^^C:c:«:; '-«'<«&-»' 'X c < .'^^■>^.^/^c^:c < c:/'^-C."<«C ^^«^<,: X:.' <-■■ ti- . ^feffc ;<.-■-■ ^ "^- :,c' .■ ^§':«' •c < ■■-■ .: ■ ^^JT ^ cc^ CCC CC- ■^ c,^S Speech of Mr. B A i .i ^ijt^^ - <; ■ Vn the bill received from the Senate^ entitled " yf i ^rtmKfrii.peal cer- fain acts refpecting the organization of the courts of the II, States J* De'iv^red in the House «if Representatives j Feb. 19, 1802, Mr. qAaVi [RMrVN. I muft be allowed to express my surprize |K^ the x;e-iiTse pursued by the honorable gentleman from Virginia (Mr. (S-i'ts) in the remarks \vhich he has made on the subjedt before us, I had expected it as well from chat sentiment of magnanimity which* ought to have been inspired by a sense of the high gromidhe held on the floor of this house, as from the professions of a defire to conciliate, which he has so repeatedly made dm-ing the session.— We have been invited ti> bury the hatchet, and brighten the chain of peace, We were disposed to meet on middle ground. — We bad as-surances from the gentlcm?n,tl)5£. he would abftiiin from lefleft'ons on the past, and tliat his only wish -^vas that -we might unite in future in piomoting the welfare of our common . country. We confided in the gentleman'^ sincerity, and cherished tL«» hope, that if the divisions of party w^re not banished from the house, its spirit would be rendered less intemperate. Such were our impressions, when the mask was suddenly thrown aside, and vve saw the torch of dis- cord lighted and blazing bcfors our eyes. Every effort has been made to revive the animosities of the house, and to inflame the palLons of the nation, lam at no loss to perceive why this course has betn pursued. The gentleman has l^etrn anwiliir.g to rely upon the lliength of his sobjedi , and iws therefore determined to make the m.easiire a party qu eft ion. He has probably insured nicces^is, but wou'd it not have been honorab e and moie commendable to have left the deo'sion of a grer provoked by the government, Hedi^ not even venture to deny, that it w^as a war»t' defence, and entered into i a order to proteft our brethren on the frontiers from the bloody scalping knife, and murderous roin-aAhawk of the lavage. \Shat ought, the government to have done I Ought they '■to have estimated the va- lue of the blood, which probably woyld be fhed, and the amount of the devastation likely to be committed before they determined on resist- ance i' They raifed an --irmy and after great exjience and various for- tune they have secured the peace, and safety of the frontiers. But, why was the army mcntiotied on this occasion, unjesa to lorewarn us of the fate which awaits them, and to tell us, that their days are numbered t 1 cannot suppose, that the gentleman mentioned this littl? army distri- buted on.a line of three in.g and ability. Did he mean that the dispatches which contained t&s®e' letters were impostures designed to deceive and mislead the people . ftl AmerJcH- Intended to rouse a falie spirit not justified|by events, llio' C 7 ] the gentleman had no respedl for some of the charafters of that embaeisj; though he felt no refpe£l for the chief justice or the gentleman appoint • cd from South Carolina, two charavSlers as pure, as honorable and exalt- ed, as any country can boast of , yet I shou d have e p cled tliat he would hare felt some tenderness for Mr. Gerry, in whom his party hgi since given proofs ot undiminished confidence. Does the gentleman h&^ lieve that Mr. Gerry would have joined in the deception, and assisted hi fabricating a tale which was to blind his countrymen andenab'e the g^ vernment to destroy their liberties ? Sir, I will not avail neyself of the equivocations or confession of Tallyrand himself, I say these gentlemea will not dare publicly to deny what is attested by the hand and seal of Mr. Gerry. The truth of these dispatches admitted, what was your govern- ment to do? Give us, say thedireciory i,200,oo0 Hvres for our o;ra purse, and purchase fifteen millions of dollars of Dutch debt, (whicli was worth nothing) and we will receive your ministers and negociate for peaces It was only left to the government to chuse between an unconditt- onal surrender of the honor and independence of the country, or a raaa- ly resistance. Can you blame, sir, the administration for aline of con- du6l, which has reflefted on the nation so much honor, and to whitli under God, it owes its present prosperity. These are the events of the general government which the gentle- man has reviewed in succession, and endeavored to render odious or suspicious.— -For all this I could have forgiven him, but there is one thing for which I will not, I cannot forgive him. I mean his attempt to distrub the ashes of the dead — to disturb the ashes of the great and good Washington. Sir, I might degrade by attempting to eulogize this illustrious charafter. The work is infinite y beyond ray powers. I will only say that as long as exalted talents and virtues confer honor a* mong men, the name of Washington will be held in veneration. After, Mr. Chairman, the honorable member had exhausted one quiver of arrows against the late executive, he opened another eqnallj poisoned against the judiciary. He has told us. sir, that when the power of the government was rapidly passing from federal hands, after we had heard the thundering voice of the people which dismissed us trom their service, we erefted a judiciary, which we expeAed would afford us the shelter of an inviolable sanAuary The gentleman is deceived. We knew better sir, the charafhers who were to succeed us, and we knew that nothing was sacred in the eyes of infide's. No, sir, I never had a thought that any thing belonging to the federal govevnment was holy in the eyes of those gentlemen. I could never therefore imagine that a sanctuary could be built up which would not be violated. I believe these .gentlemen regard public opinion because their power depends upon it, but I believe they respefl no existing establishment of the government, and if public opinion could be brought to support them, I have no doubt they woul dan nihil ate the whole. I shall at present only say farther on this head, that we thought the re-o'-ganization of the judicial system an useful measure, and we considered it as a duty to employ the remnant of our power to the best advantage of the country. t ■} The lionc'ra'bie g«at]eman expressed KJs joy that llie constitution hkd fetlast become sacred iu our eyes — that we formerly held that it meant any thing or nothing. 1 believe, lir, that the constitution formerly ap- peared dirferent in our eyes from what it now appears in the eyes of the dominant party. We formeriy saw in it the principles of a fair and good- ly creation i We looked upon it as a source of peace-, of safety, of honi or andof prosperity to the country. But no v/ the view is changed ; it is the instrument of wi d and dark destru(flion it is a weapon which is r6 prostrate every establilhment, to which the nation owes the Unexampled blessings which it enjoys. The present state of ihtconntrj is an unanswerable commentary npon our construction of the constitution. It is true thatwe rriade it ■mean murh and I hope, sir, we shall not be taught by the present admini- stration that it th<»an even worse than nothing* This gentleman has not confined his animadversions to the individual tstablishment, but has gone so far as to make the judge, the subjeft of per- -■^onal inve h^ve ^~ne ; and in go'njj thus far they have done-nothirig mete than faithtuUy discharged their duty. But if, gir, they have offended again it the ccnftitution or laws of the country, why are they not impeaclied ? 1 he gentleman now holds the fword of juOice, the judgts-dre not a privileged order, they have no flielter but their innocence. But in any vifew are the lins of the former judges to bt faftened upod tnc new judicial tystrm ? \Viiuld you annihilate a system, because some nieti under part of it had acted wrong. The tonstitution has pointed out a mode of punishing and removing the men, and dr es not leave this miserable pretext for the wanton exercife of powers which is now coni tcmplated. The honourable member has thought himself justified In making at charge of a serious and frightful nature against the judges. They hzvi been represented as going about searching out vicftims of the seditioa • law. But no fa£l has been stnted — no proof has been adduced, and ihi gentlemen must excuse me for refi sing my be'irf to the charge till it is susiaihed by stronger and better ground than assertion, C9] If, howivcr, Mr. Chainnan, the eyes of the genttemcln are delighted ■irith vidims, if objetls of misery are grateful to his feelings, let me turn his view from 'he Avalks of the judges to the traft of the present execu- tive- It is in this path we see the real victims of stern, uncharitable, unrelenting power. It is here, sir, we see the soldier who fought the butties of the revolution ; who spilt his blood and wafted his strength to establish the independence of his country, deprived of the reward of his services and left to pine in penury and wretchedness. It is along this^athj that you may see helpless children crying for bread, and gray hsirs sink- ing in sorrow to the grave 1 It is here that no innocence, no merit, no worth, no services can save the unhappy se£lary who does not believe in the creed of those in poAver. I have been forced upon this siibjeft, and before I leave it, a' low me to remark that without enquiring into the right of the President to make vacancies in office, during the recess of the Senate, but admitting the pOAver to exiii, yet that it never was given by the constitution to enable the chief magistrate" to punish the in- sults, to revenge the wrongs or to indulge the antipathies of the man. If the discretion exifts, I have no hesitation in sayimg that it is abused when exercised from any other motive than the public good. And v/hen I see the will of a president precipitating from office, r en of probity, knowledge and talents, againll whom the community has no complaint, I consider it as a wanton and dangerous abuse of power. And when I see men who have been the vidlims of this abuse of pcv/er, I view them as the proper objects of national sympathy and commiseration. Among the causes of impeachment agamft the judges, is their attempt to force the sovereignties of the ftates to bow before them. We have heard them called an ambitious body politic ; and the fadt ] allude to, has been considered §s full proof ot the inordinate ambition of the tody. Allow me to say, sin the gentleman knoAvs too much not to knoAT that the judges are not a body politic. He supposed perhaps there wag- an odium attached to the appellation, Avhich it might serve his purposes to conned Avith the judges; — But sir, how do you derive any evidence of the ambition of the j'udges from their decision that the itates under our federal CO mpad were compellable to do justice ? Can it^ be shewn or even said, that the judgment of the court was a faise construftion of the conftitution i The policy of latertim.es on this point has altered thij( conftitution, and in my opinion has obliterated its fairest feature. lam, taught by my principles that no poAver ought to be superior to justice. It is not that I wish to see the states humble in dust and ashes ; it is not thrt I Avish to see the pride of any man flattered by their degradation ; but it is that I wish to see the great and the small, the sovei-eign and the subjed boAv at the altar of Judice, and submit to those obliga- tions from which the deity himself is not exempt. What Avas the effe6^ of this provision in the constitution ? It prevented the states being the judges in their own caufe, and deprived them of the power of denv- mg jiillice. Is there a principle pf ethics more clear than that s. maa '1^' [ 10 I ijfuglit not to- be a iudge in his own cause, and is not the principle equaf-" }y strong when apph'ed not to one man, but to a colledive body. It was the happi.iess ofoarGitintion which enabled us to force the greatest &ite to submit to the yoke of justice, and it would have been the glory ©f the countty in the remocest times, if the principle in the constitution had been maintained. What had the states to dread? Could they fear injus^- tice when opposed to a feeble individual ? Has a great man reason to fear oppression from a poor one ? And could a potent state be alarmed by the unfounded claim of a single person ? For my part I have always thought that an independent tribunal ought to be provided to judge on- the claim.s agamst tl'us gc^vernment. — The power ought not to be w our c^wn handt — V/e are not. impartial, and are therefore liable without our knowledge t-o do wrong.. I never could see why the whole community should not be bound by as strong an obligation to do juilice toan- individual, as one man is bo,und to do it ta anoth<;£. In England the subject has a better chance for jvrftice against the so- vereign tlian in this country a citizen has against a state. 'I'he crov/n is never its owR arbiter, and they avIio- sit is- judgment have no interest in the event of their decision. The judges, sir, have been criminated for their conduft in relation ta to the sedition* a(!!l, and have been charged with searching for viftims who were sacrificed uadj&r it. The charge is easily made, hut has the gentle- man the means of su-pporting it ? It was the evident design of the gen-- tleman to attach the odiujxi of the sedition law to the judiciary ^. on this^ score the judges are surdy innocent. They did not pass, the a£t ; the legidature made the law, and they were o'bhg.ed by their oaths to exe- cute it. The judges decided the hvwto be eonftitutionali and I am not ?aow going to agitate the queftion. I did hope when the law paffed, that its erlecl wou^d be useful. It_,did not touch the freedom of speech,, and was de;v?gned only to reftrain the enormous abuvses of the press}-. It went HG farther than to punish malicious failshoods published with the wicked- intention of deilroyiu:^" the governrm.ent. No innoeeot man ever did or eouidhave suffered under the law. No punishment could be inflicted till a jury was satislied tha.t; a p and to consign them to a common fate ? Do I see in tks L 13 3 yrciimmary remarks 0? tlie honorable member the title page of' tne Vs- lume of measures which are to be pursued ? Are gentlemen sensible of the extent to whieh it is designed to lead them ?, The are now caded on to re- duce the army, to diminish the navy, to abolish the znint, to deftroy the independence of the judiciary, and wiii they be able to stop when they are next required to blot out the public debt, that hateful source of mo* nied interell and of ariftocratic influence ? Be assured, sir, we see but a small part of the syfhem which has been formed. Gentlemen know the advantage of progressive proceedinp-s, and my life for it, if they can carry the people with them, their carreer wii! not be arrefted while a trace re" mains of what was done by the former adrainstrations. There Avas another remark of the honorable member which Imuilbc allowed to notice. The pulpit, sir, has not escaped invective. The mi- nisters of the gospel have been represented, like the judges, forgetting the duties of their callin^T and em.ployed in disseminating ,the heresies of federalism. Am I then, sir, to underftand that religion is also denounced, and thatyour churches are to be shut up ? Are we to be deprived, sir, both of law and gospel ? Where do the princip'es ot the gentleman end ? When the system of reform is completed what will remain ? I pray God that this flourisliing country which, under his providence, has attained such a height of prosperity, may yet escape the dessolation suffered by another nation, by the pradice of similar dodtrmes. _ I heg pardon of the committee for having consumed so much trme up- on Doinrs httle connected with tlie subjea of the debate. liU I heard the^onorable member from Virginia yefterday, I was preoarea only to discuss the merits of the bill upon which you are called to vote- riis pre- liminary remarks were designed to have an eltea whicn i deemed it ma- terial to endeavour to counteraa, and I therefore yielded to the necessity of pursuing the course he had taken, though I was coflscious ot aepart^ iuTvervfar from the subjea before the committee, lo the chsrus- sion of that subjea I now return with great satisfaaion, and shall consi- der it under the two views it naturally presents ; the con .btutionahty and the expediency of the measure. I find it.moil convenient to consider firit, the queftion of expediency, and shall therefore beg permission to invert the natural order of the enquiiy. To shew the inexpediency of the present bill I shall endeavour to prove the expediency of the judicial law of the last session. In doing this it will be necessary to take a view of the heading features oft^he pre-exiit- ing system, to enquire into its defeas, and to examine how lar tne evuS complained of were remedied by the provisions of the late act.— It is not my intention to enter into the details of the former system ;^ it can be ne- cessary only to ftate so much as will distinctly shew its detects. _ There existed, sir, a supreme court, having original cognizance in a lew cases, but orincipally a court of appellate iurisdiaion. This was the great national court of dernier resort. Before this tribunal questions ot unlimited magnitude and consequence both of a civil and political nature received their final decision ; and I may be allowed to call it the natioiial crucible of juilice, in which the judgments of icfcnor courts were to be ?«duced to their dements and cleansed from every impuritj. There war a circuit court, composed in each distrift of a judge of the supreme court and the distridl judge.. This was the chief court of business bpth of a eivil and criminal nature. In eachdiftrict acomtwas eftablished for affairs of revenue and of ad-? Tniraity and maritime jurisdiflion. It is not necessary for the purposes of the present argumeijt to giv<; a more extensive outline of the former plan of ourjudtciary. We yho should then preside. C 19 ] I do not pretend, Mr. Chairman, to have enumerated all the defecisi which belonged to the former judicial system. But I trust those which I have pointed out, in the minds of candid men, will justify the attempt of the legislature to revise that system, and to make a fairer experiment of that part of the plan of our constitution Vv'hich regards the judicial pow- er. The defedls, sir, to which I have alluded, had been a long t'me felt and often spoken of. Remedies had frequently been proposed. I have known the subjed brought forward in congress or agitated in pri- vate, ever since I have had the honor of a seat upon this floor. I be- lieve, sir>agreat and just deference for the author of the ancient scheme, prevented any innovation upon its material principlesi , There was na gentleman, who felt that deference more than myself, nor should I have ever hazarded a change upon speculative opinion. But praftice had discovered defeats which might well escape the most discerning mind in planning the theory. The original system could not be more than ex- periment ; it was built upon no experience. It v/as the fii-st application of principles to a new state of thingsi The first judicial law displays great ability, and it is no disparagement of the author, to say its; plan is not perfect. I know, i\r, that some have 5aid, and perhaps not a few have believ- ed, that the new system was introduced not so much with a view to- its improvement of the oldj as to the places which it provided for the friends of the administration. This is a calumny so notoriously false, and so humble as not to require nor to deserve an answer upon this floor. It can"" not be .supposed that the paltry object of providing for sixteen unknown^ men could have ever offered an inducement to a great party, basely to violate their duty ; meanly to sacrifice their charafiter, and foolishiy tci- forego all future hopes. I now come, Mr. Chairman, to examine the changes which were made' by the late law. This subjeft has not been correftly understood. It has' every where been erroneously represented. I have heard much said about the additional courts created by the act of last session. I perceive theni spoken of in the president's message. In the face of this high aufhori** ty, I undertake to state^ that no additional court was established by- that law. Under the former system there was one supreme court, audi there is bu£ one now. There were seventeen ditrict courts,, and there' ai"e tio more now. There was a circuit court held in each district, and Such is the case at present. Some of the disti'ict judges are directed to hold their courts at new places, but there is still iii each district but one district court. "What, sir^^ has been done ? The unnatural alliance he- tweeii the supreme and district courts has been severed, but the jurisdic- tion of both those courts remains untouched. The power or Authority of neither of thenl has been augmented or diixsinished.- — The jurisdic; tion of the circuit court has been extended to the cognizance of debts of 4o0 dollars, & this is the only material change in the power of that court. The chief operation of the late law is a new organization of the circuit courts. To avoid the evils of the former plan, it became necessary to ffeate a new coi-ps of jud^s. It y^zi consider£d that the supveme comi C 20 3 ought to be stationary and to have no connection with the judges over wncse sentences they had an appellate jurisdiction. To have formed a circuit court oxit of the district judges, would have allowed no coiirc of appeal from the distict court, except the srpreme court, which would have been attended with great inconvenience. But this scheme was opposed by a s'ih greater diii-.culty. In many districts the duties of the judge require a daily attention. In all of them busi- ness of great impoi-tance may on unexpected occurrences require his presence. ' This plan was thought of ; it was w:''' examined and finally rejected, in consequence of strong objections . tci6ls may vary,but in the same distriil they will be uniform. The practice [22] •f easli distrift ■vvill suggest improvements to the otliers, the progressive i», sioption of wliich wili in time assimilate the systems of the several districts. It is unnecessary, Mr. Chairman, for me to say any thing in relation to the distridl courts. Their former jurisdiction was not varied by the iaw of the last session* It has been my endeavouf, sir, td give a correft idea of the defefts of the former judicial plan, and of ihe remedies for those defefcs introduced by the law lio\v designed to be repealed. I do not pretend to say that the present system is perfeft, I contend only that it is better than the old. H, sir, instead of destroying^ gentlemen will undertake to improve the pi-esent plan, I will not only applaud their motives, but will asist in their labour. We ask only that our system m^ay be tried. Let the sentence of experience be pronounced upon it. Let us hear the national voice after it has been feiti They will then be better able to judge its merits. In practice it has not yet been complained of ; and as it is designed fof the benefit of the people^ how can their friends juilify the aft of taking it from them before they have manifested their disposition to part with it ? How, sir, am_ I to acountfor the extreme anxiety to get rid of this establishmento Does it proceed from that spirit which since power has been given to it^ has so unrelentingly persecuted men in office who belongs edtoa certain se£l ? I hope there will be a little patience; these judges are old and infirm men ; they will die ; they muft die ; wait but a short time^ their places will be vacant; they will be filled by the disciples of the new school, and gentlemen wili not have to answer for the poiMcal iaurder which is now meditated « I shall take the liberty now, sir, bf paying some attention to the objec= tioris which have been expressed against the late establishment. An ear* ly exception, which in the course of the debate, has been abandoned by tnost gentlemen, and little relied on by anyone, is the additional expencei The gentleman from Virginia stated the expence of the present establish* ment at 1 37,000 dollars. — On this head the material question is, not what is the expenceof the whole establishment, but what will be saved by the repealing law on the table. I do not estimate the saving at more thair 28,500 dollars* You save nothing but the salaries of 16 judges of 2000' dollars each* From this amount is to be deduded the salary of a judge of the supreme court, which is 3,500 dollars. Abolishing the present- system will not vary the incidental espences of the circuit courti YoU i-evive a circuit court v.'hose incidental expences will be equal to those of^ the court you destroy. The encreased salaries of the distrift judges of Kentucky and Tennessee muft remain. It is not proposed to abolish their offices, and the admissions upon the other side allow that the salaries can* not be reduced; If there were no other objeflion, the present bill could not pass with- Oiit amendment, because it reduces the salaries of those judges, which ia' a plain undeniable infradtion of the constitution. But, sir, it is not a fair way of treating the snbjcdl to speak of the aggregate expence. The grefit enquiry is, whether the judges are necessary, and whether the salaries ■ Z £3 3 allo'^yed to them are reasonable ? Admitting this utility of the judges, \ think no gentleman win contend, that the compensation is extravagant, W^ are told of the expence attending the federal judiciary. Can geutle-i imen tell me ofa government underwhich justiceismore cheaply adminisier- ed, add together the salaries of all your judges and the amount but little ex- ceeds the emoluments of. the Chancellor of England. Ascertain the ex~ pences of state justice, and the proportion of eacii state of the expence of federal justicr, and you v/ill find that the former is five times greater than the latter. Do gentlemen expeft that a syftem expanded over the whole union is to cost no more than the establishment ofa single state ? Let ;* be remembered, sir, that the judiciary is an integral and co-ordinate part yfkh the highest branches of the government,— No government can long exift without an efficient judiciary. It is the judiciary which ap- plies the law and enables the executive to carry it into efTefk. Leave your laws to the judiciaries of the states to execute, and my Avord for it in ten years you have neither law nor constitution. Is your judiciary so coflly that you will not support it? Why then lay out. so much money \ipon the other branches of your government ? I beg that it will be recol'' leifted that if your judiciary costs your thousands of dollars, you legislature fostsyou hundreds ofthousandsj and your executive millions, An objedlion has been derived from the paucity of causes in ^he federal ^ourts, and the objection has been magnified by the allegation, that the number had been anually decreasing. The fads admitted} I draw a very different inference from my opponents. In my opinion they furnish the strongest proof of the defedls of the former establishment^ and of the ne- cessity ofa reform, I have no doubt, nay, I know it to be a fact that many suitors v/ere diverted from thofSe tribunalsby the iluftuations to which they were subje£l. Allow mehoAvever, to take some notice of the fafls. They are founded upon the presidentialdocument No. 8, Taking the fads as there stated, they allow upwards of 5 o suits annually for each court, ''ivhenit is considered that these causes must each have exceeded the value o£ 500 dols. and that they were generally litigated cases, I do not conceive, that there is much;ground to affirm, that the courts were without business. But, sir, I must be excused for saying, I pay little respe6l to this docu- ment. It has been shewn by others in several points to be erroneous, 8c. from my own knowledge, I know it to be incon eft. What right had the president to call upon the clerks to furnish him with a lift of the suits ivhich had been brought, or were depending in their respeftive courts? Had this been directed by Congress, or was their any money appropriat" «d to pay the expence ? Is their any law v,hich made it the duty of the fclerks to obey the order of the executive ? Are the clerks responsible for refusing the listsj or for making false or defeftive returns ? Do we know any thing about the authenticity of the certificates made by the clerks ? And are we not now aiming a mortal blow at one branch of the govern^ jnent, upon the credit, and at the instigation of another and a rival de- |>artment ? Yes, sir, I say at the instigation of the President, for Icon" iider this business wholly as a Presidential measure. This document 9in4 hh message ehew that it ;Drigrn4ted with him j I consider it as now 1 24 ] syc'ecuted hy hims and I believ«3 that he has the power to arrest its pro* gress, or to accomplish its completion, 1 repeat that it is his measure, I bold him i'f sponsjb e for it ; and I trust iu God that the time will come • when he v'fill be called upon to answer for ic as his aiit. And I trust the time will arrive, v/hea he will hear us speaking upon the subjecl more sfTectualiy. It has been stated as the reproach, sir, of the bill of the last sessions that it was made by a party at the moment when they were sensible, vhat their power was expiring- and passing into other i'lauds. It is enough i^f ime, that the full aud legitimate pov/er existed. The remnant was pic nary and eihcient. And it was our duty to employ it according to oup judgments and confciences for the good of the country. We thought the bill a ssjutory measure, and there was no obligation upon us to leave it as ^ work for our successors^ Nay, sir, I have no hesitation ip a.vow's ing, that I had no cojifidence in the persons who were to follow us. And I was the ntore anxious while we had the means to accomplish a work which i beli-ved they would not do, & which I sincerely thought, woui4 contribute to the sai'ety of the nation by giving Itieng-th and support co the constitution through the storm to which it wa:. likely to be exposed^ The fears, which I then felt, have not be dispeliec, but multiplied by what I have since seen^ Iknow nothing which is to be allowed to lland^ lobferve the inftitutior.s of the government falling around me, and wiiere the work of destruAion is to end God ajone knowi. Wediicharged our confciences in eslablibhiing the judicial system, which now exists, aiiu it will be for those who nuw hold the powei of the government to answer for the abolition ofit, which they at present meditate. We arc told that our law was againft the sense of the nation. Let me teil those gen^ tlemen, they are deceived, when they call themselves the nation. i.hcy are only a dominant party, and chough the sun of federalifm Ihouid ne"- ver rise again, they will shortly Had men better or worse than them-selves thrusting tliem out of their places. I know it is the cant of inose in power, however they have acquired it, to call themselves the nation. We have recently witnessed an example of u abroad. Bow rapidly did the nation change in France, at one time Brissot calkd himself tiic nati- on— then Robespierre, afterwards Tallien and Barras, and finally Buo- naparte, But their dreams were soon dissipated, and th^-y awoke in suct, cession upon the fcaifoid, or in banishment. Let not these gentlemen flatter themselves that heaven has reserved for them a peculiar deltiny. What has happened to others in this country, they must be liable to„ Let them not exult too highly in the enjoyment of a little brief and fleet- ing authority. It was curs yesterday, it is theirs to day, but lo-mdrrow' It may belong to others. [Mi. Bayard here stated, that he h?.d gone through the remarks he liad to make conneded with the first point of the debate y that he ©bserved, that the common hour of adjournment had gone by, and thal^ he should sit down in order to allow the committee to rise, if chcy thought proper ; and that he shculd beg leave to be heard the fpilow* i: ^5 ] ing day upon the second point. After some conversation, th« cona- niittee rose, reported — * and the houfe adjourned.] Saturday, February 20, 1802. 1 owe to the committee the expression of my thanks for the patience with which they attended to the laborious discussion of yesterday. It will be my endeavor in the remarks which I have to offer upon the remaining point of the debate, to confume no time which the impor- tance of the subje6l does not juftify. I have never departed from the iqueftion before the Committee, but with great reludance. Before I heard the gentleman from Virginia, I had not an obfervation to make unconnected with the bill on the table. It was he who forced me to ■wander on foreign ground, and be affured, fir, I fhall be guilty of no new digreffions where 1 am not covered by the fame jullification. . I did think that this was an occalion when the houfe ought to have been liberated from the dominion of party fpirit, and allowed to decide upon the unbiafTed diftates of their underftanding. The vain hope which I indulged that this courfe would be purfued was foon diffi- pated by the inflammatory appeal made by the gentleman from Virginia, to the paffions of his party.' This appeal, which treated with no re- fpeft the feelings of one ^lit of the houfe, will excufe recriminations which have been made, or v/hich fhall be retorted. We were difpofed to conciliate, but gentlemen are deceived if they think that we willfub- mit to be trampled on. I fhall now, fir, proceed to the confidcratioh of the fecond point which. the fubjedt prefents. However this point may be difguifed by fubtil- Hes, I conceive the true queftion to be — has the legiflature a right by a law to remove a judge? Gentlemen may Hate their queftion to be, has the legiflature a right by law to vacate the office of a judge ? But, as in fad they remove the iudgC: they are bound to anfwer our queftion. The queftion which 1 ftate they will not meet. Nay, I have conli- dered it as conceded upon all hands, that the legiflature have not the ^ower of removing a judge from his office ; but it is contended only that the office may be taken from the judge. Sir, it is a principle in lavw which ought, and I apprehend docs, hold more ftrnngly in politics ; that what is prohibited from bein^ done direflly is reftrained from be- ing done indirettly. Is there any difference but in words, between tak- ing the office from a judge and removing the judge from the office? Do you not indireftly accompli'lh the end, which you admit is prohibited. I will not fay that it is the fole intention of the fupporters of the bill before us, to remove the circuit judges from their offices ; but I will fay that they eft.blifh a precedent, which will enable worfe men than themfelves to make ufe of the legiflative power for that purpofe upon any occafion. If it be ccnftitutional to vacate the office, and in that way to difmifs the judge, can there b? a que 'ion as to the power to re- «r«atc the offic« and to fill it ^.vith another man ? Repeal to-day the bill of L ^^ 3 i the bit feflion, atrl the circuit ju'-Jwes are no longer in office. To-mdr* tow refcind this repealinsr aft (and no one will doubt the right to do it) and no effeft is produced but the removal of the judges. To fuppofe that luch a cafe may occur is no vagary of imagination. The thing has been donr, fha"nelefs^y done in a neighbouring ilate. The judges there held their offices upon the fame tenure with the judges of the United States- Three of thenl were obnoxious to the men in power; The ju» dicial law of the ilate was repealed, and immediately re=en^dted without, a Teil being thrown over the trHnfa.S\ion. The obnoxious men were re- moved, their places fupplied wi^rh new charafters, and the other judges tvere reappointed. Whatever fophiftry may be able to fhcw in theory, in praftke there t^ever will be f->und a difference in the cxeixife of the powers of removing a judge and of vacating his office. The qiieftion, wh'ch we are now confidering, depends updn the pror^ Vifions contained in the conflitution. It is an e ror often committed, lipcn plain fubjeil? fo Search for reafons very profound. Upon the l^refent fubjeft the llrOng provilians of the conilitution are fo obvious, that no eye can overlook them. Tiiey have been repeatedly cited, arid as long as the queliion Rated is under dicuffion, they inutl be reiterated. There are two pfominent provillous to which I now particularly allude, ill. The judges fball hold their offices during good behaviour. 2d. Theii confipenfation Ihall not be diminifhed during their continuance ia tjffice, Thef? are provifions fo clearly underftood upon the firll: impref- llon, that their meaning is rather obl'cured than dlullrated by argument. "V^ hat is mtant, rind what has been univerfally underftood by the tenure of '< good behaviour?" A tenure for life if the judge commit no mifde- iiieanor. It is fo underftood and expreffed in England, and fo it has always been received and admitted in this countryc' The exprefs pro- ' The same thing must be allowed •with respedt to the salary of the president. Sir, the, true principle is;,' that one Jegiflature may repeal the. ad sf a fqrmer, in cases not probij, bited by the constitution. Tfe correct question therefore is, whether the legiflature are. not forbidden by the constitudon to abridge the tenure of a judicial office ? ; . ■ . . ■* . In order to avoid cases of a nature similar to those which I have pu^j the gentleman from Kentucky, (Mr. Davis) apd after him the gentlema;!, from Virginia, endeavoured to draw a distin6tion between laws execuied,-, and laws executory-. . , . : . ... .. ■ , . ■ - •• ; ^ ,', The distinction was illustrated by reference to the case of a state ad^" mitted.by a law into the union. iKere it is said the law is executed, and- funftus officio, and if you repeal it, still the state remains, a member )i.t£ the union. But it was a«ked by the gentleman .from .Kentucky, suppos-: inf a law. made to admit a state into the union, pt a future time, befoi^^e th^ time of admission arrived, could not ihe law be repealed., I will an= swer the.question to the satisfa£^ion of r.he gentleman, I: y stating a case- which exists.' < By an ordinance of congress, in the year i787,' congress- ordained, that when the population wichin the limits of a state within^ the North'' Western Tsrritory, should amount to 60,000 souls, the distiitl'' should be admitt<:d as,. a member ,of the union,. ; Will the gentleman venture to doubt as to this, case ?< ■■ Would he dare to tell the people of this country, that congress had the power to disfranchise them,? . , The law, in .the case .1 refer to, is executory,, though the event upon which it is lo.take effect' is Jimited by population and not by tfm.e. But, sir, if there. were any thing in the. principle, it has, no influence up- on the case to which it has been applied, A. law has created the oflRce of ajudge, the judge has been appointed and the office filled. , The law- is therefore executed, and upon the vcy distinction ol the genileman, can- not be repealedo The law fixing the compensation is executory, and # c '5 ] so is that which establishes the salary of the President, but tho' executory they cannot' be repealed. The distindion therefore is idle, and leaves the i^uestion upon the ground of the repeal, being permitted or prohibited by the constitution. • I .shall now advert, sir, to an argumcHt urged with great force and not. a little triumph, by the honorable member frorii Virginia, This argument is de.rivtd'frqm tlie word, ^hold' iji the expression,: he judge shall )6o/ci .his office during good iVehaviqur. ' It is considered as correla- tive to tenure'. The gentletuc^n remarks, tbat the constitution pro*^ vides, that the President shall ' nominate the judge t'-T his office, and when appro-^ed by the senate ghall commission hini.' ' It is hence inferred, that as the. president nornihatsS'. and comnussions the judge, the judge i)o/c/j the office of the president ; and that Avh en the Constitution provides, thnt the tenure of the qffice fr.all be daring ^ood behavior, the pyo vision ap- plies to, the president, ■& restrainsthe p6wer'|vhich otherwise yould result in consequence b£ the offices being holdcn of hiip, to remove the- judges at •will. .This is.an aigument, sir, which J should have thought, that ho* norable member Avould have been the last person upon this floor to have adopted. . ' It not only imputes to the president royal attributes, but pre- rogatives, derived i'rom the rude doflrines of the feudal JaAV. Does the gentleman mean to contend^ that the president of these sta.tes'^ like the monarch of England, is the fountain of honor, of justice and of ofBce ^ Does he mean to contend,' thatth^ courts are the President's courts and the judges, the president's judges?- Does he juean to say, sir, that the chief magistrate is always supposed to be present in these courts, and that the judges are but the images of his justice ? To serve the paltry purposes of this argument, would the gentleman be willing to infuse in- to our constitution, the vit^l spirit of the feudal dodrines ? He does not believe,' he cannot believe, tl^at when the word ' hold' ^vasem*- ployed,' any reference waS' had to its feuda.1 import. The language of Ihe constitution furnishes no support to this feudal argument. These officers are not called the j udges of the President, but the judges of the United States.- They are a branch of the government equally impor- tant, and designed to beco'-ordinate with the president.. If» sir, because the President nominates to office and commissions, the office is held of him, tor a s'.ronger reason where by patent he grants lands of the United States, the lands are held of him. And upon the grantee's dying with- out heirs,! the lands would escheat not to the United States, but to tlic President. ' In England, the tenure of lands and cfficea is derived from the same principle. All lands are held mediately or immediate. y of the crown, because they are supposed to have been originally acquired from, the personal , grant of the m.onarch. It is the same of office, as the king is supposed to be the source of all of- fices. Having the power to grant, he has a right to define the terms of the grant. . These terms constitute the tenure. When the terms faiUthe tenure ceases, and the objeft ofthe grant reverts to tht- grantor. 'i'his gentleman has charged others with monarchical tendencies, but never have I before witngssed an attempt so bold and strong to incorporate in ®ur con» ■w 1 30 J jstitiJtipr)} aranK monarclikal prir.ciple. If, sir, the principle of our con? 8titiition on this subjed bcrerul^'ican and not inonarclicai, and the judges hold tleir offices of the Uni'^cd States, and not of the President, then the ap'bliration of his arj^umeiit has all the force against the gentleman, v/hich ht designed it shoiild have against hh adversaries. For if the office be held of thf Ui:ited States, and the tenure of good Vehavipnr was design; ed to restrain the power of those of whom the office was hoklen it will iofow, that it was ti e intention to restrain the power of the Ignited States. ' We were told by an honorable gf-ntierr.an horn Virj-inis, yvho lose early in the debate, (Mr. Thpmpspn) ihat the p'inc'ples we aovocated tended to establish a sinecure systcn^. in the coiintiy. Sir, 1 am as lit- tle disposed to be accessary to the establishmtnt of sucb a system as any gentlepap on thisficor. But let me ask hew ti it; system is to he prodiifed ? We establioled judicial ofRces, to -which ranreici'S i:,i ci irn-^ portant duties were assigned. A conr^pensat'on has been allc cd tc the judges, v,hichpo one will say, is in)nodfrt,te, or c'Errcportinntd to the service to be rerdered. These gentlemen first abolish t!ie duties of the cffcts, then call the judges pensiontrs^ and aftervvards accuse us of establ^sliing sinecures. Inhere are no pensioners at present, it ther^ should !^ any, tbey will be tl:e creatures of ihjs law. I haye ever con- sidered it as a sound and nioral 11 axur, that no one shculc- ava'l h;n:self of his own wrong. It is a max ni. which Qught be ecjually chh'osLOry upon the pub ic as iipon the piivate man. In the prestrt cast, the judge offers you his service. You cannot say, it is not worth the n o- pey you pay for it. Yon refuse to accept the service ; and a^ttr engage ing to yaj him while he continutd to perform the service, yon denj him his ccmi..ersatior, because he pcglecis to render services uhich yo\i, h;u'e prevented him frem perfoiming. Was injustice ever more tla- grant? Surely, sir, the judges are iimorent. If vecid wrong, w) y should tbev be punished and oisgraced ? They did not cass the cbnoxi— 0U2 law, they did not create the offices, they bad no participation in the o'udty bu/iuess, but they were invited upon the faith of government, to renounce their private professions, to relinquish the epioltiment of other emp.'oyments, and to eater, into U^e serviie oi th^. United States, ' v-ho enga;.-ed to letain them dtirmg their lives, if they were guilty of no niiscoi cud . "1 hey have behaved theu]- jelves vvtl!, uncxceptionably v^eil, when they fmd the government re- scinding the ccntrad made with them, refusing the stipulated pi ice of i]:t.ir labour, dismissing them, from service, and in order to cover the sc-ridalcus breach of faith, st"gmarizing them with nanies wb'ch m.ay. renoer them odious to their couritryroen. Istheie a gentleman on the i^oi.r of this hoiite, who would not revok at such condud in private life I lo there one who wcu d feel himself justil'ed, after emp'oying a person for a certain time, and agi-eemg to pay a certain ccm.pensation, to dis- miss the party from the service upon any caprice which a'tei'ed his views, denv him the stiint-atsd icm.pensation, and to abuse im with opprobri- cuc-itrnes, for c>pei?iing the benefit of the (-ngagencnt ? A bo/d attempt was iHade by one of the gentlemen from Virginia, r 3' J (Mr. d-iles) to force to his aid the Statutes of 1 3th Wm. 3d. T call It a bold attempt, because the gentleman was obliged to re!y upon his own assertion to support the ground of his argument. He stated that the clause in the constitution was borrowed frortt a simi'ar provisijn iri the Statute. I know nothing about the fa'^, but I will allow the gentl^niari rts full benefit. In England at an earlier period, the judges held their coninlissons during the goo>l pleas jre of the monarch The parliament desired, and he king coasented, that the royal prerogati'/e should be restrained. That the offices of the judges should not depend on the will of the croVn alone, but upon the joint pleasure of the crown and of parliamenc The king consented to part with a portion of his prerogative by reiiriquishin'T' his power to remove the judges without the advice of his; 'parliament. But hy dn exhress clause hi this statute;he retained the authority to rerho've them with the ad- vice of his parlianient* Suppose the clause had been omitted, which re- served the right to remove upon the address of the two houses of par la- ment, and the Statute had been worded in the unqualified language of our constitution, that the judges should hold their o.tices during good- behavior, would not the prerogative of removal have beeu abolished al- together ? I will not say th'at the honorable member has been peculiarly unfortunate in the enrployment of this argument,' because; sir, it ap- pears to me, that most to which he has had recourse, when justly consider- ed, have operated against the cause they were designed to suppo't. The gent'eman tel is us tha:t the constitutional provision' on this sub* jecl was taken from, the statute' of Wi.iiam'. — Will he answer me this plain question ? Why do we find omitted in the constitution, that part of the statutory provision,' which allowed the judges to' be removr>d up- on the address of the two branches of the legislature ? Does he suppoas that the clause was not observed ? Does be imagine that the provision was dropt through inadvertency X Will he impute so gross a negleil: to an instrum.erit every sentence and word, and comma, of which', he hasf told us was so mature'y considered, and so' v/arily settled. No, sir, it is impossible ; and give me leave to say, that if • this part of the constitu- tion were taken fro'n the statute (and the gentlentan front Virginia must have better information- on the subjedt than I have) that a s ronger ar^ gument could not be adduced, to shew that it was the mtention Qi those who framed the constitution, by omitting that clause in" the statute which iraade the judges tenants of their offices at the v/i!I of parliament; to' Jmprovein this country the English plan of judicature, by rendering the judges independent of the legislature. And I shall have occasion in the course of my observations to shew, that the strongest reasons derived from the nature of our governnYent, and wkich do not apply to the En- glish form., required the improVexm'ent to'bem'ade.' . Upon this point, sir, we m-iy borrow a fevv' additional rays of light fi-om the constitutions of Pennsylvania, of Delaware, and of som '>ther states. In those states it has been thought, tliat there migh be miscon- du6l on the part of a judge, not amounting to an impeachable offence, for which be should be liable to' be removed- Their conatitutlons tbere=» E i^ 3 fore have varied from that of the United States, and rendered .their judges liable to he removed upon the address of two thirds of each branch of the legislature, :, Does, it not strike every mind, that it was the intention of those . constitutions to have judges independent of a majority of each branch of the Iegifla.turej; and I apptehend.also thatitmay he fairly in- fen-ed, that it was .understood id ■ those states when their constitution •>vas formed,, that even tv/o third: of each branch of the legislature would.not have the power to remove a judge whose tenure of office was during goodhehavior, .unless the pow'er was expressly given to them by the constitution.; I cannot wel!, conceive of any thing moi'e^ absurd iq an instrument designed to last for centuries and to bind the furious passi- ons of party, than to fortify one pass to judicial independence, and to leave another totally unguarded agkirist the violence oi legislative power, i _ . .. , : - - . ,, •■' •.■'•'■, .'.';,-'■;'■' It has been luged by the gentleman frcm Virginia, that our admission that congress has a power to modify the office of judge, leads to the conckision, that they have the |50wer to abolish the office* Because, by paring awa:y their pqwefs they may at length reduce them to a shadow,, and leave them as humble and as contemptible as a court of piepoudrco The office of a judge consists of judicial powers vvhich he is appointed to execute. Every law which is ; passed increases or diminishes those powers, and so far modifies the office : .nay it is competent for the legis-; lature to prescribe additional duties or to dispense vv'ith unnecessary ser? vices, which are conneded with the office of trie judgCa But this pow- er has its bounds. You may modify the office to any extent which does not effeft the independence of the judge. The judge is to hold the pf«" lice during good behavior ; now modify as you please, sO that you' not infringe this consiitutiorial provision. Do you ask me to draw a Hne and say, thus far you can go and no far- ther. I adn^t no h'we can be drawn. It is an aff'air of sound and bona Jide discretion. Because a discretion on the subjeft is given to the legis- Jature, to argue upon the abuse of that discretion is adopting a principle subversive of all legitimate povv-er. ' , The constitution is predicated upon the exiftence of a certain degree of integrity in man. It has trusted powers liable to enormous abuse, if all political honesty be discarded. The legis'atu're is not limited in the amount of the taxes wliich they have a right to impose nor as to the ob- jects to which they are to be applied. Does this poAver give us the pro- perty of the country, because by taxes Ave might draAV it into the public coff'ers, and then cut up the treasury and divide the spoils ? Is there any pOAver in respedl to Avhich a precise line can be draAvn, between the dis- creet exercise and the abuse of it, . I can only say therefore on this subjefl, that every man is acquitted to his OAvn conscience Avho bona Jide does not intend, and who sincerely does not believe, that by the law Avhich he is about to pass, he interferes with the judges holding tlieir offices during good behaviour. I am noAv brought, Mr, Chairman, to take notice of some remarks which fell from tlic gewt'eman from Virginia, which do not belong to the t'33l '\.„, M)]C?t Before U3 ; But are of" su^cient Jniportaneil); deserve part!Cii!|r ktteation. He called our attention in a very impressive manner to the State of parties in this house at the time when the aA of the last sesaipa bassed. He describes us in a state of blliid paroxysm of party rage, in- capable df discerning the liature or tendency of tUe measures we were pui:- suin^. That a majoritv of the house were struga:ling to cduriteraa the espi^ession of the public vnll, in relation to the person who was tobethp 6hief magistrate of the country. , . , . ^ .. J ; .-. . I did suppose, sir, that this business was at an end, and I did imagine that a'sgentleiTiein had accemplished their objea, they would hav-e beea satisRed. , Bur ss the sabjed is again renewed, wemuftbe allowed a loW- d'to justify oar coadUa. I know riot what the gentleman calls an ex- pression of the public wi-iL Tiiere ^^ere two candidates for tiie olfice_of President, who Were presented to the Mouse of Uepresentativeg With equal sulfrages.' Tue constitution -ave us the right and made it diir dur ty to eled that one of the two wkom we thought preferable. ' A pub'.j^ riian Is to xiotice the pub.ic will as constitutie'na'ly e vpre^sed, The gen' tie.hari from Virgiriia'and many others may have ha^ vhen- preference b;it that prefere.ice of the puoUc will did not appear by its constitution. al expression. Sir, I am not certain, that eitlier of those candidates had a majority of the country In his Tavoari EKclading the ^tate of South- Caroiln^. the country w.s equally aivida, We know that parties ja that! state were nearly equally ba'-iriced, arid the claims of both the canui- dates Were supported by nd other scrutiny in;othe public \yill, thanoua; official ret»rn of votes. Those vo es are very impenea evidence^ of Uie tfue will of a majority of the nation, THey resaited from political lu- trip-ue, and artificial arrangement. Wheii ytc look at the votes we niust suppose, th-it every man in Vir- ginia voted the same way. These votes are received as a rorrea expres- ^ion of the public vi^Ili. , A nd yet we know* that if rht votes of ttiac lla. e were apportioned according' to the sevefalvoices of the people, that at least seven out of twenty one, v/ou.d h^ive feen opposed lo the success- ful! ca-didatesV It 'vas the suppression of tiie wlii of one third of VV', ginia, which enatales gcntlemt- n now to say, that the present ch>ef magi- strate is the man of the peop d. I consider that as the public will which': is expressed by coastitunona! organs. To th?t wd.l I boW arid submit. The public wi:l, thus m:mdested, gave to the House of Represencaclves^, a cho:ce of tv/d iri'en for President. Neither of them was the irian whoia' I wished to make President, but my ekaion v^'as confined by the con- stitution to one of the tv.0, and I gave ray vote to ihe one who I thou,-ht was the greater and better man. 'ihat vote I repeated, and in_ that vo e I sho'uld have persisted, had I riot been dnven from it, by Iinp- rious neces- sity. The prosnea ceased of the vdie H-ing eff fti-aSand the akeraatlve,, en 7 remained of taking one man for P^ree'idcnt or having no President at ^ all.' I choose, as I then thought, the lessrr evil ■ _ ^ , From the scene in this house, the gentleman carried us tii due in the senate. I should blush, sir, for the honor of tbecountiy, could I sup- pose that the law designed to be repealed, owed its support in that body to the motives which have been indicated. The charge desi^ined to be conveyed, not only deeply impUcatts tii€ InttjTi-Ity of tai-uviduals ©f me ■i 34 :i 8,*nate, but of tlie person who was then chief magistrate. Th^gent'es* man, going beyond ail precedent, has mentioned the names of members of that bod-}*, to whom commissionj issued for offices not created by.thg bi'J before thern, but which that bil! by tiie promotions it afforded wai, likely to render vacafit. He has considered the scandal of the transac- tien, as aggrava':ei by the issuing of commissions for offices p'ot ac^tually, vacant, upon the bare presumutiori that they wouid become vacant, by the incumbents accepting commissions, for h'gh offices \vhich were issued in their favor. The gentleman has particularly dwe'.t upon the indecent appearance of the business from two conimissions being heid by different, persons at the same tinie, for the same office* "" '' I beg that it will be understdod, that I mean to give no opinion as to the regularity of granting a commission for a judicial oiFice.' upon the probability of a vacancy, before it is icliially vacant. But I shall be alf lowed to say that so much doubt attends tiie point, that an, innocent. mistake ragat be made on tht^ subjecl. I believe, sir, it Uas been the "praftice to consider the acceptance of an office, as reiaiiing to the date of, of the commission. The oiScer isalowed his salary froma that date, up-t on thepiincipie that the commission is a grant of tlie office, and the title commences with the date of the grant. Thisprincip e is certainly lable^ to abuse, but where there was a s:tspiciGn of abuse, 1 2:)"esume the govern-, ment v/ould'depai-t from it. Admitting the omce to pass by the corn^ mission, and the acceptance to relate to its date, it then does hot appear, very lucorrect in th.: r.se of a commission, for the office of a ciixm't, judge, granted to a district j.idgcj as the acceptance of the commission" for the former Oifice relates to thd dale of the commission, to considei'\ the latter office as vacant at the sanie time. The offices a e incompatible. You cannot suppose the same person in both offices at the same time.— Frora the moment^ therefore, that you consider the office af circuit judgd, filled by a person who holds the commission of distrinest mind will execrette. Butj sir, we are not to coiidert^n, till we have evidence of the fad. If the of, . fence be noinous, the proof ought to be plenary. I will consider th« evidence of the I'aSi, upon which the honorable member has re ied, and 1 wi!! shev/ iiim by the application of it to a stronger case, that it is of a niture to prove nothing. ■ Let me first ttate the principal case. Tv/o gentlemen of the senate, Mr. Read of SoutiuCai-oina, and Mr. Green of Rhode. Island, who voted in' favor of the law last sess-ion, each reccved an appointment to the place of d:»tricl jud^-e, which was vcsignea tube v-cated by tlie promotion of [ 35 J llte'tiistr^M; judge to the r ffic : of circuit judge. . The gent'cman convey, ed to-US a distmil impressian of his opinion, that there was an undei'- 8tand:ing between these gentleinen and the president, and that the offices ^•erc th^ promised price of tlieu" votes. I presume 8ir» the gentleman Aviii havp more charity, in the case which I am about to niention, and he \rii! for once admit thst public men oug'-t not to be copdemned, upon iocse conclusions drawn from equivocal pre-, sumptions. The case, sir, to y/hich I refer, carnes me qpce more to the scene of the presidential eledtion. 1 should not have introduced it into this de- bate, had it not been called up by the honorable member from Virginia. In that scene I had rny part, it was a part not barren of incident, and wbirh has left an impression, which cannot easily depart from my recoir le'ftion. I know who Vi'ere rendei-ed important characters, either from the possession of persona! means, or from the accident of pol.Kical situa- tion. A'od now. sir, let me ask the honorable member^ what his refiectiona and belief will be, when he observes that every nian, on whose vote the event of t! ,e eletlio.nhung, has since been distinguished by pA^csidentia! fa- vor. I fear, sir, I ghail violate the decorum of parliamentary proceeding, irl the rnertioniig of names, but I hope the example which has been set me ^i\\ be admitted as an excuse. Mr Charles P nckney of Houth-Carolina was not a membei of the house, but he was one of the most aftive, ef„ ficient ^nd successful promot'rs of the election of the present chief ma- gistrate. It was well ascertained that the v.ues of South-Carohna were XQ turn the equal balance of the scales. The zeal and industry of Mr« Pinckney had no bounds. The doubtful politics of South-Carolina wers decided,. and her votes cast into the scale of iVir. Jtticrson. Mr. Pinc!<, ney has hnce be?n appointed minister plenipotentiary to the court of Madrid. An appointment as high and honorable, as any within the gift of the executive. I will not deny that this preferment ]s the re- ward of talents and servircF, altltough, sir, I have never yet heard of the talents or the services of Mr. C Pinckney. In the house of represen- tatives I knovv^ what was the value of the vote of Tvlr. Claiborne ot Ten- tiessee. The vote of a state was in his hands. Mr. Claiborne has since beer, raised to the high dignity of governor cf tiic Missiesippi Territory. I know hpw great & how greatly lek, was the importance of the vi;tc of Mr. l^inn of N, Jersey, The delegation of the state consists ofiivc members. Two of the delegation wgre decidedly tor Mr. JciFcson ; two vere de- cidedly for Mr. Burr. Mr. lAnn was cinsidered as inclining to one side, but stili doubtful. Both parties looked up to him for tr,e vote of jf^Jev^-Jerscy. He gave it to Mr. jcffcrs&n, and Mr. Linn has since bad the profitable office of supervisor of his district gonfered upon him. Mr. Lyon of Vermont, was in this instance an important man. He neutraiizttt ti.e vote of Vermont, His absence alone v,ould have given the vote of a state to Mr. Burr^ It -vvas too much to give an ofiic;: to Mr. Lyon; his character v/as too low, But Mr. Lyon's son has bee r handscmciy provioed for in one of the executive ot^:ces. I (ball adi to the catalogue but tiie name of one mure gentleman, Mr. Edwarv4 Livingstou of New-York. I knew t^ell, full well I knew the c, a«e- ^aenceof this t?-enMefr>aB. UU means were not limited to K's ovrn yq|f| , nay, I always considered more than the vote of New -York within his^' p wer. Mr, L.vJngs;on hag been made the attorwey for the difrlvift ot rMeu..YorV — the road of prefermpnt has been opened to him, asd his Krrther has been raised to the d^stingmshed pla^e of mifiigter pienipo- t, ntia;y to the French Republic . This catalogue might be swelled to a mrch gre:;ter mpgni'tjd^' j? but I fe.ir, Mi". Chairman, were J to proceed furl' e. it mioht be si:pp'ofed, that I rnysclf harboured the uncharitable sv:spicii>ns of the integrity of the chiff magistrate, and of the purity of the gent'emen whom he thought proper to promote, which it is iTiy de* sign alone to banifh from the mind of the honorable member frornVir- piiiia. It wotjld be doing me great injulb'cetes fuppose, that 1 have the spsllest desircj or have had the remotest in'ention to tarnish the fame ot the pregent chief ma -..istrate ; or of any of the honorable ^entl«m^n vho h;ive beer t!'e obj fts of his favor, by the staiem^nt which I have tn;.de ; my motiv.* is of an opposite n;.'ti(re, The late president appoint- ed geatifonep to office, to y.'hom he owed no personal obligations, but who only supported whst has been considered as a favorite raeasure.— ^ This has been assumed a§ a snfHcient ground, not only of suspicion, but of condemnation. The pif^'sent executive, leaving scarcely an exception, has appointed to office, or h^ r> by 3ccident, indire£lly gicjtihed evej^y man, ■who had any disfiKgiiished m«aiis in the competiticn, for the presidential offic", of deciding the el<°flion in his favor. Yet, sir, all this furnishes too feeble a presumption t© warrant me to expi'ess a suspicion of the integrity of a grrat oificrr, or of he probity of honor;ihle men, in the discharge of the high functions which they had derivccl from the cenfi- dencfc of their country. I ynasurit, sir, in tins case, the tionorable mem- bfr frona Virginia is as exempt from this suspicion as myself. And I shall have accorophshed my whale objec-t, if I induce that honorable mem- ber, and other membeis of the committee, who cntertajn his suspicions as to the conduct of the late executive, to review the ground of those faspic'ons, and tu consider that in a case furnishing much itronger grucnd for the pivsumption cf cnaiinal.ty, they have an unshake* belief, 211 uub^oke^i coniidence in the pui J>)' and fainvirss of the executive con^i; cuA. 1 return again to the suhje£l before the cpmnaittces frcm'the unplesfant «jigre>stipn to which I was for<:ed to lubmit, in order te repel uisinua-, tions which were calculaicd to h«ve the worst efl"c(St, as well abroad as ■vT'thiq the walls cf this hcnseV I shall now cursorily advert to some mgaments oi muur irrportancc, which are supposed to have some "Hf eight py gentlemen on the othtr side. It is said? *-hat if the courts are g-.nctuarii s and the judges cannot be rernc'ved by law, it would be in the power ot a party ^o create a host of them to live as penfiqners on the Qf;n'itry, Ttiis aigunaent is predicated upon an extrtme abuse of power, V hich can never fairly be urged to t* strain the k'gitiiiaate exercise of it: zs well might it be urged, that ^ sybst^iu-nt cor.gress had a right to rc- «S';ce thr salary of a judge, oi of the President, fixed by a former con- gress, bf'CtUise if the right did not exist, oic congiess migst confer a. ^;iU■y oi 500,00Q or JjCCQjCQQ dollars to tfee mippvcrishirient of th^>' 4 C 37 J powotry. It wi'll be time enoi?gh to decide upon ^^•se extreme caaof when they occur. We aretoia, that (hr do6i we, we conrend fo-,. ena^ bles^ one legislature to derogate from the posfer of auother. That it atmhutes to a Ibrrner j| power which denies to u aafesequent J^gisiauire. This ia not CQrrca. ' We adniic that tlv.s con.,;T-^i posses3?s all the power p:-,8sessed by the last congress, Thr. congVfss bad ^ powgr to establish qourts, so bas tKe present. That congreas had not, nor did it dairn the power to abolish the office of a judifc whiie it '^as' hilcd.— Though they thought five judges «n«ier the new system suffioem to flpnstitute a capreme court, they did not attempt to touch tiie office of father of the six judges. Though they considered it more convenient to have circuit judges in Kentucky andTennesiseej than distria judges^ ^hey did pot lay their hads upon the offices of the distna judges. We therefore deny no power to this congress? which was tio- denied to the last. An honorable member from Virginia, (Mr. Thompson) seriously pxpressed;his alarni, left the principles we contended for jhoutd introduce into the country a privileged order of men. The idea of the gentleman BLipposes, that every office not at vvJllestahHshes a privileged ord«r.' The judges have their offiics for one term; the president, the' seaators and the members of^this house for differcBt terras, 'While these terms en., dure, there is^ privilege to h^'id the places, and 51© power exists t;o ren!0\je. Jt thjs be what the gentleman means By a privileged orderj ^nd he agrees, that theprefidenr, the senators and the members of this houfe belong to privileged orders, I ilisii g,ve myself no trouble to deny, that the judges fall under the same deacriptiorj ; and I believe, that the gentleman wHl find k difficuit lo shew, that in any other manner they are privdtged, 1 did not^uppose, '^kat this argument was so much addressed to the understanding of gentlemen upon this door, as to the prejudices and passions of people out of doors. ' _ It was urged with sonie impression by the honorable member froi*- yirgmia, to whom I last referred, that 'he pofition that the office of a judge might be taken from him by law, was no:: a new do6trine. That It was estzibiishcd by the very ad now designed to be repealed, which was described 11^ glowing language to have iniiiaed a gapinp- wound os the conlutution, and to have 11 ained with Its blood th? pa^-es of 5ur Statute book. It shall be my task, sir, to close this gaping vi^ound, and to wash from the p?,ges of our Statute-book, the b*ood with which they were stamed. It will be an easy cask to diew to yau th? consu'tutiom Without a weund, and the Statute book v^ithouta -^ti^in. It is, sir, the 27th scc. of the bill of the lail session, which the ho- norable member considers as having inflided the ghaitiy wound on the constitfution, of which he has lb ktliiigiy fpolcen. That season abo, l.sbes the ancient circuit courts. But, ^Ir, have we contended, or has the gentleman, shewn,, that the conflitution prohibits the abohtion of a court vi-hen you do not ma crially ^ffednrin aay degree impair the in- dependence of a judge. A court is nothing moretnun a place where a judge isdirefted to discharge ceitain ciutic-s. There is no doubt, you may erea a new court and direa it to be holden by a judcre of the su preme or cf the distria ^ourls. And.u it ehoula aiurwlirda fee your L S* A |)teasiJ3rct6"'ab«ilis}-it!Tat court, it cannot be sai J, t^s.t you deftrny t|(fi . ■offices of the jp.clgfs By whoin it was appointed that tbe coprt should be liolden. TbiKit was dire ft ed bf t^c origiins] judicial Isw, tfiat a circuit coort flotiH beholden at ^ork town, ia tbe diftrifSi of Penneylvaiiiii. 'ihia gcurt was afterwards abolished, but it vas nevtr imagined, that tlie office ©f any judge was afTeded. Let n-.e suppose that a state is divided intp ' two didiicfs, and diftiicl courts tstahliided in ejirh, tut t%zt one judg? isappointed by iavs' to discliarge the judicial duties in both coiTts, Tixe arrangement '$ afterwards foiind ia(^onyeriient and one pf the cpnrts is a- iioh"shed. In this C3se will it be said, that the ofiice of the judge is de- f.royed, or liisincppendence aftscted ? The error, into whi^ h genflerojen have, fallen on this su^j- d, has arisen frpm their taking for granted, wh^X ^hey have not attempted to prove,, and v/nat cannot be suppprted. l>.at the office of a judj^e and any cpurt in which he olficiates are the sair^c thing It is moil clear, that a judge may be authorized and directed to petforiTi duties in several courts h that the discharging hiin frpni the p^r7 lorniance ©f duty in one of those courts cannot be deemed an^ infnnge- mmt of his office. The case of the la'e circuit courts as plainly illuss trates tbe argument, and as conclusive'y demonstrates its correftness, as any case which can be put. There were not nominally dsny judges pf the circuit court- I'he cou't "wasdiicded 'o be hoiden by the judg s cf the supreme and of the distri^ t courts. The judges of these two courts wee associated and du-ected to pes form certain duties, whea alTociated and in the performance of those duties, they w^re denominated the circuit fourt. Th s Courtis abojishcd ; the oniy consequen e is hat the judges of the supreme and diftrict courts are discharged Irom theperfprmiinceof the jomt duties which where previously imj-ceed tipon them. But is the ofsice of one judge of the supreme or of the dillrict courts infringed ?: Can any judge say, in consequence of the abolition of the circuit courts, I no longer hpid my office during good behavior ? On this ppmt it was further aliedged by the san.e honorable n^eniber, that the law of the laJt gellion inflcted another wound on the conhitution, by abolisuing the d s- trict coiiit of Kentucky and Tennessee. The gentleman was here de- ceived by the same iajlacy which mified him on the subject of the pirciiit courts. If he will give himself the trouble of caretuliy reviewing the provisions of the lav^, he will discern the sedulous attention ot the legisla-- tiire to avoid the infringement of the offices of those judges. X believe the gentleman wcRt so far as to charge us with appoir.ting by law those judges to new office?. The lawrefen-ed to. establishes ^ C'rcuit, com.pr^hending Kentucky, Tennessee and th^ district of Ohio. The duties of the court of this cir- cuit arcdiretted to be perfonred by a circuit judge and the two diftriA iudpes of Kentucky and Tennessee. Surely it is cpnipttent for the le- gislature tocreste a q9^rt, and to dlred that it shall be hoiden by any ef the exilting judges. Jf the legislature had dene with resj'ed to ail the district judges, what they have done v^nh rtspeci to tho;e of Ken- tuclcy and 'i'ennessee,! am quite certain, that the prei:ent ctjettKn would kavt. appeared entirely grwuiidiess. Had they diieded, that all the cir-? t 39 1 #liit 6durt9-«lioul,d beheld b'j the fes^i^lve ainiriSi ysAge^ ■ -^ihih i^ eireuits,'. gdntJemerf would hay«c'e?iriy seen, that this, wns dslj.ail'impo- jsit'Tpn of a iijfw duty and not -in app;-*irttaient t;^ a nsw o„?ice. it will Be recoI!e£led, that ui^dcr the old establishment, the distrltl judges of Ke'ntueky aad Teuaessee vrere invested generally with the powers of thi^ circuit judges. The ancieat powers of those jddges arc Icarcely varied by the lace law, aadth>- amount of the ciiaage is. thatt'iej Urc directed to cKefcise those powers in a coiirt formerly called a diilricl, but now a circuit Coidrt, and -at other places than those to which they were formerly coahaed.. But the di-itrirl: judge nominsHy remains, hi* o'tice' both ijoiti'na'ly and gubllantiaily exifts, Sc he holds it riow as he did before, during good, behavioar, I will refer ger.tlenien to different pra- visions in the late law, which wi I shelw beyond denial, that the egislature carei'ully and pointedly avoicied the ail of abolishfag the o^'c^j of those j.ydges. ^ ^ , ^ _ ^ ... The 7th seiSi of the lav/ provides that the coitrt of the 6th circuit slia'l bdcdmtposed of a circuit judge ^' ai'l the judged of the d'lstriil courts of Ken.tiicicy.and Tenriessee.*' It wa;s ffr.erwards declared in the same sec-» tian, *' that thei-e shall be appointed in the 6th circuity a judge of the iTnited btstes to be called a cir'cuit jwdge, who, together with ths dlyirki judge of Tennessee and Kentucky shall ho'd the circiiit courts hereby di-' 1-eiled to be hodden within the same circuit " Artd finally, in the same «ettioH it is provided> "that lohenev^r the office ^f distrld judge in tht dh- triits of Itentticky and Tennessee respectively hall bec97ne v icant such vacan-" cies shall respeitive'y be supplied by the appointnteiit of two additional judges ill the said circuit,' who, together with ciruit iudge hrft aforesaidp ehall compose the circuit court of the said circuit." When the express Iam- guage of the law aiHrnns the Existence of the office clad of the oiiicer, hy. providing for the contingency of the oScer ceasing to fill the o'iiice,wit!a what face can' gentlemen contend that the o^ce is abolished ? They who are not satisfied upon this point, I despair of convincing upon any other*. Upon the niain question, whethei" the judges hold their offices at ths will of the' legislature,' an argument of great weight and according to nsy' humible judgmenc, of irresistible force, still remains. The legislatve power of the government is not absolute but limited. If it be doubtful whether the legislature can do what the constitutiija does not explicitly autiiorize ; yet there can be no question, that they, cannot do what the constitution expressly prohibits- To maiataii!,' . therefore, the constitution the judges are a check upon tha legislature*. This docirine I know is denied, and it is therefore incumbent upon mc t© show that it is sound. ! : It Avas once thought by gentlemen who now deny 'he principle, that the safety of the cidiea and of the states, rested upoti the power of tfec, Judges to declare an unconstitutional lav? void. How vasa is a paperrc" stricHtsin if it confers neither power nor right. Of what importanr-e is k to say. Congress ai-e prohibited from doing certain adis, if no lep-itimitfi authority e.-asts in the country to decide whether an aft done is a prohibit t.»d act ? Do gentlemen perceive the consequences which .would fiiUoiir from establishing the principle, that Congress have the estcluslvc rigit tw dtJcideupoatheirovrn pswer^^ ^kh priccipie. adwitieii, :ti«^.aay. t 40 J cbrist'tit '5ri rems-'n ? Does not the pow^r of the legislature becbme ati- •*olu':e ' nd on-'sipotent ? Can you talk to them of transgresang their power?; when no one has a I'ight to judge of those powers but themselves ? Thfy do what is notauthorizedj they do v.'hat-^G ihh;b'ted, nay' at every. iter they t'.aii.p e the constitution underfoot ; yet the'r' acts are lawful- iiTid binding. ai'd it iS Reason to resist them. How 'U, sir^ do tile dobtrines and professions of these gentlemen agreci They tell lis thty are frieTidij* to fhe existence of the Sates ; that Hey are the friends of federative, btit Ihe enem'es of a cona-dlidated general government, dndyet, air, to accom-V |)!lsh S paitr\r ofeject. they are \vii|ingto settle a printiple which, beiyonci aU dcubt. wou'd eve;i':ually plant a consolidated government, withuii-' limited power upon the riiins of the state irovernmentsi '■ ^" Nothintr can be more absiJrd th^n to coiitet.d that there is a praftical |-estraint upon a poHtica! body who are answerable to none but them* selves for the violation of the tescraint, and who Can derive from the- very aft of violation, lindtnliible justification of their ccudu^t. if, Mr. Chairman, you snean to have a constitution, ybii truist (fiscd'^er; k power to which the aicknowiedged right is attached of pronouticing' the invalidity of the ails of the legislature which contravene t!ie ijistra- ment. ^ - ' • -■ i ■, ^ ' Does thepo\ver reside in the states ? Has the legislature 6f a state a right to declare an att of congress void ? Thi* would be erring upoii the opposite extreme. It would be placing the general government at the feet of the state governments. It would be allowing one nieHiber of the union to concroul all the rest. It woiild inevitably lead to civil' dissention and a dissolution of the general government* Will ft be pre- tended thst the state coiirts have the exclusive right of deciding upoi> i"be validity of our laws? ^ I adm.it they have the righ^ to declare a;n a6c of congress v'oid; iBnt this right they fcnjoy in prat'tice, arid it ever essentially must exist subjedt ro the levision aind coniroul of the tourts of the United State:. If the Staie courts definitively poDjes,s the right of declaring the invalidity of the laws of this government, it would bring iis in subjedion to ttie states. The iudges of those courts being bound by the laws of the state, if a st?-te "declared an atl of congress unconstitutional* the Idw of the state ^ould oblige i'& couns to deterrnine the law ir.valid. This principle ■would alio destroy the uniforrnity of obligation upon all tne states- ^^hich should attend every law of thia government, if a law vs'cre de- clared void iirone state, it would exempt the citizens of that state from iis optration, whiist cbedience was yielded to it in the other states. I go farther, and say, ii the states or state courts had a final power of annulling the al:S of this government, its miserable and precarious cx" istence would not be wortli t; e double of a momei.'t to preserve. ■ It would endure but a short time, as a subjeft of derision, and wafting ifito an empty shadow wcu d quickly vanish frofli oitr sight. Lfet me now ask if the poAver to decide upon the validity of our laws residesi Avith the people. Gentlemen cannot deny this right to the sovereigni people. I admit they possess it. But if at the same time it dots not be- belongto the covr s of the U. States, where does it lead the people ? It leads them to the gallows. Let us suppose thai congress, foigctfalofthe [41 1 ■jnits of their authontr, pass an unconfticutional Inrr, They lay a 6:w re£l tax upon one state 8s impose none upon the others. The people of the state taxed, contest the validity of the law. They forcibly resist its execatioti. They are brought by the executive authority before thii courts upon charges of treason. The law is unconstitutional, the people; have done right, but the court are bound by the la\T and obliged to pronounce upon them the sentence which it infiifts. Deny to the courts of the Uniied States, the power of judging upon the constitu- tionality of oar laws, and it is vain to talk of its existing elsewhere. The infratlors of the laws are brought before these eoarta, & if the courts are implicitly bound, the invalid'ty of the laws can be no defence. There is. however, Mr. Chairman, still a stronger ground of argument upoit thi«suSject. I Ihall select one or two cases to illu (Irate it. Congress ara prohibited from paiTing a bill of attainder ; it is also declared in the con- stitution that • BO attainder of treason shall work corruption of bi&od or forfeiture, except during the life of the^ party attainted.' Let x^j suppose that congress pais a bill of attainder, or they enact that any one attainted of treason sliall forfeit to the use of the United States all the •itate which be held in any L^nds or tenements. The party attainted is seized and brought before a federal court, and an award of execution prayed againft him. He opens the conititutioii and points to this line * no biii of attainder or cx»post facto law shall be passed,' The attorney for the Uniwed States reads the bill of at- tainder. The court are bound to decide, but they have only the alternative o£ pronouncing the law or the constitiuion invalid. It is left to them only to say that the law vacates the constitution, or the constitution avoids th» law. So in the other case stated, the heir after the death of his ances- tor, brings his ejeftrneot in one of t!)e courts of the United States t(j recover his inheritance. The law by which it is contiscated is shey,-r» 1 he constitution gave no power to pass sach a la>v. On the contrary it expressly denied it to government. 1 he tide of the heir is rested on the- constitution, the tide of the government on the law. The cifcct ofona destroys the eifecl of the other ; the court must determine which la ef- feftual. There are many other cases, Mr. Chairman, of a similar nature to which I mi^ht allude. Theie is rhe ca e of die privile-^e of Habeas Cor- pus which cannot be suspended but in times of rebellion or invasiou Suppose a law prohibiting the isscing of the vtrit ar. a moment of pro- found peace. If in such case the writ were demanded of a court, tould they say, it is true the legislature were reitrained from passing the- law, suspending the privilege of this writ, at such a time as that wiiich now exists, but their mighty power has broken the bonds of the coa- stitution. and fettered the authority of the court. I am not. Sir, dis-. posed to vaunt, but standing on ihis ground I throw the gauntlet tu any cham)ion upon the other sidr'. I call upon them to maintain, that sn a coUirion between a law hikI the constjtaci.)ii, i-he judges are bound to support the law, and annul th« conlVuution. Can tiie gentlemeu relieve thenase'ves from this dilemma ? Wui they say, tho' a judge baa ao power to prorwua^* a law void, he has a pcwci" to declare ths cjxj. vStitutiuu invalid. F I 4S- J ^ The dodr^ne fbr which 1 am contencling is vpz ouiy c'.?a.rlY ini-era. blfc from the piain language of the C' RSLilution, but bylaw lias been e:t- { lessly declari;d and establ, [lied in practice since the exidence of the g-overnnuTit, The 2d seclipn ot the 3d article of the ccnstiution expressly extends t'le jadiciai power U> all cases arising urdtr the constitution, the laws, 5:c. The provis'on in the 2d cianse of the 6th 'article leaves nothing to doubr. '« l^hic. coiistaution and t/je ia-vjs of the United Stales lohu-b 'shall be made in pursuance thereof- ^c, shall be ihe supreme law of the iard;- The consiitution k absolutely the supreme law. Not lo of the ads of the legiakture - ,Such only are the law of the land as arc made In pursuance of the cowit'nvJ} on. I beg the indulg-enrt of the committee one moment, "d.ile .1 read the /Mllowin^^^ provision from tlie 25t!i seft. of the judicial atl of the year 'I7S9 ; *' A final judgment or decree in anv siut in the highest court of law or equity of a ftate in which a decision in the suit coidd be had^ •where is drapn in queslloji the ■val'idily of a treaty or statute of or anau^ ihor'ity exercised under the United States, ?.vA the decision is against their maUJity, "(Jfc. maybe re. examined and rovcr-^edor qljirmcd'm the lupreme court of the United States upon a writ of error."— Thus, as early as tiie year 1 f 89, among the firll adts of the government, the legislature explicit- ly reccgnized the right of a state court to decUre a treaty, a statute, and iin authority exercisjd under the United States void, subject, to the re- vir-ion of the sv.preme court of the United States ; and it has expressly given tlie Rnal power to the supreme court to affirm a judgment which is agciinst the validity either ox^a treaty, statute or ari authority of tht; jT^ovemm'^nt. «^ " I hnmbly trust, Mr, Chairman, that I have given abundsnt proofs fron::^ the nature of oiir govei'nrnent,from the languaafe of the consiitution, ancJ from legislative acknowledgement, that the judges of our courts have the power to ;udr(f; a.ud dete.nii.ie upon the constitut onah'ty of our law. ' Ltt me CO '.V suppose that in our frarne of government the jydges are a check upov the iegiflature; that the constitution is deposited in their t''epjng„ V/ill you say afterwards that their existence depends upon the Ifr^islature ?'l'hat the bod/ whom they are to check has the powe^ to de- stroy thevi i' WiiJ you say that the constitution may be taken out; of thefr hands, Ly a pov/er the rnoil to be distrustedj because the only power, •which could violate it wir'i impunity? Can any thing be rnore absurd than to acni;t, that the judges are a check upon the legislature, and yet to contend that they e;;ift at' the will of the legislature ? A check must necessarily imply a power commensurate to its end. The political body idesigned to check another must he independeiitof it, otherwise there c,3« be no check. What check can there be when the p'wcj; desi^ne^tobe^ checked can annihilate the body y/hich is to restrain it ? I go farther, Mr. Chairman, and take a stronger ground. I say in ?he nature of things the dependence of the judges upon the legislature, arid their, right to declare the afts of the legistature void, are repugnant and cannot exist together. The doi?trine, sir, suppose^, two rights — first the right of the legislature to destroy the office of the judge,and the fight of the judge to vacate the att of the legish'.ture. You haVe «ii"ighi; C 43 3 to a'oQiTsli hj a law, the offices of the judges of the circuit courts.— T-hey have a ris;ht to declare your law void. It unavoidable follows in the ex«r erciseof these rights, either that you destroy their rights, or that they destroy yours. This doftrine is not an harmless absurdity, it is aniosl^ dangerous heresy. .It is a doftrine which cannot be practised without; producing iiot discord only, but hloodshed. If you pass the bill, upon your table the judges have a constitudcnal right to declare it void. I hope hey will have courage to exercila that right ; and if, sir, I aaical'", led upon to take my side, standing acquitted in my conscience and bc'p fore my God, of al,l raouves but the fjupport of the constitutJon of my country, I shall net tremble at the cons'rquences. The co'.istitution may have its enemies, hilt I know ihat it has also itg friends. I beg gentl, men tc pause t)efore they take this rash step. There are piaiay, very many who believe, if you strike this blow, you infliit 3. mortal w'ound on the constitution. There are many now willing to spill their blood to. defend that constitiuion. Are gentlemen disposed to risk the consequences ? Sir, I mean no threatg — I have no expedatioB oF aj palling the stout hearts of my adygrsaries ; but if gentlemen are re- gardless of themselves, let them consider their wives and children, theiv neighboiu-s and their fnend"?. Will they r.sk civil disseation ; will they hazard the welfare, will they jeopardize the peace of the country, to savs^ a paltiy sum of money, less than thirty thousand dcllars* Mr. Gnairmap, I am confident that the friends of this measure are not apprised of thp nature of its operatioHj nor sensible of the minchievouis f onsequcnces which are likely to attend it„ Sir, the morals of your people, the peace of the country, the stability of the governmex'^t, r,csf; upon thetnaintenance of the independence of the judiciaryo It is not of half the impprtance in England, that the judges should be independent of the crown, as it is with us, that they should be independent of the legis* lature. Am I asked, would you render the judges superior to the legis^ iature? .1 answer, no-, but co-ordinate.; Would you render them inde.,^ pendent of the legislature ? I answer, yes, independent of every power on earth, whjlg they behave themselves well. The esscntii^l inteiestsi, the permanent welfare of society require this independence, Not( sir, on account of. the judge 5 that is a small consideration, but oa account of thoje between whom he is to decide. You calculate on the weaknesse.^ of human nature;, and you suffer the judge to be dependant on no one, iest he should be partial to those on whom he depends. Jullice does not exist vvhere partiality prevails. A dependant judge cannot be iau partial. Independence is therefore essential to the purity of your judi^ ^ial tribunals. " Let it be remembered, that no power is so sensibly felt by society, as that of the judiciary. The Hfc and property of every ma.n, is liable to be in the hands of the judges. Is it not our great intereil, to place oui' judges upon such high ground, that no fear tan intirai.datej no hope can Seduce them? The present measures humbles them in the dull, it pros^ traies them at the feet of faftion, it renders them the tools of every dominant party. It is this effed which I deprecate, it is this conse- quence which I deeply deplore. What does reason, what does argumeuf a'vad, when party spirit presides ? Subjedycur bench to the intiuence ef this spirit, and justice bids a fiual adieu to your triijuuali. Wc are L 44 3 ?>tiked, sif, if the judges ire to be inuependent of thff people ? 1*!ie qt?e»» tion presents a ialse and deluGvc view. We are all the ptople. We are, JMid as long as wc enjoy our freedonij we (ball be divided into parcies. The true queftion is, shall the judici:;ry be permanent, or fiuftuate with the tide of public opinion ? I hcg, I implore gentleraen, to confidcr the n-pgnitude and value of the principle which they ?.re about to annihilate* If your judges are independent of political changes, they may have their preferences, but they ^vi!l not er.ter into the spirit of party. But let their exigence depend upon the support of the power of a certaiii set of jricn, and they cannot be impartial. 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