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fice and the officer are inseparable for a certain time, different words are used. The President shall hold his office during the term of four years; the judge shall hold his office during good behaviour. The tenure of office in each case is included in the same words.

great and leading principles agreed upon by the people, we contend, was the independence of the judges. They calculated that the great good flowing from this principle would far outweigh any apprehension of the abuse of this power in giving birth to too many or improper judges. If, Mr. Chairman, I have perfectly comprehended the As to the other point, that it is an office created arguments of our opponents, they all converge to by law, and not by the Constitution, and therefore one or other of two points: 1st. That the words may be removed by a law, let this principle be in the Constitution refer exclusively to the Ex- tested by the Constitution itself, and not from anyecutive, and are meant to render the judges inde- thing out of it. I aver, that in every instance pendent of him only; the second point, which is where the Constitution has spoken of the continrather a subordinate one, operating in support of uance of any one thing, although the creation of the first, is that the office of judge is created by the particular object is optional with Congress, law, and not by the Constitution; that it is a crea- yet the moment they give it existence it is out of ture of the law, whose life and death is to proceed their power, and must continue during the time from the same hand. I will proceed to examine mentioned in the Constitution. Apply this printhese two points, giving my hearty assent to the ciple first to the salary of the Executive and acknowledgment of our opponents, that it is dan-judges. The salaries are created by law, and gerous to the liberties of the people to legislate upon constructive power.

when created, their continuance is fixed by the Constitution. Apply the principle to the memAs to the first point, I would ask on what part bers of this House. When the bill fixing the of the Constitution is this opinion founded? where ratio of representation was before us, could we is it so expressed? If there had been an express have fixed a ratio decreasing the present number provision that the Executive might remove offi- of representatives, and have made the law take cers at pleasure, there would be some weight in effect immediately, and thereby disqualified memthe argument, though far from being conclusive, bers now on the floor from taking their seats next that this clause was intended to prevent him from session, when they had been elected for two years? exercising a power in regard to the judges, which Yet their right to seats here was created by a law he was allowed to exercise as to all other officers. which was discretionary as to the number. ApWhen nothing of this appears on the face of the ply the principle to the Senators. New States Constitution, how can you infer it, for the pur- may be admitted by Congress into the Union; pose of making one implication assist you in mak- yet when the new States shall have been admiting another? You make words, which are gen- ted, and two Senators chosen in consequence of eral, apply to a part; by implication, you say that the law, can Congress repeal the law, dismember the power that has a right to create has a right to the Union in part, and turn out the Senators? destroy, if not prohibited. By this rule the Ex- The right of citizenship also is acquired by a law; ecutive can remove all officers of his own appoint- yet when strangers have become members of our ment. By the same rule of implication, Congress nation, in virtue of a law, can Congress repeal that can abolish all officers of their own creating, if law, and thereby disfranchise a part of her citithere is no restriction. In this way the Execu-zens? Yet in both of these cases it might be said tive and Congress have each of them the office in their power; the Executive can remove the man, Congress can remove the office, then comes in a general clause of the restriction, including both the man and the office, and to whom is it to refer? If words are the signs of ideas, to both most inevitably; and, besides, as a proof that it does not refer exclusively to the Executive, he is not named in the section; yet Congress are named, and acts to be done by Congress run all through it. In the first section of the third article, it is declared that "a judge shall hold his office during good behaviour." The office is an object of Legislative creation, and the thing thus to be created by the Legislature the judge is to hold for a certain time. If the object is to prevent the Executive from taking away the officer, leaving the office, a correct expression of that intention would have been, that the judges shall not be removed from office; and these words are used in the affirmative, when the officer and the office are to be separated, and the office left. [Here Mr. HEMPHILL read from the Constitution third section first article, No. 7, 1st section second article, No. 6, and fourth section second article.] But when the of

that they were the throes of a dying Administration to provide for its friends. The law also fixing the permanent seat of Government, agreeably to the Constitution, seems to afford an analogous case, and I question if it could be repealed, unless words mean anything, and then Congress can do anything.

To come to a right understanding of the Constitution, it will be necessary to inquire what was the generally received opinion about the time the Constitution was adopted. I have ever understood that there was no difference of opinion on this point; that the general opinion was, that the words in the Constitution rendered the judges independent of both the other branches of the Government. This appears from the debates in the Convention in Virginia to have been their opinion; it appears, also, from the strongest implication, to have been the opinion of the author of the Notes on Virginia. If we can receive no aid from any of these sources, we must take up the Constitution, and apply to it the general rules for the interpretation of solemn instruments of writing. If in this instrument we find one express and positive provision, it must have its full force, unless we

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should reside. "The Judiciary power of the United States shall be vested in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish;" meaning the power before given, which was discretionary as to number; the clause in the eighth section of the first article is brought here into view, and in the very next sentence the offices are positively fixed and limited. Here, then, is an express and positive provision, uncontradicted by any express declaration, or by any violent implication. It is said, that there are words of negation used as to the compensation of the judges, and why not to the offices? If the words had been: and shall at stated times receive for their services a compenman in his senses say that the compensation could be taken away during that continuance? Yet, although the compensation could not be taken away, it might be lessened, and the words of negation were to prevent that diminution; but as the legal signification of an office could not be lessened, the words there would have been surplusage.

find another provision equally positive, and so inconsistent, that one or the other must give way.. In the Constitution we find these words: "The judges, both of the supreme and inferior courts, 'shall hold their offices during good behaviour," without any other condition or qualification; take these words detached from any other part of the Constitution, and I ask, do they not contain an express and positive provision? If so, what part of the Constitution is so inconsistent as to change the nature of this provision from a positive into a conditional one, and, in substance, to add these words, viz: "on this condition, that Congress permit the office so long to remain." It is said. in the eighth section of the first article, that "Con'gress shall have power to constitute tribunals in-sation during their continuance in office-will any ferior to the Supreme Court." This power was necessary to be given, otherwise the tribunals could not have been constituted, and when constituted, the duration of the office is limited in another part of the Constitution; and any implied power therein contained cannot be inconsistent with an express provision; for a mere implication is never to take preference to a positive provision. The other words relied upon are contained in the first section of the third article. What is the meaning of the words, from time to time? They are used but in three parts of the Constitution, and when used they do not convey the idea of undoing what may be done. Indeed, they are used in cases where it is impracticable to undo what shall have been done. [Mr. H. here read the fifth section, first article. No. 3; ninth section, first article, No. 6; and the third section. second article.] What do these words mean in that part of the Constitution under this discussion? The Supreme Court had been mentioned in the second and third article; the Supreme Court, which implies that there should be but one. They were not used to give Congress power to constitute inferior courts, for that power had been previously given, and if the inferior courts, together with the offices of the judges, are, as is contended, subjects of ordinary legislation, those words were unnecessary to enlarge the power of Congress on them, for on all subjects of ordinary legislation, Congress have an unquestionable right to enact and repeal at pleasure. It is not said in the eighth section, first article, that Congress shall have power to borrow money from time to time, to regulate commerce from time to time, or to establish post offices and post roads from time to time; yet nobody doubts that Congress have a right to make and repeal laws on these subjects, when it may appear expedient; and the same power would have, extended to the clause giving power to constitute inferior tribunals, if there had been no restriction in any other part of the Constitution. As these words are unnecessary to give the power contended for, they must have some other meaning. The plain meaning is this: that these words, together with the first part of the section, were not used to give a power to constitute courts, for that power had been previously given; they were merely introduced to dispose of the Judiciary power, and to declare where it

But, Mr. Chairman, is it probable that the framers of the Constitution ever intended to invest Congress with a power to destroy the office of a judge, in a rising country like this, where all the various sources of litigation are daily increasing? They foresaw that new judges would be wanted from time to time, but they never could have pictured to themselves a necessity of dispensing with the old judges. If we were framing a Constitution this moment, if we had any regard for the independence of the judges, would we invest Congress with a power to remove them, or take away the offices? We could calculate with reasonable certainty, that if there should at any time be a necessity for their appointment, there would always in this country be a necessity for their continuance; and we could trust this power to one Legislature as confidently as to another. If the framers of the Constitution could have enter tained any suspicion that a Legislature, in 1801. would have created useless judges for party pur poses, with equal propriety they might have supposed that a Legislature, in 1802, would destroy useful judges for party purposes. But the independence of the Judicial department was the object. This was the invaluable principle, and not more liable to abuse than the other principles fixed by the Constitution, and there was no principle so necessary to be settled as the independence of the judges. If we are to argue from the abuse of power, what is there to prevent Congress from admitting into the Union more new States than would be for the advantage of the nation? The late Administration, with the consent of the Legislature of Massachusetts, might have erected the province of Maine into fifteen or twenty States. The fact is, if there is a necessity for a new State, at the time of its admission into the Union, the probability is, there will always be a necessity. So, if there is a necessity of a judge at the time of his appointment, the probability is that there will always be a necessity, and the Legislature

giving birth to one or the other, are the Constitutional judges of that necessity, and no other Legislature has a right to interfere. My opinion is, that the framers of the Constitution intended that the judges should be independent of both the other branches of Government; that they have spoken plainly and unequivocally; and that the moment that the judge is appointed, the office is ingrafted in, and becomes a part of the Constitution, and cannot be taken away without impairing the Constitution itself.

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with some exceptions as to appeals and writs of error; and the twenty-fourth section of the law of February 13, 1801, which abolishes the two district courts; transferred the Constitutional parts of the offices, to wit: all the power, authority, and jurisdiction of the said courts into the circuit courts; and by the seventh section of the same law, the district judges of Tennessee and Kentucky, with a circuit judge, are to hold the circuit courts; and in the same section it is expressly declared, that when the offices of the district judges, in the districts of Kentucky and Tennessee respectively, shall become vacant, such vacancies shall be supplied by the appointment of two additional circuit judges, which appointments, of course, must be made in the usual way. And in the third section of the same law, Congress have virtually acknowledged their want of power to take away the office of a judge, and have provided, that after the next vacancy in the Supreme Court, it shall consist of five justices only. And as to the additional salaries of the district judges, they will be presumed to be equal to the additional duties, until a complaint is made, and then the fact must be ascertained.

This law, then, Mr. Chairman, which expressly recognises the judge, which expressly continues his duties, and which expressly continues his salary, is likened to a law which destroys the office of a judge, takes away his duty, takes away his salary, and leaves his commission a blank piece of paper; and this is the rock on which gentlemen stand, when they triumphantly ask, were we the guardians of the Constitution when the first law passed?

With regard, Mr. Chairman, to the distinction that is taken between the supreme and inferior courts, for my own part I cannot see any force in the argument. Any person of common candor must acknowledge, when he reads the first section and second section of the third articles that there is as imperative an injunction to establish some inferior courts, as there is to establish one supreme court. It is said that the Supreme Court shall have appellate jurisdiction, and of course there must be inferior courts, from which the appeals are to be made, and the duration of office in both courts is contained in the same sentence and words; and it is absurd to suppose that the framers of the Constitution affixed a double meaning to these words. The reasons urged against our construction, apply as well to the Supreme Court as to the inferior courts. A dying Administration could provide for its friends by increasing the number of judges in the Supreme Court, with as much facility as by creating inferior tribunals. But, sir, if Congress have the power contended for, there is not a judge on the supreme bench who is not completely in their power. The Constitution does not say how many judges there shall be, so that you may remove all but one, or you may pass a law placing six new judges on the bench, by the side of the present judges, and then, for the good of the people, conclude that twelve judges are unnecessary, and repeal the law which created the first six judges, and the imperative words in the Constitution will be complied with; the Supreme Court being always in existence. I see nothing in the Constitution which prohibits Congress from changing the name of an inferior court, if by the same act the office with all that appertains to it is some where preserved. And that Congress have a right to transfer some of the duties of the judges from one tribunal to another, is clear and evident; it is incident to the power of constituting new tribunals; for when a new But, Mr. Chairman, a doctrine new and dancourt is created, some of the business which would gerous has began to unfold itself. It is said that have been cognizable in the old court, must be the Judiciary is a subordinate and not a co-orditransferred to the new tribunal. It was this kind nate branch of the Government, that the judges of power that Congress exercised in passing the have no right to declare a law to be unconstitulaw last session; but they did not touch the office, tional; that no such power is given to that branch which consists in certain powers, jurisdiction, and in the Constitution. Why, sir, it is nowhere deauthority, conferred on a particular person, re-clared that Congress have a right to exercise their quiring of him certain duties which may be exercised in a court bearing a different name from that of the judge. Under the old system the district judges sat in the circuit courts, the supreme judges sat in the circuit courts; and under the old system the district judges of Kentucky and Tennessee had the powers cognizable in a círcuit court,

Mr. Chairman, ingenuity has been exhausted in contriving cases wherein it is said our construction will not hold good. It is asked if, in the case of a war, a whole State should be ceded, if the offices of judges would remain? Certainly not; but here the provision of the Constitution would not be complied with, the whole strength of the nation would not be sufficient to protect it; yet it would be a case of necessity, calamity, or war, which no Constitution can provide against; and, in the case put, the most important part of the Constitution would not be complied with, which guaranties to each State in the Union a Republican form of Government; yet in that event the people of the ceded State might become the slaves of a tyrant.

judgment, or to consider the expediency of a measure; the Judiciary, from the nature of their institution, are to judge of the law and what is the law. The Constitution is paramount and supreme. The judge is bound by oath to support it. The Legislature have a right to exercise their judgment as to the constitutionality of a law on

its passage; but the Judiciary decide at last, and their decision is final. This doctrine is admitted in the debates of the Convention of Virginia-in the case of Vanhorne, lessee, vs. Dorrance. Judge Patterson las expressed the same opinion, when he could have had no view to this question:

"I hold it to be a position equally clear and sound, that in such a case, it will be the duty of the court to adhere to the Constitution and to declare the act null and void. It is an important principle, which, in the discussion of questions of this kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but co-ordinate branch of the Government."

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their permanency, will be likely to be cool, and not convict unless they are guilty. Thus the parts are interwoven, operating as checks and controls on each other; but once cut the ligament, and perhaps the dreadful consequences have not been too highly colored. The effect may not be immediate, but let the principle be practised upon by two or three changes of administration, and it will become as much a matter of course to remove the judges as the heads of departments, and in bad times the judges would be no better than a sword in the hands of a party, to put out of the way great and obnoxious characters for pretended

treasons.

The Chief Magistrate of Pennsylvania has re- The independence of the judges was a great cently expressed the same sentiment, and the cor-point gained by the people of England. While rectness of his legal opinions will not be called in question by any party; in assigning his reasons for not approving a law, he says:

"And I cannot, from a confidence in the legal knowledge, integrity, and fortitude of my former brethren in the Supreme Court, risk my character in a Judicial decision on this question, when I do not foresee any advantage to be derived to my country, from a possibility of success."

But, sir, if it is once established that the Judiciary is a subordinate and dependent branch of the Government, I acknowledge that they have no right to judge of the constitutionality of a law, or, if they have the power, they will be afraid to exercise it. Upon this principle, where will an influential partisan and an insignificant individual meet to adjust their claims? In this House, or in a tribunal under the influence of this House? Where will the powerful State of Virginia and the State of Delaware meet upon terms of equality; in this House, or in a tribunal under the immediate control of this House? Where could the Federal administration of justice in this country be deposited with more safety than where it is? Intrenched as our judges are, they can do but little harm, but much good; from their situation they can have no temptation to make inroads upon the rights of the people; there is no such thing as Judicial patronage; they can appoint no officers, collect no moneys, raise no armies, raise no fleets. They have nothing but their virtue and talents to recommend them to the people. If it is within the power of human contrivance to select a spot where the streams of justice will flow pure and uncontaminated, it is in a tribunal of independent judges.

The three grand branches of our Government are well arranged. The President has his proportionate weight in the Judiciary, by appointing the judges; when they are appointed they are independent, and in this situation are to guard the Legislature from making encroachments on the liberties of the people. The Legislature, in turn, have a check on them by bringing them to trial and punishment, if they should become corrupted; this trial is to commence in this House, which will always be a repository of a sufficiency of passion and spirit to commence the impeachment, if there is a reasonable cause; the trial is to be ended in the Senate, where the members, from

the tenure of office depended on the nod of the Crown, they supported the arbitrary measures of the King; in one instance they decided that the King had a right to levy ship-money, without the consent of Parliament or people; and many an instance might be brought to the recollection of this honorable Committee, where they determined through fear, and not from judgment. It is said they are not independent of Parliament. Why, sir, nothing is independent of Parliament; and there is not the same necessity there. There being no written constitution in England, the Judiciary forms no check upon Parliament; and, besides, our Government is not a copy of the British Government; and this is not the only solitary instance where we have outstripped, as it is called, our too favorite prototype. There is not a leading feature in the Constitution that bears testimony of any servile imitation; it is our opponents who wish to test our Constitution by the principles of the British Government; it is they who wish that a construction be put upon the Constitution by Congress, which shall be considered as the Constitution itself; and are unwilling that there should be any check to oppose it; and of course, every construction put on it by the different Legislatures, will exhibit the appearance of a new Constitution, a constitution to be tossed and blown about by every political breeze. The pow ers of Congress will be equal to the powers of the English Parliament, transcendant, splendid, and without control. I little expected that such lordly power would be grasped at by our plain Re publicans, who have no ambitious desires, and who wish rulers to be contented with humble prerogatives.

Mr. Chairman, when I reflect upon the intrinsic nature of the question, I am confounded and amazed; it is vast indeed-from a dread of its terrible consequences. Yet, in its nature, it consists in the open denial of the obvious meaning of a few words in the Constitution; we repeat these words, gentlemen deny their plain sense. We read "That the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour." Our opponents say that these words do not mean "that the judges both of the supreme and inferior courts shall hold their offi ces during good behaviour." The meaning of these words is entirely different; it is, in fact, the

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and bring in a bill or bills" for opening a navigable canal to connect the waters of Potomac river with those of the Eastern Branch thereof, through Tiber Creek, and the low lands at the foot of the Capitol Hill," in the room of Mr. SPRIGG, who resigned his seat in the House on the eleventh instant.

On motion, it was

Ordered, That Mr. BRENT be excused from serving on the committee appointed, on the eighth of December last," to inquire whether any, and, if any, what, alterations or amendments may be necessary in the existing government and laws of the District of Columbia, and to report by bill, or otherwise;" and that Mr. CAMPBELL be appointed of the said committee in his stead.

reverse; they do not infringe our power; they refer to the Executive; although the office to be holden is not of Executive creation, and he can neither make it nor destroy it: the thing to be holden during good behaviour, is an object of Legislative creation. Certainly our opponents cannot drive us out of the firm ground on which we stand, and tell us that these words are not in the Constitution. They are, and how are they to be got rid of? No other way, under Heaven, Mr. Chairman, than by a bold and arbitrary assertion that they do not bear their natural meaning; that they do not bear the same meaning which they bear in another part of the Constitution. The people have said that a judge shall hold his office until a certain event shall happen; the rulers say no, we will shorten the period, and this is not breaking the Constitution; or, in other words, the people have said that a judge shall hold his office during good behaviour; the rulers say, the meaning of that is, that the office can be taken away at any moment. Why, sir, what part of the Con- Another Message was received from the Presistitution will hold gentlemen? what words are in dent of the United States, transmitting a stateit that are strong enough, and what meaning can- ment of the expenses incurred by the United States not be as easily distorted and perverted? We have in their transactions with the Barbary Powers, a right to our seats here for two years, if we do and a roll of the persons having office or employnot behave disorderly; yet it might as well be ment under the United States. The Message said that the meaning of that is, that two-thirds was read, and, together with the documents accan expel the o her third at any moment, not-companying the same, ordered to lie on the table. withstanding their good behaviour. Our opponents complain of the want of power; that their power would be too much cramped and restrained from its natural freedom by our construction. Why, sir, that is the object of a written Constitution, to place objects out of the reach of Legislative power. It is its great and grand design.

I ask pardon of the Committee for detaining them so long. I ascribe no wicked motives to our opponents. I have the charity to believe that their motives are good and virtuous; yet I am confident, that through a mistaken zeal for the good of the people, they are going too far, and are destroying the Constitution of our country. The further consideratiou of the said bill was postponed till to-morrow.

WEDNESDAY, February 17.

A representation of sundry counsellors at law, practising in the Courts of the State of New Jersey, and in the Circuit Court of the United States for the District of New Jersey, was presented to the House and read, praying that the act of Congress, passed on the thirteenth of February, one thousand eight hundred and one, entitled "An act to provide for the more convenient organization of the Courts of the United States," may not be repealed, for the reasons specified in the said representation.-Referred to the Committee of the whole House to whom was committed, on the fourth instant, the bill sent from the Senate, entitled "An act to repeal certain acts respecting the organization of the Courts of the United States, and for other purposes."

Ordered, That Mr. DENNIS be added to the committee appointed, on the ninth instant, to prepare 7th CoN.-18

A Message was received from the President of the United States, transmitting the report of the Director of the Mint. The said Message, and the report referred to therein, were read, and ordered to lie on the table.

JUDICIARY SYSTEM.

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

Mr. THOMPSON.-I find the opinions I entertain, so extremely adverse to the sentiments yesterday expressed on this subject by the honorable gentleman from North Carolina, (Mr. HENDERSON,) who opened this debate, and the honorable gentleman from Pennsylvania, (Mr. HEMPHILL,) whose great ingenuity I feel pleasure in acknowledging, that I feel myself impelled to offer to the consideration of the Committee a few observations in reply to the arguments used by those gentlemen. But. Mr. Chairman, while I pay the tribute of my respect to the eloquence and ability which the gentleman from North Carolina has displayed in the discussion of this subject, I must pray that honorable gentleman to pardon me when I declare myself unable to follow him, when, soaring on fancy's airy pinion, he transported us across the Atlantic, and presented to our view, in the most vivid colors which language can portray, the spirit of innovation, sweeping morality and good order from the earth. Nor will I pretend, sir, that my humble genius will enable me to pursue him, when he forced this same spirit of innovation to mount the whirlwind and lash on the storm. But, sir, with such talents as I am endowed with, I have no objection to going into the consideration of the question before the Committee, and pursuing the order which the gentleman has had the goodness to suggest, as the most natural into which the subject can be divided—that