known from his infancy, and who left a lucrative practice, when he took a seat on the bench, could influence my vote, I should certainly vote against the passage of the bill. But, sir, shall friendship. shall respect for a worthy man, induce us to give a vote which we know to be wrong? Were it possible, we should not only despise ourselves, but every man of worth and candor would also despise us. Mr. Chairman, it was my intention when I rose, to have examined more particularly the Constitutional ground which the gentlemen on the other side have taken; but as I most cordially agree in the opinion delivered on this subject, by a very respectable member from Massachusetts, (Mr. BACON,) and as I also agree with the gentleman from Virginia, (Mr. GILES,) it would be needless to take up the time of the Committee in repeating arguments which have been some days delivered and remain yet to be answered. I beg pardon of the Committee for the time I have occupied-I did not expect to have detained them so long, but the importance of the subject, and the wide field into which it has been branched by those who preceded me, will be my apology. The further consideration of the bill was then postponed till to-morrow. WEDNESDAY, February 24. A memorial of sundry merchants and underwriters of the City and State of New York, was presented to the House and read, praying relief in the case of the capture and condemnation of certain vessels and their cargoes, of which the memo rialists are owners or assurers, by the cruisers and courts of the French Republic, during the late European war.-Referred H. OF R. cussed, that I should content myself with a silent vote, if the subject was of less importance. To this course I should be more inclined, as gentlemen on the other side of the House have already expressed an opinion that nothing new could be offered to the Committee, and manifested an uneasiness that the debate should be further protracted. But, sir, the man who deems this subject as important as I do-as one involving the dearest and best interests of our common country-will seek rather for an apology for silence than for speaking. Before I enter upon a distinct consideration of the two questions involved in this discussion, I hope the Committee will pardon me for adverting to the history of this bill in this House. When the bill first came from the Senate, a motion was made to refer it to a select committee, which had been appointed in this House on the subject of the Judiciary system of the United States. That motion I then supported, with an anxious hope that it might prevail. The gentleman from Virginia, (Mr. GILES,) being chairman, and myself a member of that committee, I felt extremely solicitous there to meet-to lay aside all party feelings or prejudices; to banish all considerations, when or how the act now proposed to be repealed, was passed; to confine ourselves to the inquiry whether the existing system does not afford to the citizens of the United States a fairer chance to obtain prompt and speedy justice in their courts, than the former system now proposed to be revived. But, sir, the chairman of that committee then told us, that a great Constitutional question had been raised; that such questions were improper for the consideration of select committees ; that a fortunate period had arrived for its discussion; that it was proper to be considered only in Committee of the Whole; and that it must be decided. A Message was received from the President of the United States, communicating a report of the Secretary of the Treasury on the subject of MaOn a subsequent occasion, when a motion was rine Hospitals, which appear to require Legislative made to postpone the consideration of this bill to attention; also, information respecting the situation a future day. the solicitude which I had felt to of seamen and boatmen frequenting the port of avoid an unnecessary decision of the fatal quesNew Orleans, and suffering there from sickness, tion was revived; my dormant hopes returned, and the want of accommodation. The Message fortified by petitions from respectable sources, inand documents accompanying it, were read, and forming us that the present organization of the ordered to be referred to the Committee of Com-courts, in one circuit at least, was not only supemerce and Manufactures. Resolved, That a committee be appointed to bring in a bill to alter the time of holding the Dis trict Court of Maine. Ordered. That Mr. WADSWORTH, Mr. CABELL, and Mr. VAN NESS, be appointed a committee, pursuant to the said resolution. JUDICIARY SYSTEM. rior to the old system, but absolutely necessary to the attainment of justice in that circuit. Ánimated with a hope, excited by those petitions; deeply impressed with a sense of the dangerous and deadly blow which I then was, and still am, persuaded the repeal of this law will give to the Constitution, I then expressed a wish, which, although it drew upon me from one gentleman a charge to delay and embarrass the business of the session, was the honest effusion of my heart; that an opportunity might still be given to ascertain whether the act proposed to be repealed is not what its title imports: "An act for the more convenient organization of the courts of the United Mr. GODDARD.-Mr. Chairman, the bill on your States." That our inquiries might still be contable having been so long before the Committee, fined to that question, and if the result of such and the principle of the first section, now under inquiries should prove to us that the courts as orconsideration, having been so fully and ably dis-ganized by the act, now proposed to be repealed, 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." were throughout the United States what these FEBRUARY, 1802. society in Virginia, but it is not such as the people of the United States meant to provide for themselves under that happy form of Government which they have adopted. In looking into the sixth article of the amendments to the Constitution, which have been adopted by the people, I find this expression of the public will," "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial," &c. If, sir, the old system is to be revived, what, let me ask, will be the condition of persons accused of crimes? And who may not be accused? It is acknowledged by those who advocate the repeal of this law, that under that system, owing to the vast distance which judges were obliged to travel, the After the repeated declarations of the two gen-rising of rivers, impassable roads, and various intlemen from Virginia, that the great Constitu- evitable accidents, judges could not, and frequenttional question must be decided, although in doing ly did not, arrive in time to hold a court. The it a judicial establishment may be abolished, same thing, owing to the same causes, will hapwhich is necessary to the administration of jus- pen hereafter. What will be the consequence? tice, those who oppose the passage of the bill Persons accused of crimes and confined in your might be excused from making any remarks on jails to await their trials, must continue perhaps the question of expediency. Yet, sir, lest silence in the confinement of a dungeon six months longer on that question should, by some others, be con- before they can have an opportunity of having strued into an admission that the new system is their guilt or innocence ascertained before a court not preferable to the old, now to be restored, I of law. What, under this system, becomes of the will take the liberty to submit a few remarks on right of the accused to a speedy trial, sacredly that question. guarantied to him by the Constitution? If innocert, you punish him; if guilty, you inflict a double punishment, one before, and one after conviction. This consideration alone, in a free country, ought to outweigh all arguments arising from the trifling additional expense to which we are subject by the act proposed to be repealed. But however important the speedy administration of justice in criminal prosecutions, that alone was not all which the citizens intended to secure to themselves when they adopted this Constitution. The speedy administration of justice in civil actions was then deemed important. The Convention of the State of Virginia, when this Constitution was adopted, proposed certain amendments to it, and, among others, a bill of rights. In that bill of rights I find the twelfth article expressed in this manner: "That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, and without sale; completely, and without denial; promptly, and without delay; and that all establishments or regula I am induced to believe that there must exist between the several gentlemen from Virginia, who have spoken on this subject and myself, some radical difference of opinion as to what is a due administration of justice in courts of law. One gentleman from Virginia (Mr. THOMPSON) expressed his astonishment at what he was pleased to call, this immense establishment. To prove its inutility, he declared that he came from a State where justice was "truly and speedily" administered, and produced to the Committee a document to show that there are now pending before a court in that State, in which only one old man sits as judge, no less than two thousand six hundred and twenty-seven causes undecided. On a former occasion, which has been alluded to, I took the liberty to suggest, as a reason for confining ourselves to an inquiry into the expediency of the measure only, that the organization of the courts, as it now exists, was calculated to carry justice home to every man's door; another gentleman from Virginia declared that to be the very reason why he should vote for the repeal of the law, intimating that we had too much Fede-tions, contravening these rights, are oppressive ral justice. I must believe that those gentlemen take, as the basis of their opinions, the position, that suits at law are evils in community, and infer that the organization of courts, which is best calculated to deter citizens from applying to them, is the best. Hold out to the citizens a prospect of an endless continuance of the evil, and they will not involve themselves in it. For, sir, what prospect of justice can that suitor promise himself who sees that two thousand six hundred and twenty-seven causes, which have been accumulating for ten or twelve years, must be decided before his can be attended to? This administration of justice may suit the state of and unjust." The Convention of North Carolina, copying after Virginia, adopted precisely the same amendments. Both those States then thought, that all establishments or regulations contravening the right of obtaining justice, promptly and without delay, were oppressive and unjust. Those amendments were proposed to the Constitution of the United States, and regarded the attainment of justice in the courts of the United States. Those States, then, were not afraid of a too prompt administration of federal justice. Now a system, which has confessedly been found to prevent courts from being holden, and to postpone suitors from term to term without trial, and which, FEBRUARY, 1802. Judiciary System. H. of R. from the very nature of its organization, will Another has found it in the tyranny which will often produce that effect, is to be restored; and be established, if you suffer the judges to test the one which all agree is calculated to insure a laws by the Constitution. Another, in the words speedy trial, is to be abolished. I am not disposed" to promote the welfare," in the preamble to the to dwell long upon this subject, not having been Constitution. Another. in an exposition of the a member of this House when the act now to be word "hold," connected with that clause of the repealed passed. But, sir, when I heard the ob- Constitution, which authorizes the President to jections to the old system, and the advantages of grant commissions. the new one, so fully stated by the gentleman from And last of all, the gentleman from Virginia, Delaware, (Mr. BAYARD.) when I found that the (Mr. R.) abandoning all these, has found it in the plan of separating entirely the supreme from the quo animo," as he expresses it, with which you circuit courts originated as early as the year sev-give your vote: erecting in every man's mind a enteen hundred and ninety, and was then recom-tribunal before which to test the constitutionality mended to Congress by the then Attorney Gen- of measures. The doctrine is-believe that you eral, (Mr. RANDOLPH.) as appears by his report, do not violate the Constitution, and it is not vioread yesterday by the gentleman from South Car-lated! This last position, whatever its merits, has olina, (Mr. HUGER;) when, as that gentleman has not novelty to recommend it. "As a man thinketh, truly observed, the document before us contains so is he," has been taken for the basis of many false only the business done by the judges of the su- speculations before this time. Instead of finding preme and district courts in the circuit courts, this plain language in any one part of the Constiand not the business of their own particular courts tution, ought not the various grounds which have also; when I reflect on the appellate jurisdiction been taken by the friends of the bill, to teach genof the Supreme Court, and the extreme absurdity tlemen to distrust the soundness of the doctrine of subjecting, in another place, the determina- which they wish to support? Shall I be told, in tions of the same men to the revision of them- answer to this, that those who oppose the bill selves, might I not rationally indulge the hope have taken grounds as various in their opposition that gentlemen would have been satisfied, that the to it? No, sir, we uniformly ground our arguJudicial establishment, as it now exists, does fur-ments on two plain and unequivocal sentences in the nish to the citizens a much fairer chance for the Constitution: "The judges both of the superior attainment of justice than the old one? and that and inferior courts shall hold their offices during they would have permitted the Constitutional good behaviour; and shall receive for their serquestion to have slept for the present? But, sir, vices a compensation, which shall not be diminishwe are compelled to consider whether the bill on ed during their continuance in office." Those who your table can pass without a violation of the Con- oppose, are indeed obliged to follow those who stitution. Before other considerations are attended support the bill, in their devious course; and find to, I hope I may be permitted to present to the arguments to answer the constructions, by which Committee one argument, derived from the pro- these words, which are truly plain and intelligible, gress of the bill itself. A gentleman from Mas-are attempted to be done away. But having been sachusetts, (Mr. BACON,) told us some days past, apprized by the gentleman from Virginia, that the that, on this subject, the Constitution speaks a great Constitutional question to be decided is, plain and intelligible language. Let me inquire whether the Judiciary is a co-ordinate or suborwhere gentlemen have found this plain and intel-dinate branch of our Government; and whether ligible language. One gentleman, taking for it is competent for the courts to decide upon the granted the position to be proved, and reasoning constitutionality of laws; and this bill having ab inconvenienti, has found it in the evil consequences, resulting from establishing a different doctrine:-"an army of unimpeachable judges, with salaries, and without offices." | been brought forward at a period, which gentlemen are pleased to call fortunate for that purpose, I hope I shall be excused for requesting the attention of the Committee for a few moments to this Another has found it. in a distinction between question. One gentleman, from Virginia, (Mr. supreme and inferior courts, derived from the RANDOLPH) having said he was not disposed to words "may" and "shall." Another, in the words, contend about the terms co-ordinate and subordi"from time to time." Another, in that clause nate, I am willing to substitute others. Is the Juof the Constitution, which authorizes Congress to diciary a distinct and independent branch of the establish tribunals inferior to the Supreme Courts Government, ordained and established by the Consupplying the word abolish, omitted by the Constitution as such? In examining this question, I vention which framed the instrument. Another, in a discovery, that misbehaviour is no crime in a judge, for which he can be impeached; and therefore the Legislature must, ex necessitate rei, possess the power of removing judges from office. Another has found the language in "the will of the people," not literally expressed in their written Constitution, but in their elections, in a change of rulers; believing, I presume, that the vox populi is vox dei, and that human, must yield to divine laws and constitutions. may be permitted to inquire, whether it is competent for the judges to pronounce on the constitutionality of your laws. One gentleman from Virginia (Mr. GILES) seemed disposed to waive this inquiry, probably in consequence of the sentiments of a different kind, avowed by his friend from Massachusetts, (Mr. BACON,) yet it deserves to be considered; and that gentleman could not suffer it to pass in silence, but charged the claim of such power to the judges as one of their crimes. Although proving this, does not, I admit, prove that the judges of our courts are, by the Constitution, rendered independent of the Legislative power; yet it furnishes a strong reason for giving to that instrument, if it will bear it, such a construction as will make them so. Judges dependent on the Legislature for their continuance in office, for the continuance of their offices, or for a continuance of their salary, cannot be expected to decide against the wishes of those on whom they depend. Gentlemen ask, where we find in the Constitution a power given to the judges to decide against the constitutionality of laws? I answer, in the sixth article, these words: "This 'Constitution and the laws of the United States, 'which shall be made in pursuance thereof, and 'all treaties made, or which shall be made, under 'the authority of the United States, shall be the supreme law of the land." The judges are not only sworn to support the Constitution, but their oath of office binds them to judge "agreeably to the Constitution and the laws." The expression, supreme law of the land," imports inferior and subordinate laws. What are those laws, unless acts of Congress? The expression respecting laws made pursuant to the Constitution, necessarily implies that laws may be made which will not be pursuant to that instrument. Such are not the supreme law of the land. They are not law. Shall not the judges when called upon to decide if, in their opinion, a bill should be passed by Congress against the Constitution which assumes the form of a law, declare it, I will not say null and void, if gentleman dislike those terms, but to be no law?-not being made pursuant to the power delegated to Congress by the Constitution. In the case of Vanhorne vs. Dorrance, decided in the circuit court for the district of Pennsylvania, reported in Dallas's Reports, Judge Patterson is made to say: FEBRUARY, 1602. Judge, speaking of an act of the Legislature of Pennsylvania, upon the constitutionality of which he was then deciding, says: "If this be the legislation of a Republican Government, in which the preservation of private property is made secure by the Constitution, I ask, wherein it dif fers from the mandate of an Asiatic Prince? Omnipotence in legislation is despotism. According to this doctrine, we have nothing we can call our own, or are sure of for a moment; we are all tenants at will, and hold our property at the mere pleasure of the Legisla ture. Wretched situation, precarious tenure! And yet we boast of property and its security, of laws, ef courts, of constitutions, and call ourselves free!" Before I lay aside this case, I will take the liberty to read the remarks of the same Judge, respecting the tribunals of justice: tected, and governed by general, known, and establish"The rights of private property are regulated, proed laws, and decided upon by general, known, and established tribunals-laws and tribunals not made and created on an instant exigency, or an urgent emergency, to serve a present term or the interest of a moment. Their operation and influence are equal and universal; they press alike on all. Hence security and safety, tranquillity and peace. One man is not afraid of an other, and no man afraid of the Legislature." In another case, reported in the same book, Judge Iredell, speaking of Congress, says: "Upon this authority, there is, that I know, but one limit, that is, that they shall not exceed their authority. If they do, I have no hesitation to say that an act to that effect would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law, paramount to all others, which we are not only bound to consult, but sworn to observe." In the case of Bull and wife against Calder and wife, as well as in several other cases, the same "What is a Constitution? It is the form of Gov-doctrine is maintained by the Judges of the Suernment delineated by the mighty hand of the people, preme Court. And, sir, it is to this doctrine that we owe our liberty-which consists in security to our persons, our property, and reputation. And will the gentleman from Virginia impute the maintaining of this doctrine to the judges as a crime? Is this the question to be decided? Are we to show our control over the courts, to repeal this law, and put the judges down? Let it be remembered that, in these decisions, the judges were not "claiming powers," as the gentleman from Virginia has been pleased to express it, but solemnly deciding between citizen and citizen, the rights of private property. And let us arrogate to ourselves as much wisdom as we please, who, let me ask, are most competent to decide correctly important questions arising under the Constitu tion, our judges or our legislators? Legislatures will, in violent times, enact laws manifestly unjust, oppressive, and unconstitutional; and that too, under the specious pretext of relieving the burdens of the people. Such laws, it is the business of the judges, elevated above the influence of party, to control. Let me mention an instance: Previous to the adoption of this Constitution, and during the time of the paper-money system of the In another part of the same case, the same State of Rhode Island, an act was passed by the in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke, must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution; they derive their power from the Constitution; it is their commission; and therefore all their acts must be conformable to it, or else they will be void. The Constitution is the work and will of the people themselves in their original, sovereign, and unlimited capacity. The one is the work of the creator and the other of the creature. The Constitution fixes limits to the exercise of Legislative authority, and prescribes the orbit within which it must move. In short, the Constitution is the sun of the political system around which all Legislative, Executive, and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt that every act of the Legislature repugnant to the Constitution is absolutely void." Legislature of that State, subjecting to a penalty any person who should refuse that money, then in a very depreciated state, for articles offered for sale in the market; and a new and summary mode of prosecution and trial was provided. The money was offered to a butcher in the market for his meat; it was refused. An action was brought to recover the penalty, and I now see in his place an honorable member of this House, then a judge of the supreme court of that State, who concurred with the rest of the judges of that court in declaring the law to be unconstitutional and void. H. of R. long as the office continues. Let me ask gentlemen. if. upon their construction, that you may abolish the office, this end is really attained? In what consists the independence of a judge? It consists in having his mind elevated above the fear of any evil consequence resulting to him from rendering upright and impartial judgments; in his being so situated as not to have his mind wrought upon, directly or indirectly, by any other considerations than those arising from the justice of the causes which he is about to decide. Considering the infirmities of human nature, the framers of the Constitution supposed it necessary, in order to secure an administration entirely impartial, that the judge should know that, let him decide as he will, provided he acts honestly, he shall not be deprived of his office, nor suffer a diminution of his salary. The consequence was, that the judges were summoned to appear immediately before the Legislature to answer for their conduct, and it was with the greatest difficulty that the Legislature were prevented from dismissing them instantly from office. I mention this to show, that such has been, and such will be, the conduct of Legis- Here, let me ask, what difference in effect there lative bodies. Such ought always to be the con- can be upon the mind of a judge, while in the duct of judges, and this can with certainty be administration of justice, to know that, in conseeffected in no other way than by rendering themquence of the decision which he is about to make, independent of the Legislature, subject only to his office will be taken from him, or he taken removal by impeachment. But, sir, I beg leave from his office? Will not the effect be precisely again to recur to the amendments which were the same in one case as the other? In either case proposed by certain States to the Constitution, at the office and the judge are separated from each the time of its adoption, to show what was the other. Upon the construction given to this part sense of those States, at that time, on the import- of the Constitution by the friends to the bill, the ance of the independence of the Judiciary to the judge is not to be turned out of office, nor his salliberties of the people of this country. In the ary diminished, lest his independence should be declaration of rights proposed by the Convention impaired; and yet he is to cease to exercise judiof the State of Virginia, I find the fifth article is cial functions, and to cease to receive any salary in these words, "that the Legislative, Executive, if he decides against the wishes of the Legislaand Judiciary powers of Government, should be ture-and still be independent! If the Constituseparate and distinct, and that the members of the tion meant to secure the independence of the two first may be restrained from oppression by judges, while in office, let gentlemen apply to it feeling, and participating in, the public burdens, one rule of construction of instruments of writing; they should, at fixed periods, be reduced to a pri- so construe "ut res magis valeat quam pereat!' vate station, return into the mass of the people, And, then, let them ask themselves, if, upon their and the vacancies be supplied by certain and construction, the end which they acknowledge the regular elections." Then, sir, the doctrine of Constitution had in view is attained? But if the the responsibility of the judges to the will of the gentleman from Virginia (Mr. GILES) can avoid people, did not prevail in Virginia. It was not the first part of the sentence, "the judges shall then thought necessary that the judges should hold," &c., by considering hold, as implying tenreturn to the mass of the people, to restrain them ure under the President, and not operating as a from oppression. The Convention of the State limitation upon Legislative power; how does he of North Carolina recommended a bill of rights avoid the second: "They shall at stated times reas an amendment to the Constitution, containing ceive for their services a compensation which precisely the same words; and to render the judges shall not be diminished," &c.? I am sensible it as independent as possible, the convention of each has been attempted, by saying that compensation of those States recommended also an amendment, is given for services rendered, and if you deprive that the salaries of the judges should neither be the judges of the power of rendering services, by increased nor diminished during their continuance abolishing their offices, the compensation ceases in office. Who, then, can say that a limitation of of course. But, I apprehend, you cannot entirely the Legislative power was not intended by those dispense with his services. If you abolish the who adopted the Constitution? and, sir, it was in-court in which he ordinarily administers justice, tended by those who framed the Constitution. he may still grant commissions of bankruptcy, Gentlemen admit that the words in the first sec-issue judicial writs, and perform various other tion, article third, of the Constitution, "The services. To my mind the plain language of the 'judges, both of the supreme and inferior courts, Constitution is this: Congress may "from time to 'shall hold their offices during good behaviour, time," as the exigencies of the country, arising and shall, at stated times, receive for their ser- from its increasing population, growing commerce, 'vice a compensation, which shall not be dimin- or other causes, shall require, ordain and estabished during their continuance in office," were lish such inferior courts as may be deemed necesdesigned to secure the independence of the judges sary. In the exercise of this power, the Constituwhile in the exercise of their official duties, as I tion supposes that a sound discretion will govern; |