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the disparity between the stability of the Judicial | dividuals? What, then, is the difference be branch of Government in the eye of the Consti- tween taking the office of appellate jurisdiction tution of Virginia, and that of the United States, from the judge who possessed original jurisdierespectively, as surely I might. For the consti- tion, or taking the office of original jurisdiction tution of Virginia has a retrospect to pre-existing from the appellate judge? How is the inde Judicial establishments, which experience had pendence of the judge more affected by the one tested, which were allowed to be beneficial, and act than by the other? which it is contended were sanctioned by it. That of the United States, formed when the Confederacy had no such establishments, is to be created, from time to time: in other words, to be modified, as experience shall point out their defects-this power being devolved on a body constituted by express unalterable provisions. No, sir, I shall not dilate upon these forcible topics; I will concede, for argument sake, that the doctrine contended for by the judges of Virginia, was the true constitutional doctrine, and will apply it to the bill on your table, having first applied it to the act on which it is intended to operate. Previous to the existence of that act, the duty of judge of the circuit court was performed by the judges of the Supreme Court, who constituted a court of appeals, and by the judges of the respective districts. These were judges of the circuit court to every intent and purpose, as completely as the judges of Virginia were judges of appeals. By the operation of the law of the last session, they have been divested of this office, and other persons have been appointed to it. Much stress is laid, much ingenuity exercised to make metaphysical distinctions between the court and the office. I will grant all that gentlemen contend for, that there is a wide distinction. Does it affect the case? Does it alter the fact? The late circuit courts were not only abolished -the persons holding the office of judge of those courts no longer hold it; they have neither been impeached, nor have they resigned. They have not even accepted any new appointment inconsistent with it, and by which it became vacant. The function of judge of the circuit court does or does not constitute an office. If it does, then the judges of the supreme and district courts have been deprived of their offices, (the discharge of whose duties, be it remembered, constitutes no small part of the consideration for which they receive their salaries.) If it does not, then the circuit judges are not now about to be deprived of their offices. On the passage of the law of last session, did we hear any protest against its unconstitutionality from the Supreme or district courts? Of any resignations of the office of judge of the circuit court, in order "that a salutary system might take effect?" And yet, sir, is not that office as distinct from that of Supreme or district judge, as the office of judge of appeals in Virginia is from that of judge of the general court, chancery, or admiralty? Are not the jurisdictions of those courts separate and distinct? Both never having original jurisdiction of the same subjects; and an appeal lying from the inferior to the superior tribunal, as in Virginia, although the officers of those tribunals may be the same in

To prove the unconstitutionality of this bill, then, by a recurrence to the doctrine of the judiciary of Virginia, is to prove the unconsti tutionality of the law of which it will effect the repeal. And no argument has been, or, in my poor opinion, can be, adduced, to prove the unconstitutionality of the one, which will not equally apply to the other. No, sir, gentlemen are precluded by their own act from assuming the ground of the judges of Virginia; they are obliged to concede that we have the power, because they have already exercised it, of mod|ifying the courts, and here they concede the question. They tell you that this, however, must, to be constitutional, be a “bona fide" modification. It becomes them to prove, then, that this is a mala fide modification.

Gentlemen have not, they cannot meet the distinction between removing the judges from office for the purpose of putting in another person, and abolishing an office because it is useless or oppressive. Suppose the collectors of your taxes held their offices by the tenure of good behavior, would the abolition of your taxes have been an infraction of that tenure? Or would you be bound to retain them, lest it should infringe a private right? If the repeal of the taxes would be an infringement of that tenure, and therefore unconstitutional, could you ring all the changes upon the several duties on stamps, carriages, stills, &c., and, because you had retained the man and any one of these offices without diminishing his emoluments, abolish the others? Would not this be to impair the tenure of the office which was abolished, or to which another officer might have been appointed by a new regulation? Have not the judges, in the same manner, been deprived of one of their offices? And is not the tenure as completely impaired thereby, as if the other had been taken away also? Although it will be granted that the tenant is not so much affected, since, with one office, he has the salary formerly attached to both.

I agree that the constitution is a limited grant of power, and that none of its general phrases are to be construed into an extension of that grant. I am free to declare, that if the intent of this bill is to get rid of the judges, it is a perversion of your power to a base pur pose; it is an unconstitutional act. If, on the contrary, it aims not at the displacing of one set of men, from whom you differ in political opinion, with a view to introduce others, but at the general good by abolishing useless offices, it is a constitutional act. The quo animo determines the nature of this act, as it determines the innocence or guilt of other acts But we are told that this is to declare the Judi

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detestable acts? Would not the same evil which has excited such apprehension in the minds of gentlemen, be thus effected by means even more injurious than those which they have specified? Without any breach of the constitution an unprincipled faction may effect the end which is so much apprehended from the measure now contemplated to be adopted. I might add, that, when the public sentiment becomes thus corrupt, the ties of any constitution will be found too feeble to control the vengeful ambition of a triumphant faction. The rejection of this bill does not secure the point which has furnished matter for so much declamation. Its friends are represented as grasping at power not devolved upon them by the constitution, which hereafter is to be made the instrument of destroying every judicial office, for the purpose of reviving them and filling the places with their partisans.

ciary, which the constitution has attempted to ject by increasing the number of judges, so es fortify against the other branches of Govern- to overrule, by their creatures, the decisions of ment, dependent on the will of the Legislature, the courts? Would not public opinion be as whose discretion alone is to limit their encroach-ready to sanction the one as the other of these ments. Whilst I contend that the Legislature possess this discretion, I am sensible of the delicacy with which it is to be used. It is like the power of impeachment, or of declaring war, to be exercised under high responsibility. But the power is denied since its exercise will enable flagitious men to overturn the Judiciary, in order to put their creatures into office, and to wreak their vengeance on those who have become obnoxious by their merit. Yet the gentleman expressly says, that arguments drawn from a supposition of extreme political depravity, prove nothing; that every Government pre-supposes a certain degree of honesty in its rulers, and that to argue from extreme cases is totally inadmissible. Yet the whole of this argument is founded on the supposition of a total want of principle in the Legislature and Executive. In other words, arguments drawn from the hypothesis are irresistible when urged in favor of that gentleman's opinion; when they militate against him, they are totally inapplicable. It is said that the bill on your table cannot constitutionally be passed, because unprincipled men will pervert the power to the basest of purposes; that, hereafter, we may expect a revolution on the bench of justice, on every change of party, and the politics of the litigants, not the merits of the case, are to govern its decisions. The Judiciary is declared to be the guardian of the constitution against infraction, and the protection of the citizen, as well against Legislative as Executive oppression. Hence the necessity of an equal independence of both. For it is declared to be an absurdity, that we should possess the power of controlling a department of Government which has the right of checking us; since thereby that check may be either impaired or annihilated. This is a new doctrine of check and balance, according to which the constitution has unwisely given to an infant Legislature the power of impeaching their guardians, the judges. Apply this theory to the reciprocal control of the two branches of the Legislature over each other and the Executive, and of the Executive over them. But, sir, this law cannot be passed, because the character of the bench is to be given to it by the Legislature, to the entire prostration of its independence and impartiality. It will be conceded, that measures, such as have been portrayed, will never be taken, unless the sentiment of the ruling party is ready to support them. Although gentlemen contend, that the office of judge cannot be abolished, they are not hardy enough to deny that it may be created. Where then, sir, is the check, supposing such a state of things as the gentleman has imagined, (and which he has also declared cannot be conceived,) which shall prevent unprincipled men from effecting the same obVOL. II.-40

I have long been in the habit of attending to the arguments of the gentleman from Delaware, and I have generally found, in their converse, a ready touchstone, the test of which they are rarely calculated to withstand. If you are precluded from passing this law, lest depraved men make it a precedent to destroy the independence of your Judiciary, do you not concede that a desperate faction, finding themselves about to be dismissed from the confidence of their country, may pervert the power of erecting courts, to provide to an extent for their adherents and themselves? and that however flagrant that abuse of power, it is remediless, and must be submitted to? Will not the history of all Governments warrant the assertion, that the creation of new and unnecessary offices, as a provision for political partisans, is an evil more to be dreaded than the abolition of useless ones? Is not an abuse of power more to be dreaded from those who have lost the public confidence than from those whose interest it will be to cultivate and retain it? And does not the doctrine of our opponents prove that, at every change of administration, the number of your judges are probably to be doubled? Does it not involve the absurdity that, in spite of all constitutional prohibitions, Congress may exercise the power of creating an indefinite number of placemen, who are to be maintained through life at the expense of the community? But, when these cases are cited, you are gravely told that they suppose a degree of political depravity which puts an end to all argument. Here, sir, permit me to state an important difference of opinion between the two sides of this House. We are accused of an ambitious usurpation of power; of a design to destroy a great department of Government, because it thwarts our views, and of a lawless thirst of self-aggrandizement which no consideration can restrain. Let us not be amused by words. Let us attend

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to facts. They will show who are contending | stitutional. Here is a new power, of a dangers for unlimited, and who for limited power. The and uncontrollable nature, contended for. T opponents of this bill contend that they did pos- decision of a constitutional question must s sess the power of creating offices to an indefinite somewhere. Shall it be confided to men i amount; which, when created, were beyond the mediately responsible to the people, or to the control of the succeeding Legislature. They, of who are irresponsible? for the responsibility iş course, contend for the existence of such a power impeachment is little less than a name. Fr in the present Legislature, for whose exercise whom is a corrupt decision most to be feared there is no security but their self-respect. In To me it appears that the power which has the other words, that if the present majority should right of passing, without appeal, on the valdy incur the suspicion of the people, they may, as of your laws, is your sovereign. But an extre soon as there is any indication of their having case is put; a bill of attainder is passed; are tie forfeited the public confidence, on the signal of judges to support the constitution or the law their dismissal from their present station, make Shall they obey God or Mammon? Yet you ample and irrepealable provision for themselves cannot argue from such cases. But, sir, are we and their adherents, by the creation of an ade- not as deeply interested in the true expositat quate number of judicial offices. Now, sir, this of the constitution, as the judges can be? W is a power which we reject, though it is insist- all the deference to their talents, is not Congres ed that we possess it. We deny that such an au- as capable of forming a correct opinion as they thority does exist in us. We assert that we are are? Are not its members acting under a not clothed with the tremendous power of sponsibility to public opinion, which can s erecting, in defiance of the whole spirit and will check their aberrations from duty? Lea express letter of the constitution, a vast judi- case, not an imaginary one, be stated: Congre cial aristocracy over the heads of our fellow-violates the constitution by fettering the pres: citizens, on whose labor it is to prey. Who, the judicial corrective is applied to; far the then, are, in reality, the advocates of a limited protecting the liberty of the citizen, or the authority, and who are the champions of a dan-ter of the constitution, you find then outdoing gerous and uncontrollable power? In my esti- the Legislature in zeal; pressing the comma mation, the wisest prayer that ever was composed law of England to their service where the se is that which deprecates the being led into tion law did not apply. Suppose your reliste temptation. I have no wish to be exposed my- had been altogether on this broken staff, and self, nor to see my friends exposed, to the dan- not on the elective principle? Your press nzit gerous allurements which the adverse doctrine have been enchained till doomsday, your citize holds out. Do gentlemen themselves think incarcerated for life, and where is your remedy: that the persons, whom I see around me, ought But if the construction of the constitution is to be trusted with such powers? Figure to with us, there are no longer limits to our powe. yourselves a set of men, whose incapacity or and this would be true if an appeal did not le want of principle has brought on them the through the elections, from us to the nation, to odium of their country, receiving, in the month whom alone, and not a few privileged individ of December, the solemn warning, that on the uals, it belongs to decide, in the last resort, ot 4th of March following, they are to be dismiss- the constitution. Gentlemen tell us that our ed from the helm of Government; establish the doctrine will carry the people to the gallows i doctrine now contended for, and what may we not they suffer themselves to be misled into the be expect? Yes, sir, the doctrine advanced by our lief that the judges are not the expositors of the opponents is that of usurpation and ambition. constitution. Their practice has carried the It denies the existence of one power by establish- people to infamous punishment, to fine and ining another infinitely more dangerous; and this prisonment; and had they affixed the penalty you are told is to protect, through the organ of of death to their unconstitutional laws, judges an independent judiciary, the vanquished party would not have been wanting to conduct them from the persecution of their antagonists, although to the gibbet. it has been shown that, by increasing the number of judges, any tone whatever may be given to the bench.

The theory for which gentlemen contend seems to me far-fetched and overstrained. A mighty enginery is set in motion, which to all good purposes is ineffectual, although formidable in the perpetration of mischief. If, however, the people should be of a different opinion, I trust that at the next election they will apply the constitutional corrective. That is the true check; every other check is at variance with the principle, that a free people are capable of self-government.

But, sir, if you pass the law, the judges are to put their veto upon it by declaring it uncon

Mr. MACON.-As no other member at present seems disposed to take the floor, I will ask the attention of the committee for a few minutes. I have attended with the greatest patience and diligence, to the arguments of gentlemen who oppose the bill as unconstitutional; and had they produced a single doubt in my mind on the point of constitutionality, I should most certainly have voted with them against the bil on your table; but I can with truth say, I have not heard any argument which has in the least changed my first conviction, that we have a constitutional right to pass it.

I should not, I believe, have spoken on this question, had not my colleagues, who differ with me in opinion, thought proper to bring into view

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a vote of the Legislature of the State, instruct- | rior courts the additional jurisdiction of a court ing her Senators and recommending it to the of equity, and never a solitary complaint, that Representatives to use their best endeavors to this law was unconstitutional; and it must be obtain a repeal of the last Judiciary act. On acknowledged, that if you can make a court of this resolution of the State Legislature, they law also a court of equity, by a Legislative act, made some extraordinary remarks, which I you can by the same power take it away; and mean to notice; but first permit me to inform what becomes, in this case, of the commission the committee, that it has been the constant which is to be held during good behavior? It practice of the Legislature of that State, from is, according to my construction, to last no longthe commencement of the General Government er than the law which created the office reto the present day, to instruct her Senators, mains in force, and this is long enough to make and to recommend to her Representatives, to the judges independent. As to the salary of pursue such measures on all the great national the Judges of North Carolina, the twenty-first questions that have occurred, as the Legislature section of the constitution says, “they shall have judged the interest of the State required, and adequate salaries during their continuance in this proceeding has never been considered im- office," and yet with this clear right in the Leproper. I shall endeavor to answer the gentle- gislature, to lessen as well as to add to their men in the order they spoke, beginning with salaries, the judges, it is agreed, are indepenmy colleague (Mr. HENDERSON,) who was first dent. My colleague well knows, that many on the floor. If I understand him rightly, (and attempts have been made to deprive the superior if I do not he will correct me, because it is not courts of exercising any jurisdiction in cases of my desire to misstate a single word,) he said equity; and he also knows, that attempts have that the Legislature of the State might have been made to establish a court of appeals, which adopted the resolutions in consequence of the should revise the decisions of the superior courts Message of the President; but, upon examina- now in being; and by the constitution of the tion of the dates, this will be found to be im- State, any supreme court may, on presentment possible. The message could not have reached of a grand jury, try the governor for mal-adminthe Legislature before the question on the re-istration, &c., and I believe the present courts solutions was taken and decided; and on no important question was that body ever more unanimous; and though my colleague has said the question was there viewed but on one side, and decided in a manner ex parte, yet I will be bold to say, if there were any members in that Legislature who thought on this subject as he does, he enjoyed the same right there that my colleague does here, to deliver his sentiments.

Knowing as I do the great talents and integrity of my colleague, and I believe no one on this floor knows them better, I was surprised when he charged others with being under the influence of passion, when his conduct must convince them that he was guided by the very passion which he attributed to others He quoted the Constitution of North Carolina; let us examine it, and see whether his argument can be aided by the practice under that instrument. The thirteenth article is in the following words: that "the General Assembly shall, by joint ballot of both Houses, appoint judges of the supreme court of law and of equity, judges of admiralty, and attorney general, who shall be commissioned by the Governor, and hold their offices during good behavior." On this clause he noted the independence of the State Judiciary; and they are independent so long as the law creating their office is in force, and no longer; and it is worthy of notice, that in this section, no mention is made of salary, and yet the judges have been considered as independent as the Judges of the United States. Soon after the adoption of the constitution, the Legislature of the States established courts in conformity thereto; first county courts, and then superior, and afterwards, by a Legislative act, without electing a single new judge, gave the supe

are authorized to do this. I have not at this place been able to see the act which gives this authority; but no doubt is entertained of the fact.

It is clear, then, that in North Carolina, all parties have thought, that "during good behavior," only meant so long as the office existed; because, by establishing a court of appeals, the judges now in being would not be supreme judges, and in all these various attempts, no one ever charged either of them to be unconstitutional. On examination of the Constitution of North Carolina, it will be found that it makes provision for the appointment of other officers by the Legislature, but says nothing about adequate compensation, except in the section last read, and if you take the office away, what is an adequate compensation for doing nothing? Another proof might be drawn from the Constitution of North Carolina, in favor of the opinion I hold, which is taken from the twenty-ninth section, that "no Judge of a Supreme Court shall have a seat in the General Assembly," and my colleague knows, that the present judges could not hold a seat there, because they are supreme judges. And he also knows, that no one ever doubted the constitutional right of the Legislature to establish the courts before mentioned; and it seems to me this, on his construction, would be a violation of the constitution, because, having once made a Supreme Court, it must always remain so, to secure, what he calls, the independence of the judges.

Sir, I was astonished when my colleague said, that the judges should hold their offices, whether useful or not, and that their independence was necessary, as he emphatically said, to protect the people against their worst enemies, them

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selves; their usefulness is the only true test of their necessity, and if there is no use for them, they ought not to be continued. I will here ask my colleague whether, since the year 1783, he has heard of any disorder in the State we represent, or whether any act has been done there which can warrant or justify such an opinion, that "it is necessary to have judges to protect the people from their worst enemies, themselves." I had thought we, the people, formed this Government, and might be trusted with it. My colleague never could have uttered this sentence, had he not been governed by that passion which he supposes governs others. It is true that we are not a rich and wealthy State, but it is equally true, that there is no State in the Union more attached to order and law; and my colleague himself would not say that it was necessary to have judges for this purpose in the country we represent; the people there behave decently without having Federal judges, or standing armies, to protect them against themselves. Is it not strange, that the people should have sense enough to pay their taxes without being driven to it by superior force, and not have sense enough to take care of themselves without this new Judiciary? They certainly contrived to do this before the act establishing this Judiciary passed.

Another expression of his equally astonished me; he said, that on the 7th day of December, a spirit which had spread discord and destruction in other countries, made its entry into this House. What are we to be told, because at the last election the people thought proper to change some of their representatives, and to put out some of those who had heretofore been in power, and to put others in power of different opinions, that a destroying spirit entered into all the public functionaries? For what, sir, are elections held, if it be not that the people should change their representatives when they do not like them? And are we to be told from the house-tops, that the only use of elections is to promote, not public good, but public mischief? We are also told, that this constitution was to be destroyed by the all-devouring energies of its enemies. Who are its enemies? We are not, nor do I think there are any in this House; but there are parties as well in this House as out of doors, and no man wishes more sincerely than I do, that they were amalgamated, that we might get rid of all party gall, and free ourselves from improper reflections hereafter. But by what energy is the constitution to be destroyed? The only energy heretofore used, and which made the change so much complained of, was the energy of election. Sir, I scarcely know what to say when I hear such uncommon sentiments uttered from a head so correct and a heart so pure; it is the effect of a passion of which he is unconscious. Again he says, if you repeal this law, the rich will oppress the poor. Nothing but too much law can any where put it in the power of the rich to oppress the poor. Suppose you had no law at all, could the rich

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oppress the poor? Could they get six, eight a ten per cent. for money from the poor with law? If you destroy all law and governmen can the few oppress the many, or will the may oppress the few? But the passing the bill wil neither put it in the power of the rich to oppres the poor, nor the poor to oppress the rich There will then be law enough in the country to prevent the one from oppressing the othe But while the elective principle remains fre no great danger of lasting oppression can be really apprehended; as long as this continua the people will know who to trust.

We have heard much about the judges, and the necessity of their independence. I will state one fact, to show that they have power as well as independence. Soon after the establishment of the Federal Courts, they issued a writ-nd being a professional man I shall not undertake to give its name to the Supreme Court a North Carolina, directing a case then depending in the State court to be brought into the Federal Court. The State Judges refused to obey the summons, and laid the whole proceeding before the Legislature, who approved their o duct, and, as well as I remember, unanimously and this in that day was not called disorganis ing.

As so much has been said about the resol tions of North Carolina, I will repeat again, that it is no uncommon thing for the Legislature express their opinion on great national subjects and will ask my colleagues whether they ever heard any complaint of the resolutions about the Western land? And whether none of them in the Legislature never voted for the resol tions about the western land, nor about pot offices and post-roads? The Legislature surely had as much right to give an opinion as the Chamber of Commerce of New York; but, pat it upon what footing you please, it is entitled to respect, as the uninfluenced opinion of s many respectable individuals; and the Legisis ture never intended nor wished that the recom mendation to the representatives should be binding on them at all events; and if I believed the bill to be unconstitutional, I should not vote for it, but as I do not, I hope the gentleman will pardon me for pursuing my own sentiments, and voting for it. I hope no man will ascribe to me a disposition to produce anarchy in m native country. Although poor myself, I fee as strong a desire as any one on this floor for the preservation of good order and good gov ernment.

It has been asked, by the gentleman_from Delaware, (Mr. BAYARD,) will the gentleman from Virginia (Mr. GILES) say, the assuming the State debts was improper? I have no hesitation to say that it was done at an improper time; and, in showing that it was, I hope I shall be pardoned for travelling over topics that really have nothing to do with the merits of the present question. That act is now done, and, by what I say, it is not to be understood that I wish Congress should put their hands upon

it.

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