upon their laws themselves, or whether they sit in judgment upon those who are appointed for that purpose. It amounts to the same despotism; they in fact judge the extent and obligations of their own statutes by having those in their power who are placed on the sacred seat of justice. Whatever the Legislature declares to be law must be obeyed. The constitutional check which the judges were to be on the Legislature is completely done away. They may pass ex post facto laws, bills of attainder, suspend the writ of habeas corpus in time of peace, and the judge who dares to question their authority is to be hurled from his seat. All the ramparts which the constitution has erected around the liberties of the people, are prostrated at one blow by the passage of this law. The monstrous and unheard of doctrine which has been lately advanced, that the judges have not the right of declaring unconstitutional laws void, will be put into practice by the adoption of this measure. New offences may be created by law. Associations and combinations may be declared treason, and the affrighted and appalled citizen may in vain seek refuge in the independence of your courts. In vain may he hold out the constitution and deny the authority of Congress to pass a law of such undefined signification, and call upon the judges to protect him; he will be told that the opinion of Congress now is, that we have no right to judge of their authority; this will be the consequence of concentrating Judicial and Legislative power in the same hands. It is the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their Government a Monarchy, Republic, or Democracy.

THURSDAY, February 18.

A message was received from the PRESIDENT the Secretary of War on the subject of certain of the United STATES, transmitting a letter from lands in the neighborhood of our military posts, on which it might be expedient for the Legislaalso received from the Governor of Indiana, ture to make some provisions. A letter was letter were read, and ordered to lie on the on the same subject. The said Message and

table.

The Judiciary Bill.

The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act to repeal certain acts respecting the organization of the Courts of the United States and for other purposes."

measure. In order to form a correct estimate between the present Judiciary system of the courts of the United States and that for which it was substituted, it is proper to take a comparative view of both.

Mr. STANLEY.-Mr. Chairman, every measure which is brought under the consideration of a Legislature must first be tested by its expediency. 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 has pros-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 experience of ages had reared up for the benefit of man. A spirit which has rode in the whirlwind and directed the storm, to the destruction of the fairest portion of Europe; which has swept before it every vestige of law, religion, morality, and rational government; which has brought twenty millions of people at the feet of one, and compelled them to seek refuge from their complicated miseries in the calm of despotism. It is against the influence of this tremendous spirit that I wish to raise my voice, and exert my powers, weak and feeble as they are. I fear, sir, on the seventh of December, it made its appearance within these walls, clothed in a gigantic body, impatient for action. I fear it has already begun to exert its all-devouring energy. Have you a judiciary system extending over this immense country, matured by the wisdom of your ablest and best men? It must

Under the former system, there were six judges of the Supreme Court of the United States, who held two sessions of the Supreme Court in each year, at the seat of Government. Those judges also held in each State a circuit court, two terms in each year, in which the judge of the district was associated with the circuit judge. The organization of the district courts having jurisdiction, principally, of matters affecting the revenue and admiralty causes, not being connected with the present question, need not be examined. From the errors of this system resulted, first, a delay of justice. judges bound to hold courts in succession at remote parts of the continent, were continually

The

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.

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the circuit judges, under the former sysCL secure their due attendance; a portion of ther time is left them to study and reflection, and the same persons presiding at successive terms, a uniformity of decision is preserved. The six for mer judges hold the Supreme Court, with orignal constitutional jurisdiction in matters of the utmost national importance, and appellate juris diction, in certain cases, where the sum is dispute is two thousand dollars; they are fist the court in which the errors of the circuit court are examined and corrected.

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 peestudy is unequal to the complete attainment of ple, who, in his appointments, speaks not less 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. If 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 give 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 as 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 Exe the enjoyments of private life for an office, cutive favor. 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 the last resort, before whom the errors of the inferior circuit courts were to be 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

We have been told, sir, that it is necessary the judges should ride into the States to gain s knowledge of the laws by which, in many cases, they are to decide. Until this occasion I have never heard that the laws of a country could only be acquired in the atmosphere of that 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 law 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 of the measure-whether I reflect on the mag nitude of the question on the one hand, or my

inability on the other, I am, indeed, humbled before the undertaking.

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First, then, that the Judiciary are a check on the Legislature. In the constitution, we find certain powers delegated to Congress; we also find they are prohibited from exercising certain powers; among which are, they shall pass no ex post facto law, no bill of attainder, no law respecting religion, &c. Should, unhappily, a Legislature be found who, from weakness or wickedness, or the union of both, should transgress the bounds prescribed, what is the security of the citizen? After all the experience derived from the example of other Governments, after all the deliberation and wisdom of our sages who framed the constitution, are we left, in this important instance, as under the despotism of a monarch, to seek redress through the throes and convulsions of a revolution? No, sir. The Judiciary are our security. The Legislature may enact penalties, and denounce punishments against those who do not yield obedience to their unconstitutional acts; their penalties cannot be exacted, nor punishments inflicted, without the judgment of a court. The judges are to expound the law, and that fundamental, paramount law, the constitution. To this purpose they are sworn to support the constitution. While the Judiciary firmly, independently, and uprightly, discharge their duty and declare the act of the Legislature contrary to the constitution, to be void, the Legislature are checked, and the citizen shielded from oppression and persecution. But, ask gentlemen, whence do the courts derive this power, and the honor

Without examining whether Government, according to the modern opinion, should be founded on the reason and sense of justice of man, it is certain our Government is calculated to guard against his weakness and his wickedness. Our Government has been particularly cautious on this subject; it has left nothing to the hazard * of reason or sense of justice; it has carefully delegated powers to three distinct departments, and separated these departments by boundaries plainly marked and formed, each so as not to control, at least to check, the other. The Legislative powers, though vested in men chosen frequently and by the people themselves in one branch, and by the immediate agents of the *people in the other, are nevertheless the object of suspicion and caution. Their powers, far from resting on their discretion or sense of expediency, are expressly and cautiously limited. The Executive conditional veto forms one check on the Legislature; the Judiciary, I shall contend, are a check on both. Here, permit me to say, that from the spirit and the words of our constitution, I infer that the Judiciary are a coordinate department with the Executive and Legislative. The framers of our constitution, satisfied that the powers of well-organized Governments ought to be divided into three branches-Legislative, Executive, and Judicial -have nowhere expressly declared there shall be such departments, but, after premising the objects of the Government, proceed to ordainable gentleman from Virginia (Mr. THOMPSON) how the Legislature shall be composed; and article two, section two, declares, "The power shall be vested in a President of the United 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

says, we are contending for this common law doctrine, that the courts are a check on the Legislature. If I misunderstood the gentleman, I

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Judiciary System.

[FEBRUARY, 1802

judges, among whom was that venerable gentle- | that they are thereby a check on the Legislature, man mentioned by the member from that State, I shall infer that, by the spirit of our constit whose merits and worth command the sincere tion, they ought to be independent of the other homage of my respects, protested against this branches of Government, but particularly so of act, and refused to carry it into effect; the Legis- the Legislature. The concentrating the branches lature acquiesced, and the law was repealed. of power either Executive and Legislative, e Upon the imposition of the carriage tax by Legislative and Judiciary, in the same hand, is Congress, a citizen of Virginia refused to pay the the very essence of tyranny; in proportion as 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, unerror, 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 indirectly, unconstitutionality of the act of Congress, and to be substituted for or to overrule judicial judg‐ 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 them 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 removal the court competent to relieve in se the law from office by the direct means of a vote of rewas judged to be unconstitutional. In 1792, moval, or by the indirect means, the legislative Congress passed an act imposing certain duties legerdemain of a repeal.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 Legislature for their after this act, protested against it; their protests offices, and subject to their control; a 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 act ing good behavior, and shall, 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 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

present measure, I incline to believe, it never entered the mind of any man acquainted with this clause of the constitution, that judges should be removed otherwise than by impeachment for misdemeanor. The advocates for this Legislative power contend that the tenure of "good behavior" in this article of the constitution is intended to restrict Executive and not Legislative power. It does not appear probable that an express restriction should be introduced against a power which is nowhere expressly granted; for gentlemen know that the Executive power of removal from office is a power admitted from construction, and not founded on any thing drawn from the constitution. I say this rather, because, by the constitution, the aid of the Senate is necessary to appoint, and a fortiori should be necessary to remove. It is important to ascertain what was the intention of the framers of the constitution in introducing the words "good behavior." The most correct source in our power from which this aid may be derived, is the writings and opinions at that day of those who aided in the great work. Among those publications which were written for the purpose of explaining and recommending this constitution, the most celebrated are those pieces over the signature of "Publius," written by the pens of gentlemen of leading influence in the Convention, and whose talents and patriotism are still honored by the nation. In that part of this

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Judiciary System.

work which treats of the tenure of the office of judge during "good behavior," I find this strong expression:

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are all expressly restricted; that the same article which fixes the tenure of "good behavior," expressly and undoubtedly guards against the power of the Representatives of the people, the friends of the people, by securing the salaries of the judges undiminished during their continuance in office.

"The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy, it is an excellent barrier to the despotism of the prince. In a 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 body."

Mr. GILES said that he felt some degree of

necessary to take in the discussion of this question, 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 constitutions, 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 argument can be drawn from the existence of this Legislative power there, for the exercise here. The mode of appointment there may render such control over the Executive necessary, which, from the provisions of our consti-States, and perhaps before it, a difference of tution, are not wanted here. In England, the King has the sole power of appointment-the people have no previous check. In this country, the Executive appointment is checked by the requisite sanction of the Senate. But is this Legislative power in Great Britain usurped by construction? No, if the gentleman will read again the statute of 13 William III., he will find that this power of removal is expressly granted by the Crown to Parliament. If, then, one convention had this statute before them, in adopting that part which relates to the tenure of office, and omitting that part which gives the power of removal, it is not to be presumed they intended so important a power should depend on construction. The same gentleman (Mr. ROBERT WILLIAMS) also contended that it could not be presumed the convention intended to restrict the power of the Representatives of the people, the friends of the people. What will the gentleman say of the correctness of his opinion, when I remind him that our powers

ence to either of the principles, provided in doing so they follow the honest dictates of their own judgments. It must be obvious to the most common observer, that, from the commencement of the Government of the United

opinion existed among the citizens, having more or less reference to these two extreme fundamental points, and that it manifested itself in the modification or administration of the Government as soon as it was put in operation. On one side, it was contended, that in the organization of the constitution a due apportionment of authority had not been made among the several departments; that the Legislature was too powerful for the Executive Department; and to create and preserve a proper equipoise, it was necessary to infuse into the Executive Department, by legislation, all artificial powers compatible with the constitution, upon which the most diffusive construction was given; or, in other words, to place in Executive hands all the patronage it was possible to create, for the purpose of protecting the President against the full force of his constitutional responsibility to the people. On the other side, it was contended, that the doctrine of patronage was repugnant to the opinions and feelings of the people; that