JANUARY, 1822.] DEBATES OF CONGRESS. Amendment to the Constitution. That this road, which he considered among the travelled. [SENATE. Resolved, That the appropriations of territory, for the purpose of education, should be made to those States in whose favor no such appropriations have been made, corresponding in a just proportion with Resolved, That the foregoing resolution be referred those heretofore made to other States in the Union. to a select committee, with instructions to report a bill pursuant thereto. Uniform System of Bankruptcy. Mr. LLOYD presented the memorial of the Chamber of Commerce of the city of Baltimore, praying for the passage of a law establishing a uniform system of bankruptcy; the memorial was read, and referred to the Committee on the Judiciary. MONDAY, January 14. Amendment to the Constitution. The Senate then proceeded, according to the order of the day, to the consideration of the following resolution, submitted by Mr. R. M. JOHNSON, of Kentucky, on the 12th of December: Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, That the following amendment to the Constitution of the United States be proposed to the Legislatures of the several States, which, when ratified by the Legislatures of three-fourths of the States, shall be valid, to all intents and purposes, as part of the said constitution: But, he added, that the road is now almost unfit for use; that the bridges had, from necessity, been made of green wood, and are decay"That, in all controversies where the judicial ing; and that, unless provision should be made for keeping them in repair, and removing the power of the United States shall be so construed as timber which had fallen in the road, it would to extend to any case in law or equity, arising under soon be abandoned: that the greater portion the constitution, the laws of the United States, or of the country through which it passes is a treaties made, or which shall be made, under their wilderness nearly uninhabited, owned by In-authority, and to which a State shall be a party; dians, and by the United States; and that, con- and in all controversies in which a State may desire sequently, it could only be repaired and pre- to become a party, in consequence of having the conserved by the authority of the General Govern-stitution or laws of such State questioned, the Senate of the United States shall have appellate jurisdiction." ment. Mr. J. said, that, as to the best mode of effecting the object in view, whether it should be accomplished by employing the troops of the United States, or by establishing a turnpike and fixing a toll, or by other means, he was not prepared to say; that perhaps it would be deemed most expedient to establish a turnpike, and to allow a toll; that he thought it a proper subject for the inquiry of a committee. THURSDAY, January 10. Mr. GAILLARD submitted the following motion for consideration: Amend the 22d rule for conducting business in the Senate, by striking out all after the word "Chair," and by inserting, in lieu thereof, the following: "And the Vice President, when indisposed at the Seat of Government, may name, in writing, a Senator who shall preside in his stead; in which case an entry thereof shall be made on the Journal of the Senate; but in no case shall any substitution extend beyond an adjournment." Mr. LLOYD submitted the following motion for consideration: VOL VII.-10 Mr. JOHNSON said, the Constitution of the United States contains a clause, prescribing the manner in which amendments may be obtained. This is conclusive evidence that the wise men who framed it were of opinion that experience would develop imperfections in the system, which might require a remedy. The models of antiquity, with all the improvements of modern times, in relation to confederated governments, were before them. The Amphyctionic Council, by which the republics of Greece were united; the Achæan league, which so long governed the cities of Achaia; the confederation of the Germanic Empire, and the Belgic confederacy, which prevailed in the provinces of the Netherlands, all furnished examples for their improvement. When the struggle for independence, which had been their bond of union, was past, and clashing interests began to provoke animosities, it was obvious to all, that, under the articles of the Old Confederation, the General Government was too feeble for the purposes of national SENATE.] Amendment to the Constitution. [JANUARY, 1822. prosperity; and all concurred in the sentiment, | gress, nor prohibited to the States, is reserved that some change was necessary. The only to the States respectively, or to the people; question was, how great that change should that the States are also supreme and independbe? The difficulty, and the sole difficulty, was, ent within the orbit of their powers. If, then, to determine the proper distribution of power. it is the attribute of sovereignty to judge of its How to divide the sovereignty between two own powers, where is the sovereignty of the distinct governments, deriving their authority States, if that judgment must be submitted to from the same source, each supreme within its the Federal judiciary? The argument is preown legitimate sphere of action, and yet so to cisely the same in both cases, and may be called regulate and define the power of both as to an argument in a circle. produce perfect concord, was the great political problem to be solved by the statesmen of that day. It was not to be expected that the first experiment would perfectly effect this object. If it was anticipated by any, disappointment has followed the utopian delusion. The highest tribute of respect, however, is due to the wisdom of the patriots who framed the constitution, in so arranging this complicated machinery of a sovereignty within sovereignties, as to admit of that degree of harmony which has prevailed; but there is a limit to the intel-to the created, so it is contended that the States lect of man. All that wisdom and patriotism could do, they have done; but imperfections which human sagacity could not foresee, were to be developed by experience, and the corrective applied by mutual consent. It is admitted by all, that the States and General Government possess concurrent powers; that they also possess powers exclusive of each other; and that the Federal Constitution prescribes limitations upon both. In this complex system, disorders are to be expected; some, of an incidental nature, not easily controlled; others, that admit a remedy. After an experience of thirty-two years, it becomes our imperious duty to begin this inquiry, relative to the conflicts between the Federal judiciary and the sovereignty of the States. These conflicts are become so frequent and alarming, that the public safety demands an investigation, that it may be determined where the error lies. Unless we point out the real difficulty, and ascertain the just claims of each party, we shall be overspread with Egyptian darkness. When the parties are not agreed upon the line which divides their powers, the question is, which shall preponderate, and which shall concede? The States claim authority which the Federal judiciary denies, and the Federal judiciary exercises powers which the States do not acknowledge to be legitimate. There is no umpire to decide between them; and the difficulty is, to determine which shall submit. It is contended on the one part, that, as the General Government was instituted for national purposes, its claims to the highest supremacy must be superior to those of the States; and that it is an essential attribute of national sovereignty, that its judiciary shall be the judge of its own powers, and shall have authority to overrule every other tribunal, according to its own sovereign will and pleasure. But this argument cuts like the two-edged sword, and furnishes a position quite as strong in favor of the States. It is not denied, that all power not delegated to Con | It is contended by some of the States, Virginia, for instance, that the States have superior claims to an exclusive decision in all cases of conflicting power. The States are the original fountain of power, a portion of which they have delegated and vested in a General Government, for objects common to all. The General Government is the creature of the States, and exists by their permission. Then, as it is a principle universally acknowledged, in religion and morality, that the creator is superior have the indubitable right of exclusive decision in all cases of conflict, whether they respect a violation of the delegated powers, or the exercise of that authority which is reserved to the States respectively, or to the people. To say the least of it, there is much plausibility in this argument. But, it involves a difficulty as to the manner in which this right of decision shall be exercised. If each State shall decide separately, confusion would probably arise from contradictory decisions on the same point, in different States; but even this objection may have more plausibility than substance. Should the States attempt to exercise any of the specific powers granted exclusively to Congress, or to arrest the General Government in the exercise of power expressly delegated, the consequence might be unfortunate; but, in reviewing the conduct of the States, and marking the particular points of contact, it does not appear, from the history of our Government, that the States have, in any one case, attempted this, though the Federal judiciary has assumed a guardianship over the States, even to the controlling of their peculiar municipal regulations. If the States have the right of decision, there is a difficulty in giving their decision an efficacious operation. If it belongs to them collectively, there must be a regular method of ascertaining and promulgating their decisions. In the cases of collision between Pennsylvania and the General Government, much was said and written respecting the rights of the parties, and the necessity of a tribunal that could remedy the evil. It appears, from the decisions of her State courts, the periodical publications, and official documents of that day, that Pennsylvania recognized and claimed an equality of right with the General Government, to decide in constitutional cases affecting her sovereignty; that, in serious collisions, an umpire was necessary; and that no tribunal was more proper than this body. This doctrine is universally acknowledged as a correct maxim JANUARY, 1822.] DEBATES OF CONGRESS. Amendment to the Constitution. betwixt civilized nations, and is sometimes re- | sorted to for the amicable settlement of disputes between them. Assuming the Pennsylvania position, and the conclusion is irresistible, that the parties being equally sovereign within their circle of power, it is a flagrant outrage to justice, a violation of every principle of equity, for one to arrogate to itself the exclusive power of judging in all cases of disagreement. [SENATE. furnishes us with memorable examples of the power in her bone and flesh of her flesh. The republics It is a principle interwoven both in the theory and practice of our Government, that every At this time there is, unfortunately, a want department which exercises political power shall of confidence in the Federal Judiciary, in cases be responsible to the people. Here lies our that involve political power; and this distrust safety and our strength. Representation and may be carried to other cases, such as the law-responsibility must go hand in hand, bone of yers call meum et tuum. It is the opinion of many eminent statesmen that there is a manifest disposition, on the part of the Federal Judiciary, to enlarge, to the utmost stretch of constitutional construction, the powers of the General Government, at least in that branch, and by consequence to abridge the jurisdiction of State tribunals. I do not assert this to be the fact; but, if it is not, we should adopt some method, if practicable, to remove these illfounded suspicions. The desire of extending our own power is a universal law in our nature, to which the just and the unjust, the wise and the foolish, are all subject, though in unequal degrees; and I do not design in any way to impugn the learned members of the bench, when I admit the possibility of the same propensity remaining with them. It has found its way to elevation in other countries, and to prevent its influence here, some rational method should be devised to define and regulate that power. Political power, properly divided into co-ordinate branches, and judiciously regulated, produces happy results-but, when sovereign and irresponsible, it carries in its train the wreck of human happiness-desolation marks its bloody progress, for with it moral and physical power are always blended. The blessings of a good government furnish themes of rejoicing and This exception may satisfy the mind praise; but the curses of a bad government bring sorrow to the heart. The history of na- that it was never designed to confide political tions furnishes us with instructive lessons, while or legislative power to that department, espewe trace the hand of tyranny in the fall of em- cially the power of repealing laws enacted by pires, but the love of power is a principle still the legislative departments, both of the General in operation, and no premonitions can teach us Government and the States. The execution of moderation. It begins with childhood, and the laws is the only power intended to be conIf the does not cease with age. It is the belligerent fided to the court; and this will furnish ample principle which predominates in the social cir- scope for the exercise of discretion. cle, and genders strife where perfect peace judges were content to confine their decisions to cases affecting property and punishing crimes should reign. It is the prolific source of war with independent communities, which has according to the laws, few would complain of spread desolation over countries and stained their responsibility. If bad laws are enacted, the whole world with blood. Uncontrolled, it the people will correct the evil; and if by an is inordinate ambition; properly regulated, it incorrect adjudication or misconstruction of is emulation. If we did not know this to be law, individual injury should be sustained, yet On this principle the character of man, delineated in all his his- the fundamental principles of our Government tory, we might indulge the hope of everlasting would not be endangered. repose, under our mild institutions. Happy alone can this kind of independence of the would be our lot, if every department should judges be tolerated with safety in a free GovThe members of the legislative deconfine itself to the faithful performance of its ernment. own functions, carefully avoiding all interfer- partment of our Government are directly reence with others, or even the exercise of doubt-sponsible to the people and to the Statesful power; but the history of the present times which responsibility is carefully preserved upon SENATE.] Amendment to the Constitution. [JANUARY, 1822. come general than with a large body, responsibility is necessary, or competency in some other body to reverse their destinies. Judges, like other men, have their political views. One may be friendly to consolidation; another may err on the opposite extreme, and a third may prefer that happy mediocrity, which is always safe, and generally salutary. When these are associated upon the bench, and each under the influence of his own partiality, there will inevitably be as different conclusions among them where State sovereignty is involved, or the ex the principle that the trustee may possibly abuse his trust; and, to remedy the evil, the people have wisely reserved the power in their own hands. When the sedition law was enacted, this law was applied. The President of the United States, the Governors of States, and the members of their Legislatures, all hold their offices for limited terms, that they may feel their responsibility to the people, from whom their power is derived, and for whose benefit it is exercised. Why are they not all elected for life, or during good behavior? The reason is obvious. Because they exercise political pow-tent of Federal jurisdiction is called in question, er, which may be abused. By corruption of motive, or by the indulgence of sentiments unfriendly to liberty, they may betray the trust reposed in them; and their amenability to their Sovereigns, the people, is the only sure safeguard of the rights of man. It then follows, inevitably, that the judiciary should be confined to the decision upon the laws, or that the judges should feel the same responsibility; and, if this is not done, some tribunal should be established, responsible to the people, to correct their aberrations. as if they were members of a legislative body. Why then should they be considered any more infallible, or their decisions any less subject to investigation and reversion? Besides the differences arising from political prepossessions, the various structures of the human mind will produce a variety of opinion. One may take an expansive view of a subject, and base his decision upon truth and justice; another may be, what is sometimes called a technical judge; and though of equal integrity, may conceive it his duty to stick to the bark of the case, and confine himself in all decisions to the forms of judicial proceedings. This difference in the or in a difference of conclusion. Courts, also, like cities and villages, or like legislative bodies, will sometimes have their leaders; and it may happen, that a single individual will be the prime cause of a decision to overturn the deliberate act of a whole State, or of the United States; yet we are admonished to receive their opinions as the ancients did the responses of the Delphic oracle; or the Jews, with more propriety, the communications from Heaven, delivered by Urim and Thummim, to the High Priest of God's chosen people from the sanctum sanctorum. Other causes of difference might be multiplied to a tedious extent; but enough has been said to show that judges, who, like other men, are subject to the frailties, the passions, the partialities, and antipathies incident to human nature, should not be exempted from responsibility on account of their superior integrity, learning, and capacity; or that their decisions should be subject to revision by some competent tribunal, responsible to the people. It is believed that this is the opinion of that great and good man who penned the Declaration of Independence, and who now enjoys, in the shades of Monticello, the blessings of the principles which it contains. It may be denied by some that the judiciary exercises legislative or judicial powers. If a judge can repeal a law of Congress, by declar-ganization of the mind must necessarily result ing it unconstitutional, is not this the exercise of political power? If he can declare the laws of a State unconstitutional and void, and, in one moment, subvert the deliberate policy of that State for twenty-four years, as in Kentucky, affecting its whole landed property, even to the mutilation of the tenure upon which it is held, and on which every paternal inheritance is founded; is not this the exercise of political power? All this they have done, and no earthly power can investigate or revoke their decisions. If this is not the exercise of political power, I would be gratified to learn the definition of the term, as contradistinguished from judicial power. If the exercise of such tremendous powers be legitimate, their acts, like those of all other trustees of power, should be subject to the sanction or revocation of the people; if not by a direct responsibility, yet by an appeal to a tribunal that is responsible. If, on the contrary, this exercise of power is an act of usurpation, the case is yet more alarming; for the judges hold their offices during good behavior, and bad opinion is not bad behavior, and the opinion of the court is a law, and above all other law. A judge can be removed by impeachment for treason and other high crimes and misdemeanors; and in case of impeachment by the other House, two-thirds of this body must concur to effect his removal. The difficulty of removing a judge in this way is such that it will seldom be attempted; and experience tells us it will more rarely succeed. It is not pretended that judges are worse than other men. I am proud to say, that no country was ever blessed with more talents or integrity upon the bench than this; but the judicial history of all civilized nations confirms the allegation, that, under the same circumstances, The passions and propensities of human na- judges are just like other men. The theory of ture, with all their imperfections, are alike com- our judiciary may teach us that "a judge is mon to every rank and condition; and to pre-just, a chancellor juster still;" but experience vent their ill effects in a little number, where teaches us, that perfection resides nowhere in any particular excitement is more likely to be- this world, no, not even on the bench. We JANUARY, 1822.] Amendment to the Constitution. [SENATE. to hold their offices during good behavior, with salaries fixed by law. The system was consummated in the reign of George III., by providing that the commission of the judge should not be vacated upon the demise of the king. But, even in Great Britain, the judges are less independent than here; for, by an address of a majority of both Houses of Parliament, they may be removed; here, an impeachment for malconduct by one House, sustained by two-thirds of the other, is the only thing that can effect their removal. Nor is their power so tran have borrowed from Great Britain the idea of judicial independence. Previous to the reign of William and Mary, the judges were tenants at the will of the monarch. The King, who was "more wise, more just, more learned, more every thing," was considered the fountain of justice, and it was his prerogative to administer it | to the people. In early times, he dispensed justice in his own person; but this being too laborious, he appointed his judges, and fixed their compensation. The tenure of their office and the amount of their salaries were alike dependent upon his pleasure. The creature was re-scendent in Great Britain, as to repeal an act of sponsible to his creator both for existence and Parliament by declaring it unconstitutional and support: and interest and necessity conspired void. We have improved upon their system of to induce obedience to his will. The judiciary irresponsibility, and enlarged their powers, thus became an instrument of cruelty in his without any of the reasons or benefits which hands. The legislature, the army, and the exist with them. Their object is to render the court, on many occasions, were alike the imple-judges independent of the monarch, that they ments of royal vengeance, to sustain the divine may protect the people from lawless acts of his right of kings. It was the judgment of a court despotic power. In this country, the people that doomed the immortal Socrates to drink the are the King; and the only object of rendering hemlock. When the Roman tyrant could no the judges independent of their sovereign aulonger use a hired soldiery to immolate the vic- thority, or the only benefit which can result tims of his jealousy, he resorted to courts of from it that I can conceive, is to protect the law. When Henry VIII., of England, would people from their own oppressors, themselves. exercise a cruel despotism under the forms of We have given our authority to the judiciary a free constitution, the army, the court, and the to control us, lest we shall enslave ourselves. Parliament, were the potent engines that sus- We transfer the power to them because we fear tained him. When Mary, his daughter, com- the consequence of holding it ourselves; and pelled the Protestants to seal their testimony at surrender our liberties, our lives, the disposition the stake, the court gave sanction to the mur- of our property, to the judiciary, to escape the derous deeds. Her sister and successor, Eliza- danger of oppressing ourselves. beth, created the court of high commission, and formally invested it with inquisitorial power. She also supported the arbitrary edicts of the Star Chamber. The Puritans, because obnoxious to the free exercise of the prerogatives of the Crown, were imprisoned and dispersed by process of law, and the judges were the supporters of her despotic power. When she would destroy her unfortunate kinswoman, the Queen of Scots, the judges were instructed to condemn her, and by their sentence she came to the block. This horrid deed was covered by the cloak of judicial proceedings. When Charles I. determined to change the religion of Scotland, he made use of the court of high commission to effect the object. By the same judicial power, the advocates for the doctrines of the reformation have so often been divested of their religious privileges, and doomed to seal with their blood that religion which bore them triumphantly through the vale of death. Are we choosing guardians to control us, and prevent us from destroying ourselves in our fits of lunacy? A maniac may surrender his rights for the preservation of his person from the freaks of his own madness; but the American people are not mad. Experience has proven them to be the safe depositories of their own power. They have wisely reserved it to themselves, and as wisely exercised it, except in this case; and it is believed that they may now safely make their voice to be heard in the judiciary. Why should they hold the controlling power in every other department of the Government? Vox populi, vox Dei; but if the voice of the people is the voice of God, what must the superior voice of a judge be? If, under a monarchical Government, an independent judiciary may stay the hand of despotic power, and protect the innocent from punishment; in this nation we have no monarch, no subjects. The Government and the people are one; and we ask not the guardian care of our superiors to bind our hands so that we cannot wound ourselves. Those facts are not exhibited to derogate from the character of the judiciary, but to show that no truth is more universally established in history; that no proposition can be more plainly demonstrated than this, that judges may oppress the people-that power cannot be safely confided anywhere without the guaran-Britain? History records the mournful fact tee of responsibility. The occurrences to which we have adverted, transpired previous to the memorable era in the British annals under William and Mary, when the judges were commissioned by their monarch But has this change in the judicial term, from tenancy at will to that of life, essentially changed the character of decisions in Great that, since the reign of William and Mary, the courts of Great Britain have invariably yielded obedience to the monarch's will, in criminal prosecutions. The banishment and death of many of the most distinguished of the friends of lib |