H. OF R.] Judiciary System. [FEBRUARY, 182 Armies and navies were raised, and a variety of other schemes of expense were adopted which placed the Administration in the embar rassing predicament, either to violate their faith with their public creditors, or to resort to new taxes. The latter alternative was preferred, accompanied with other strong coercive mea it was unnecessary, expensive, and oppressive, | tremendous scenes existing there, that they o and that the highest energy the Government sidered their own internal concerns in a secondcould possess, would flow from the confidence of ary point of view. After a variable condat the mass of the people, founded upon their own had been pursued by the United States in resense of their common interests. Hence, what tion to these events, the depredations commit is called party in the United States, grew up upon commerce, and the excitements produced from a division of opinion respecting these two thereby, enabled the Administration to india great characteristic principles. Patronage, or themselves in a more decisive course, and they the creation of partial interest for the protec- at once pushed forward the people to the X. I. tion and support of Government, on the one Z, of their political alphabet, before they had side on the other side, to effect the same end, well learned and understood the A, B, C, d a fair responsibility of all representatives to the the principles of the Administration. people; an adherence to the general interests, and a reliance on the confidence of the people at large, resulting from a sense of their common interests. A variety of circumstances existed in the United States at the commencement of the Government, and a great number of favorable incidents continued afterwards to arise, which gave the patronage system the prepon-sures to enforce obedience. A land tax was laid derancy, during the first three Presidential terms of election; notwithstanding it was evident, that the system was adopted and pursued in direct hostility to the feelings and opinions of a great portion of the American people. The Government was ushered into operation under a vast excitement of federal fervor, flowing from its recent triumph on the question of adopting the constitution. At that time a considerable debt was afloat in the United States, which had grown out of the Revolutionary war. This debt was of two kinds: the debt proper of the United States, or engagements inade by the United States in their federal capacity; the other, the State debts or engage-ed itself in consequence of these enterprising ments entered into by the respective States for the support of the common cause. The favorers of the patronage system readily availed themselves of these materials for erecting a moneyed interest; gave to it a stability, or qualified perpetuity, and calculated upon its certain support in all their measures of irresponsibility. This was done not only by funding the debt proper of the United States, but by assuming the payment of the State debts, and funding them also; and it is believed, extending the assumption beyond the actual engagements of the States. Hence the Federal axiom, that a public debt is a public blessing. Shortly after this event, an Indian war sprang up-he would not say by what means in consequence of which an army was added to the list of patronage. The Algerines commenced a predatory war upon the commerce of the United States, and thence a navy formed a new item of patronage. Taxes became necessary to meet the expenses of this system, and an arrangement of internal taxes, an excise, &c., still swelled the list of patronage. But the circumstance which most favored this system was, the breaking out of a tremendous and unprecedented war in those countries of Europe with which the United States had the most intimate relations. The feelings and sympathies of the people of the United States were so strongly attracted by the for two millions of dollars. This measure awekened the people to a sense of their situation; and shook to the foundation all those federal ramparts which had been planned with so mach ingenuity, and erected around the Executive with so much expense and labor. Another cir cumstance peculiarly favorable to the advocates of Executive patronage was, that during the two first Presidential terms, the Chief Exec tive Magistrate possessed a greater degree d popularity and the confidence of the people tha ever was, or perhaps will ever be again attached to the person occupying that dignified sta tion. The general disquietude which manifest measures, in the year 1800, induced the Federal party to apprehend that they had pushed their principles too far, and they began to entertain doubts of the result of the Presidential election. which was approaching. In this state of things, it was natural for them to look out for some department of the Government in which they could intrench themselves in the event of an unsuccessful issue in the election, and continue to support those favorite principles of irrespon sibility which they could never consent to abandon. The Judiciary Department, of course, present ed itself as best fitted for their object, not only because it was already filled with men who had manifested the most indecorous zeal in favor of their principles, but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people, than either of the other departments Accordingly, on the 11th of March, 1800, a bill for the more convenient organization of the courts of the United States, was presented to the House of Representatives. This bill appears to have had for its objects, first, the gradual demolition of the State courts, by increasing the number and extending the jurisdiction of the Federal courts. Second, to afford additional protection to the principles of the then existing Administration by creating a new corps of judges of concurring political opinions. This FEBRUARY, 1802.] Judiciary System. [H. OF R. and the liberty of the citizens, no longer receive the short reply, French partisans! Jacobins! Disorganizers! And although the gentleman from North Carolina sees, or thinks he sees, the destructive spirit mount in the whirlwind and direct the storm, let him be consoled by the information, "that all these, our actors, are mere spirits, and are dissolved into thin air." Yes, sir, these magical delusions are now vanished, and have left the American people and their Congress, in their real persons, and original American characters, engaged in the trans He said he would now proceed to examine whether the repeal of the Judiciary law of the last session of Congress would in any respect violate that salutary and practicable independence of the judges which was secured to them by the constitution. He said the terms inde bill, however, was not passed into a law during | which were passed; and he hoped, with calm that session of Congress, perhaps from an ap- deliberation, to improve the lessons they had prehension that it would tend to increase the furnished for the benefit of mankind in time to disquietudes which other measures had before come. The interests and sympathies, which excited, and therefore operate unfavorably to the people of the United States felt in these the approaching Presidential election. At the events, no longer turn their attention from their next session, after the result of the late election internal concerns; arguments of the highest was ascertained, the bill, after having under-consideration for the safety of the constitution gone some considerable alterations, was passed into the law now under discussion. This law, it is now said, is inviolable and irrepealable. It is said, the independence of the judge will be thereby immolated. Yes, sir, this law is now considered as the sanctuary of the principles of the last Administration, and the tenures of the judges as the horns of inviolability within that sanctuary. He said, we are now called upon to rally round the constitution as the ark of our political safety. Gentlemen, discarding all gene-ralizing expressions, and the spirit of the instru-ment, tie down all construction to the strict let-action of American concerns. ter of the constitution. He said, it gave him great pleasure to meet gentlemen on this ground, and the more so, because he had long been in the habit of hearing very different language from the same gentlemen. He had long been in the habit of hearing the same gentlemen speak of the expressions of "the common de-pendence of Judges or of the Judiciary Departfence and the general welfare," as the only valuable part of the constitution; that they were sufficient to obliterate all specifications and limitations of power. That the constitution was a mere nose of wax, yielding to every impression it received. That every "opening wedge" which was driven into it, was highly beneficial in severing asunder the limitations and restrictions of power. That the republicanism it secured, meant any thing or nothing. It gave him, therefore, great pleasure at this time to obey the injunctions of gentlemen in rallying round the constitution as the ark of our political safety, and of interpreting it in by the plain and obvious meaning and letter of the specified powers. But, he said, as if it was always the unfortunate destiny of these gentlemen to be upon extremes, they have now got round to the opposite extreme point of the political compass, and even beyond it. For, he said, they not only tie down all construction to the letter of the instrument, but they tell us that they see, and call upon us also to see written therein, in large capital characters, "the independence of judges;" which, to the extent they carry the meaning of the term, is neither to be found in the letter or spirit of that instrument, or in any other political establishment, he believed, under the sun. Mr. G. said he rejoiced that this subject was now to be discussed; he thought the crisis peculiarly auspicious for the discussion. He said the European world, with which the United States have the most relations, is now tranquillized. The tremendous scenes of blood and revolution which had agitated that portion of the globe, had at length subsided into profound peace; and had left mankind in silent "We, the people of the United States, in order to amazement, to retrospect the wonderful events | form a more perfect union, establish justice, ensure ment was not to be found in the constitution. It was therefore a mere inference from some of the specified powers. And he believed, in the meaning of gentlemen, and to the extent they carry it, that the term is not to be found either in the spirit, general character, or phraseology, of any article or section of the constitution. He meant to give the constitution the most candid interpretation in his power, according to the plain and obvious import of the English language. He should discard, in his interpretation, the terms "common defence and general welfare," which had been resorted to by some gentlemen. He considered these words as containing no grant of power whatever, but merely the expression of the ends or objects to be effected by the grants of specified powers. He therefore protested against drawing any aid whatever from them in his construction of the instrument. He said he had read through the whole constitution, to enable him to form his opinion upon this question, for fear there might be in some hidden corner of it some provision which might demonstrate the unconstitutionality of the present bill; and if so, (although he should lament such a provision,) he would instantly give up the bill. But his researches had terminated in a different result. He said he found, from the general character of the constitution, that the general will was its basis, the general good its object, and the fundamental principle for effecting this object was the responsibility of all public agents, either mediately or immediately to the people. He said the context of the constitution would demonstrate the two first points, which he begged to read: H. OF R.] Judiciary System. FEBRUARY, 192 domestic tranquillity, provide for the common defence, | courts is given to Congress in the most unq promote the general welfare, and secure the blessings fied terms, and also to ordain and estat of liberty to ourselves and our posterity, do ordain "one Supreme Court." The only limita and establish this Constitution for the United States upon the power of Congress in this clause, or of America." sists in the number of supreme courts to be e tablished; the limitation is to the number one, although that is an affirmative and at negative expression. The number of jades the assignation of duties, the fixing compeis tions, the fixing the times when, and place where, the courts shall exercise their functions &c., are left to the entire discretion of Congres The spirit, as well as the words of the consti tion, are completely satisfied, provided one preme Court be established. Hence, when these essential points in the organization sad formation of courts are intrusted to the unlimi ed discretion of Congress, it cannot be said th the courts are formed by the constitution. F further restraints, therefore, upon the discretion of Congress, the remaining part of the se section must be consulted. Here he begged leave to remark, that he had often felt a velle ration for the wisdom of the sages who forme this constitution; considering the difficultie they had to encounter, resulting from the rious local prejudices and local interests of 20 different parts of the United States, and the vas variety of opinions which the subject presente it was almost wonderful to conceive how they should have hit upon a system so admirably culated to protect and to promote the gener interests, when administered according to i original meaning and intention. He could ng go so far as to say it was perfect. He admitted, like other human productions, it was stamp Here we find the constitution founded upon the will of the people, and the object declared to be the good of the people. Through the whole body of the constitution may be discerned the responsibility of all public agents, either mediately or immediately, to the people. This responsibility results, first, from the division of authority into different departments; secondly, from a specification and limitation of the authorities of all and each of the departments; thirdly, from periodical appointments of the public agents. The first clause declares there shall be a Congress, to whom the business of legislation is confided. This Congress is to consist of a House of Representatives, to be chosen by the people immediately, and responsible to them at the end of every two years; and a Senate, to be chosen by the Legislatures of the different States, who are chosen by the people-one-third of the Senators to be chosen every two years, and responsible at the end of every six years. The Executive power is vested in a President, who is chosen by electors, who are chosen for the express purpose by the people, and responsible at the end of every four years. The President may be considered as immediately responsible to the people, although chosen through the medium of electors; because it is found, in practice, that the electors are constrained to avow the vote they intend to give before they are chosen, and the people have generally made their elections with a viewed with the common fallibility of man. The to that object. he wished, however, to see no radical change Thus, then, are formed two departments, in its principles. He wished to hand it down their powers specified and defined, the times posterity with those amendments only which for extending their powers fixed, and indeed a experience should suggest, and which work complete organization for the execution of their grow out of the continually varying stated respective powers, without the intervention of the nation. He said it was not only remarka any law for that purpose. A third department, ble for the wisdom of its arrangements, but the to wit, the Judiciary Department, is still want- correct and technical mode of expression. The ing. Is that formed by the constitution? How part of the section now to be examined, was a is that to be formed? It is not formed by the example of the justice of both these remarks. constitution. It is only declared that there The words are, "the judges both of the supreme shall be such a department; and it is directed and inferior courts shall hold their offices dur to be formed by the other two departments, ing good behavior, and shall, at stated times, who owe a responsibility to the people. Here receive for their services a compensation which there arises an important difference of opinion shall not be diminished during their continuance between the different sides of this House. It is in office." contended on one side that the Judiciary Department is formed by the constitution itself. It is contended on the other side, that the constitution does no more than to declare that there shall be a Judiciary Department, and directs that it shall be formed by the other two departments, under certain modifications. Article third, section first, the constitution has these words: "The Judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish." Here, then, the power to ordain and establish inferior The first part of the sentence respects the relationship between the Executive and the Judiciary Departments. It respects judges or officers of the courts who are appointed by the President. The last part of the sentence re spects the relationship between the Legislative and Judiciary Departments. It respects the creation of offices, the fixing the compensation of the officers or judges, and their continuance in office. These are the peculiar attributes of the Legislative Department. Accordingly, the most correct and technical words are used in relation to both these objects. The term "hold FEBRUARY, 1802.] Judiciary System. [H. OF R. their offices during good behavior," relates has no more control over an officer who holds merely to the Executive Department. The an Executive commission during the pleasure term "hold," is the common technical word of the President, than over a Judicial officer used to convey the idea of tenure. Tenure re- holding his office during good behavior. The quires two parties. The one granting, the remedy given by the constitution being the other holding or receiving the grant. Let the same in both cases, to wit, impeachment. Nor inquiry be made, of whom do the judges hold? is there any reason why the office of the one The constitution furnishes the answer, of the should be less subject to the discretion of the President. One of the most obvious rules in Legislature, than the office of the other; and it the construction of instruments of writing is, seems to be universally agreed, that although that the whole of it must be taken together, the Legislature cannot deprive an Executive and not one particular part by itself. The fol-officer of his office in any other way than by lowing words will be found in the second sec- impeachment, during the continuance of such tion of the second article of the constitution: office, yet the office itself is always subject to "And he (to wit, the President) shall nomi- be abolished. The same reasoning will hold nate, and, by and with the advice and consent with equal force respecting a judge and a Judiof the Senate, shall appoint Ambassadors, other cial office. The reason why the Executive is public Ministers and Consuls, Judges of the proscribed from the removal of a judge, is to Supreme Court, and all other officers of the secure to the judge a complete independence of United States, whoso appointments are not the President, who is not responsible for the herein otherwise provided for, and which shall discharge of Judicial duties; but the removal is be established by law." In the third section of perfectly correct in the case of an Executive the same article, are these words: "And shall officer, because the President is highly respon(to wit, the President) commission all the offi-sible for the due discharge of Executive duties. cers of the United States." These three sentences contain the relationship between the Executive and Judiciary Departments, so far as respects the objects of the present discussion. To ascertain the real meaning and import of these sentences, they should be read in connection with each other, excluding therefrom all intermediate words not immediately bearing on the subject. In that case the constitution would read thus: "He (to wit, the President) shall nominate and appoint the Judges of the Supreme Court, and all other officers of the United States, and shall commission all the officers of the United States. The judges both of the supreme and inferior courts shall hold their offices during good behavior." It may now be asked, if this case of the judges of the supreme and inferior courts be not an obvious exception out of the general Presidential discretion of appointing and commissioning all officers of the United States during pleasure? After the Government has been in operation above twelve years, and the principle of commissioning all Executive officers during pleasure, has been practised upon during the whole of the period by the Executive, as well as the Legislative Department, the propriety of that practice is for the first time now become questionable. It is said that the right to commission during pleasure, is by implication. It is readily admitted that there are no express words in the constitution to that effect; but the inference from the words which are there, is almost as strong as the words themselves, if they had been inserted. The President is authorized, without limitation, to "commission all the officers of the United States." The question arises, by what tenure? The reply is, according to his pleasure or discretion. It was not difficult to foresee, that if the President was fully empowered to commission as he pleased, he would please to commission during his pleasure. The Legislature The Legislature is not responsible for either, and of course stands in the same constitutional relation to both. This appears obvious from furnishing to the Legislature the same means of removing both, as will appear by the fourth section of the second article, in the following words: "The President, Vice President, and all civil officers of the United States, shall be removed from office by impeachment for, and conviction of treason, bribery, or other high crimes or misdemeanors." He now begged to call the attention of the committee particularly to the last clause of the sentence, which ascertains the constitutional connection between the Legislative and Judicial Departments, so far as respects the limitation of the Legislative, in the exercise of the power committed to it, for the organization of the Judicial Department. He should place particular emphasis on these words of the constitution in the exposition he proposed to make. The words are: "And shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." The first part of this section having given to Congress the power of creating courts, ascertaining the number of judges, &c., these last words may be considered as containing explanations and limitations of the general power of Congress, as was the foregoing part of this sentence a limitation of the general Executive power. And accordingly the most correct terms are used for limiting Legislative discretion, and explaining its objects; according to the words of this sentence, the judge is to receive a compensation for his services. To whom are these services to be rendered? To the people, for the benefit of the people. Who is to judge of the necessity or utility of these services? The constitution has ordained, that Congress, or, in other words, the Representatives of the people, shall be the tribunal. Suppose there should be no services H OF R.] not. Judiciary System. [FEBRUARY, 1802, United States, to be appointed by virtue of this act, shall be allowed as a compensation for his services," &c. These expressions all demonstrate the importance of coupling the service and compensation of office. But the jealous caution of the framers of the constitution did not stop at choosing the best affirmative erpression for excluding this doctrine of sinecure offices, they also applied negative restraints. required, none for the judge to perform, and that Congress should so think and determine: is the judge entitled to compensation? He is The condition of service for the benefit of the people, is the express consideration upon which the compensation accrues. No service is rendered, the competent tribunal says, there is none required, of course no compensation accrues. The judge is entitled to receive none. On this point, an obvious and most important In the ninth section of the first article of the difference of opinion exists between the two constitution, are these words, "No money shall sides of the committee. On one side it is con- be drawn from the Treasury but in consequence tended, that the office is the vested property of of appropriations made by law." In the same the judge, conferred on him by his appointment, section, "No title of nobility shall be granted and that his good behavior is the considera- by the United States, and no person holding tion of his compensation; so long, therefore, as any office of profit or trust under them, shall, his good behavior exists, so long his office must without the consent of Congress, accept of any continue in consequence of his good behavior, present, emolument, office, or title, of any kind and that his compensation is his property in whatever, from any King, Prince, or foreign virtue of his office, and therefore cannot be State." If then services rendered for the pubtaken away by any authority whatever, al- lic benefit be the essential consideration, upon though there may be no service for him to per- which the compensation does accrue to the form. On the other side, it is contended that judges; if the Congress be the proper tribunal the good behavior is not the consideration for pronouncing upon the necessity or utility of upon which the compensation accrues, but ser- such service, and if they decide that no such vices rendered for the public good; and that if service is necessary or useful; the judge sus the office is to be considered as a property, it is tains no injury in not receiving the compensa a property held in trust for the benefit of the tion, because he does not comply with the con people, and must therefore be held subject to dition on his part; nor does he sustain a hardthat condition, of which Congress is the consti- ship thereby, because it must be presumed that tutional judge. Mr. G. said, considering the he understood the second conditions attached boundary line between these conflicting opin- to his office at the time of his acceptance. It ions to be the boundary line between the offices has been admitted by all gentlemen, that Conheld for public utility, and offices held for per- gress is the constitutional tribunal for deciding sonal favor, he could not bestow too much at- respecting the services to be performed. They tention upon this part of the discussion; for if admit that Congress may modify the courts, the construction gentlemen contend for should diminish or add to their duties, alter the terms prevail, in vain have the framers of the consti- of their sessions, or make any other arrange tution, with so much jealous circumspection, ments respecting them which do not go to take erected so many ramparts against the intro- away or diminish their compensations. It is to duction of some of these offices in the Govern- be observed that there is not one of these ment of the United States. A sinecure office is powers specified in the constitution; they are an office held without the condition of service; therefore necessary inferences from the para often for past services already compensated; mount power "to ordain and establish," and often for present favor, without the condition of the power of repeal, or to take away all the ser any service. For the purpose of excluding vices to be performed, is as necessary an inferfrom the Federal Government all sinecure offi- ence as either of the others, and has uniformly ces, the sages who formed the constitution have resulted from every other specified power in through every part of it connected services and the constitution. From this part of the sen compensation, and they ought never to be se-tence, therefore, it is deducible, that the only parated in construction. The sixth section of the first article is in these words: "The Senators and Representatives shall receive a compensation for their services, to be ascertained by law," &c., and so far has this principle of the rendition of service been carried, that the service of the Senate and Representatives is to be rendered every day, and unless they do daily render service, they are not entitled to their day's compensation. In the first section of the second article of the constitution, are these words: "The President shall, at stated times, receive for his services a compensation," &c. In the forty-first section of the act under which the judges claim their compensation, are these words: "That each of the circuit judges of the restraint upon the general power given to Con- |