Article 3, Section 1

Document 21

Senate, Judiciary System

Jan. 1802Annals 11:25--28, 33, 38--40, 48--49, 85--86, 119--20, 139--42

[8 Jan.]

[Mr. Breckenridge:] The document before us shows that, at the passage of this act, the existing courts, not only from their number, but from the suits depending before them, were fully competent to a speedy decision of those suits. It shows, that on the 15th day of June last, there were depending in all the circuit courts, (that of Maryland only excepted, whose docket we have not been furnished with,) one thousand five hundred and thirty-nine suits. It shows that eight thousand two hundred and seventy-six suits of every description have come before those courts, in ten years and upwards. From this it appears, that the annual average amount of suits has been about eight hundred.

But sundry contingent things have conspired to swell the circuit court dockets. In Maryland, Virginia, and in all the Southern and Southwestern States, a great number of suits have been brought by British creditors; this species of controversy is nearly at an end.

In Pennsylvania, the docket has been swelled by prosecutions in consequence of the Western insurrection, by the disturbances in Bucks and Northampton counties; and by the sedition act. These I find amount in that State to two hundred and forty suits.

In Kentucky, non-resident land claimants have gone into the federal court from a temporary convenience: because, until within a year or two past, there existed no court of general jurisdiction co-extensive with the whole State. I find, too, that of the six hundred and odd suits which have been commenced there, one hundred and ninety-six of them have been prosecutions under the laws of the United States.

In most of the States there have been prosecutions under the sedition act. This source of litigation is, I trust, forever dried up. And, lastly, in all the States a number of suits have arisen under the excise law; which source of controversy will, I hope, before this session terminates, be also dried up.

But this same document discloses another important fact; which is, that notwithstanding all these untoward and temporary sources of federal adjudication, the suits in those courts are decreasing; for, from the dockets exhibited (except Kentucky and Tennessee, whose suits are summed up in the aggregate) it appears, that in 1799 there were one thousand two hundred and seventy-four, and in 1800 there were six hundred and eighty-seven suits commenced; showing a decrease of five hundred and eighty-seven suits.

Could it be necessary then to increase courts when suits were decreasing? Could it be necessary to multiply judges, when their duties were diminishing? And will I not be justified, therefore, in affirming, that the law was unnecessary, and that Congress acted under a mistaken impression, when they multiplied courts and judges at a time when litigation was actually decreasing?

But, sir, the decrease of business goes a small way in fixing my opinion on this subject. I am inclined to think, that so far from there having been a necessity at this time for an increase of courts and judges, that the time never will arrive when America will stand in need of thirty-eight federal judges. Look, sir, at your Constitution, and see the judicial power there consigned to federal courts, and seriously ask yourself, can there be fairly extracted from those powers subjects of litigation sufficient for six supreme and thirty-two inferior court judges? To me it appears impossible.

The judicial powers given to the federal courts were never intended by the Constitution to embrace, exclusively, subjects of litigation, which could, with propriety, be left with the State courts. Their jurisdiction was intended principally to extend to great national and foreign concerns. Except cases arising under the laws of the United States, I do not at present recollect but three or four kinds in which their power extends to subjects of litigation, in which private persons only are concerned. And can it be possible, that with a jurisdiction embracing so small a portion of private litigation, in a great part of which the State courts might, and ought to participate, that we can stand in need of thirty-eight judges, and expend in judiciary regulations the annual sum of $137,000?

No other country, whose regulations I have any knowledge of, furnishes an example of a system so prodigal and extensive. In England, whose courts are the boast, and said to be the security of the rights of the nation, every man knows there are but twelve judges and three principal courts. These courts embrace, in their original or appellate jurisdiction, almost the whole circle of human concerns.

The King's Bench and Common Pleas, which consist of four judges each, entertain all the common law suits of 40s. and upwards, originating among nine millions of the most commercial people in the world. They moreover revise the proceedings of not only all the petty courts of record in the Kingdom, even down to the courts of piepoudre, but also of the Court of King's Bench in Ireland; and these supreme courts, after centuries of experiment, are found to be fully competent to all the business of the Kingdom.

I will now inquire into the power of Congress to put down these additional courts and judges.

First, as to the courts, Congress are empowered by the Constitution "from time to time, to ordain and establish inferior courts." The act now under consideration, is a legislative construction of this clause in the Constitution, that Congress may abolish as well as create these judicial officers; because it does expressly, in the twenty-seventh section of the act, abolish the then existing inferior courts, for the purpose of making way for the present. This construction, I contend, is correct; but it is equally pertinent to my object, whether it be or be not. If it be correct, then the present inferior courts may be abolished as constitutionally as the last; if it be not, then the law for abolishing the former courts, and establishing the present, was unconstitutional, and consequently repealable.

But independent of this legislative construction, on which I do not found my opinion, nor mean to rely my argument, there is little doubt indeed, in my mind, as to the power of Congress on this law. The first section of the third article vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress may, from time to time, ordain and establish. By this clause Congress may, from time to time, establish inferior courts; but it is clearly a discretionary power, and they may not establish them. The language of the Constitution is very different when regulations are not left discretional. For example, "The trial," says the Constitution, "of all crimes (except in cases of impeachment) shall be by jury: representatives and direct taxes shall be apportioned according to numbers. All revenue bills shall originate in the House of Representatives," &c. It would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although Congress may, from time to time, establish inferior courts, yet, when established, that they shall not be abolished by a subsequent Congress possessing equal powers. It would be a paradox in legislation.

2d. As to the judges. The Judiciary department is so constructed as to be sufficiently secured against the improper influence of either the Executive or Legislative departments. The courts are organized and established by the Legislature, and the Executive creates the judges. Being thus organized, the Constitution affords the proper checks to secure their honesty and independence in office. It declares they shall not be removed from office during good behaviour; nor their salaries diminished during their continuance in office. From this it results, that a judge, after his appointment, is totally out of the power of the President, and his salary secured against legislative diminution, during his continuance in office. The first of these checks, which protects a judge in his office during good behaviour, applies to the President only, who would otherwise have possessed the power of removing him, like all other officers, at pleasure; and the other check, forbidding a diminution of their salaries, applies to the Legislature only. They are two separate and distinct checks, furnished by the Constitution against two distinct departments of the Government; and they are the only ones which are or ought to have been furnished on the subject.

But because the Constitution declares that a judge shall hold his office during good behaviour, can it be tortured to mean, that he shall hold his office after it is abolished? Can it mean, that his tenure should be limited by behaving well in an office which did not exist? Can it mean that an office may exist, although its duties are extinct? Can it mean, in short, that the shadow, to wit, the judge, can remain, when the substance, to wit, the office, is removed? It must have intended all these absurdities, or it must admit a construction which will avoid them.

The construction obviously is, that a judge should hold an existing office, so long as he did his duty in that office; and not that he should hold an office that did not exist, and perform duties not provided by law. Had the construction which I contend against been contemplated by those who framed the Constitution, it would have been necessary to have declared, explicitly, that the judges should hold their offices and their salaries during good behaviour.

Such a construction is not only irreconcileable with reason and propriety, but is repugnant to the principles of the Constitution. It is a principle of our Constitution, as well as of common honesty, that no man shall receive public money but in consideration of public services. Sinecure offices, therefore, are not permitted by our laws or Constitution. By this construction, complete sinecure offices will be created; hosts of Constitutional pensioners will be settled on us, and we cannot calculate how long. This is really creating a new species of public debt, not like any other of our debts; we cannot discharge the principal at any fixed time.

. . . . .

The opinion of Mr. Mason, therefore, was, that this Legislature have no right to repeal the judiciary law; for such an act would be in direct violation of the Constitution.

The Constitution says: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

Thus it says, "the judges shall hold their offices during good behaviour." How can this direction of the Constitution be complied with, if the Legislature shall, from session to session, repeal the law under which the office is held, and remove the office? He did not conceive that any words, which human ingenuity could devise, could more completely get over the remarks that had been made by the gentleman from Kentucky. But that gentleman says, that this provision of the Constitution applies exclusively to the President. He considers it as made to supersede the powers of the President to remove the judges. But could this have been the contemplation of the framers of the Constitution, when even the right of the President to remove officers at pleasure, was a matter of great doubt, and had divided in opinion our most enlightened citizens. Not that he stated this circumstance because he had doubts. He thought the President ought to have the right; but it did not emanate from the Constitution; was not expressly found in the Constitution, but sprang from Legislative construction.

Besides, if Congress have the right to repeal the whole of the law, they must possess the right to repeal a section of it. If so, they may repeal the law so far as it applies to a particular district, and thus get rid of an obnoxious judge. They may remove his office from him. Would it not be absurd still to say, that the removed judge held his office during good behaviour?

The Constitution says: "The judges shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." Why this provision? Why guard against the power to deprive the judges of their pay in a diminution of it, and not provide against what was more important, their existence?

Mr. Mason knew that a Legislative body was occasionally subject to the dominance of violent passions; he knew that they might pass unconstitutional laws; and that the judges, sworn to support the Constitution, would refuse to carry them into effect; and he knew that the Legislature might contend for the execution of their statutes: Hence the necessity of placing the judges above the influence of these passions; and for these reasons the Constitution had put them out of the power of the Legislature.

. . . . .

[Mr. Morris:] Gentlemen say, recur to the ancient system. What is the ancient system? Six judges of the Supreme Court to ride the circuit of America twice a year, and sit twice a year at the seat of Government. Without inquiring into the accuracy of a statement made by the gentleman respecting the courts of England, in which, I apprehend, he will find himself deceived, let me ask what would be the effects of the old system here? Cast an eye over the extent of our country, and a moment's consideration will show that the First Magistrate, in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy. Can it be possible that men advanced in years, (for such alone can have the maturity of judgment fitting for the office;) that men educated in the closet--men who, from their habits of life, must have more strength of mind than of body; is it, I say, possible that such men can be running from one end of the continent to the other? Or, if they could, can they find time to hear and decide causes? I have been told by men of eminence on the bench, that they could not hold their offices under the old arrangement.

What is the present system? You have added to the old judges seven district and sixteen circuit judges. What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be, that the check established by the Constitution, wished for by the people, and necessary in every contemplation of common sense, is destroyed. It had been said, and truly, too, that Governments are made to provide against the follies and vices of men. For to suppose that Governments rest upon reason is a pitiful solecism. If mankind were reasonable, they would want no Government. Hence, checks are required in the distribution of power among those who are to exercise it for the benefit of the people. Did the people of America vest all powers in the Legislature? No; they had vested in the judges a check intended to be efficient--a check of the first necessity, to prevent an invasion of the Constitution by unconstitutional laws--a check which might prevent any faction from intimidating or annihilating the tribunals themselves.

On this ground, said Mr. Morris, I stand to arrest the victory meditated over the Constitution of my country; a victory meditated by those who wish to prostrate that Constitution for the furtherance of their own ambitious views. Not of him who had recommended this measure, nor of those who now urge it; for, on his uprightness and their uprightness, I have the fullest reliance; but of those in the back-ground who have further and higher objects. These troops that protect the outworks are to be first dismissed. Those posts which present the strongest barriers are first to be taken, and then the Constitution becomes an easy prey.

Let us then, secondly, consider whether we have constitutionally a power to repeal this law. [Here Mr. Morris quoted the third article and first section of the Constitution.] I have heard a verbal criticism about the words shall and may, which appeared the more unnecessary to me, as the same word, shall, is applied to both members of the section. For it says "the judicial power, &c. shall be vested in one Supreme Court and such inferior courts as the Congress may, from time to time, ordain and establish." The Legislature, therefore, had, without doubt, the right of determining, in the first instance, what inferior courts should be established; but when established, the words are imperative, a part of the judicial power shall vest in them. And "the judges shall hold their offices during good behaviour." They shall receive a compensation which shall not be diminished during their continuance in office. Therefore, whether the remarks be applied to the tenure of office, or the quantum of compensation, the Constitution is equally imperative. After this exposition, gentlemen are welcome to any advantage to be derived from the criticism on shall and may.

But another criticism, which, but for its serious effects, I would call pleasant, has been made: the amount of which is, you shall not take the man from the office, but you may take the office from the man; you shall not drown him, but you may sink his boat under him; you shall not put him to death, but you may take away his life. The Constitution secures to a judge his office, says he shall hold it, that is, it shall not be taken from him during good behaviour; the Legislature shall not diminish, though their bounty may increase, his salary; the Constitution provides perfectly for the inviolability of his tenure; but yet we may destroy the office which we cannot take away, as if the destruction of the office would not as effectually deprive him of it as the grant to another person. It is admitted that no power derived from the Constitution can deprive him of the office, and yet it is contended that by repeal of the law that office may be destroyed. Is not this absurd? It had been said, that whatever one Legislature can do another can undo; because no Legislature can bind its successor, and therefore that whatever we make we can destroy. This I deny, on the ground of reason, and on that of the Constitution. What! can a man destroy his own children? Can you annul your own compacts? Can you annihilate the national debt? When you have by law created a political existence, can you, by repealing the law, dissolve the corporation you had made? When, by your laws, you give to an individual any right whatever, can you, by a subsequent law, rightfully take it away? No. When you make a compact you are bound by it. When you make a promise you must perform it. Establish the contrary doctrine, and what follows? The whim of the moment becomes the law of the land; your country will be looked upon as a den of robbers; every honest man will fly your shores. Who will trust you, when you are the first to violate your own contracts? The position, therefore, that the Legislature may rightfully repeal every law made by a preceding Legislature, when tested by reason, is untrue; and it is equally untrue when compared with the precepts of the Constitution; for, what does the Constitution say? "You shall make no ex post facto law." Is not this an ex post facto law?

Gentlemen say the system of the last session is mere theory. For argument sake, it shall be granted; and what then is the language of reason? Try it; put it to the test of experience. What respect can the people have for a Legislature that, without reflection, meets but to undo the acts of its predecessors? Is it prudent, is it decent, even if the law were unwise, thus to commit our reputation and theirs? Is it not highly dangerous to call upon the people to decide which of us are fools, for one of us must be?

And what would be the effect on the injured man who seeks redress in a court of justice, and whom, by this repeal, you shall have deprived of his right? You have saved him a miserable cent, and you have perhaps utterly ruined him.

But the honorable mover of the resolution has told us not only what is, but what is to be. He has told us not only that suits have decreased, but that they will decrease, and, relying on this preconception, informs us that the internal taxes will be repealed; and grounds the expediency of repealing the judiciary law, on the annihilation of these taxes. Thus, taking for granted the nonexistence of a law that yet exists, he infers from its destruction, and the consequent cessation of suits under it, the inutility of the judicial establishment. And when he has carried his present point, and broken down the judiciary system, he will tell us, perhaps, that we may as well repeal the internal taxes, because we have no judges to enforce the collection of them.

But what will be the effect of these repeals, and of all these dismissions from office? I impeach not the motives of gentlemen who advocate this measure. In my heart I believe them to be upright. But they see not the consequences. We are told the States want, and ought to have, more power. We are told that they are the legitimate sources from which the citizen is to derive protection. Their judges are, I suppose, to enforce our laws. Judges appointed by State authority, supported by State salary, and looking for promotion to State influence, or dependent upon State party. There are some honorable gentlemen now present, who sat in the Convention which formed this Constitution. I appeal to their recollection, if they have not seen the time when the fate of America was suspended by a hair? my life for it, if another convention be assembled, they will part without doing anything. Never, in the flow of time, was there a moment so propitious, as that in which the Convention assembled. The States had been convinced, by melancholy experience, how inadequate they were to the management of our national concerns. The passions of the people were lulled to sleep; State pride slumbered; the Constitution was promulgated; and then it awoke, and opposition was formed; but it was in vain. The people of America bound the States down by this compact.

[12 Jan.]

[Mr. Jackson, of Georgia:] But I will forbear making any further remarks of this kind, and go into an examination of the Constitutional grounds.

[Mr. J. here quoted the third article, first section of the Constitution.]

Here then, said he, are two tribunals. First, the Supreme Court, the creature of the Constitution, the creature of the people; the other, the inferior jurisdictions, the creature of the Legislature. And notwithstanding the play of gentlemen upon the words shall and may, they are in meaning essentially different. The word shall, applied to the Supreme Court, is imperative and commanding, while the word may, applied to the inferior courts, is discretionary, and leaves to the Legislature a volition to act, or not to act, as it sees fit.

Again, why are the peculiar and exclusive powers of the Supreme Court designated in the following section of the Constitution, but because the Constitution considered that tribunal as absolutely established; while it viewed the inferior tribunals as dependent upon the will of the Legislature? And that this was the case was evident from the conduct of the Supreme Court on the pension act, which that court had some time since declared unconstitutional; and which declaration, he was convinced, would not have been hazarded by an inferior tribunal.

But does this conclusion rest on judicial power alone? Is it no where else found under other heads of Constitutional power? Yes, sir, under the Legislative head of power, which is the first grant of power made by the Constitution. For by the eighth section of the first article of the Constitution, after enumerating the power of laying taxes, &c., it is declared in the ninth division thereof, "to extend to constitute tribunals inferior to the Supreme Court." Here, then, is a Legislative power given expressly to that body, without restriction or application to any other branch of the National Government. Let those lawyers who hear me decide on the construction of all grants or deeds, if two grants be made in the same deed to two different powers or persons, if the first does not exclusively vest?

Is there a single argument that can be assigned to oppose this construction of the Constitution? Do not the observations of gentlemen, who insist upon the permanent tenure of the Judicial office, place the creature above its creator, man above his God, the model above its mechanic? A good mechanic, when he constructs a machine, tries it; and if it does not succeed, he either mends it or throws it away. Is there not the same necessity for acting in the same way with the inferior tribunals of the Judiciary, which is no other than the machine of the Legislature?

But, upon the principles of gentlemen, the law which creates a judge cannot be touched. The moment it is passed, it exists to the end of time. What is the implication of this doctrine? To alter or amend what may greatly require alteration or amendment, it is necessary to return to the creator, and to inquire what this creator is. My principle is, that the creator is the people themselves; that very people of the United States whom the gentleman from New York had declared ourselves to be the guardians of, to save the people themselves from their greatest enemies; and to save whom from destroying themselves he had invoked this House. Good God! is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia, than to have heard it uttered by an enlightened legislator of a free country, and on this floor.

But, said Mr. J., let us examine how we are to get at the creator. If the honorable gentleman will put us into the way of doing this with effect, I will abandon all my arguments for this motion. Look to the Constitution, and see how it is to be amended. It can only be amended on the recommendation of two-thirds of both Houses, or, on the application of two-thirds of the States, a convention shall be called, who are to propose amendments, afterwards to be ratified by three-fourths of the States.

There is required first, then, two-thirds of both Houses of Congress. Can this two-thirds be found now, or is there any probability of its being found for twenty years to come, who will concur in making the necessary alterations in the Judiciary system that are now, or may hereafter, be required? On this subject there are as many opinions as there are persons on this floor. I have indeed never found two persons precisely agree. How, then, can we expect three-fourths of the Legislatures of the several States to agree when we cannot agree among ourselves. There is, in fact, no amendment which could reach the case, and exhibit to view all the requisite and necessary regulations for such an extent of country. Such an attempt must form a volume, a Constitution by itself, and after all fall short of the object.

I am clearly, therefore, of opinion that if the power to alter the Judiciary system vests not here, it vests no where. It follows, from the ideas of gentlemen, that we must submit to all the evils of the present system, though it should exhibit all the horrors of the Inquisition.

[14 Jan.]

[Mr. Morris:] The honorable member from Virginia [Mr. Mason] has repeated the distinction before taken between the supreme and the inferior tribunals; he has insisted on the distinction between the words shall and may; has inferred from that distinction, that the judges of the inferior courts are subjects of Legislative discretion; and has contended that the word may includes all power respecting the subject to which it is applied, consequently to raise up and to put down, to create and to destroy. I must entreat your patience, sir, while I go more into this subject than I ever supposed would be necessary. By the article so often quoted, it is declared, "that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time establish." I beg leave to call your attention to what I have already said of these inferior courts. That the original jurisdiction of various subjects being given exclusively to them, it became the bounden duty of Congress to establish such courts. I will not repeat the argument already used on that subject. But I will ask those who urge the distinction between the Supreme Court and the inferior tribunals, whether a law was not previously necessary before the Supreme Court could be organized. They reply, that the Constitution says, there shall be a Supreme Court, and therefore the Congress are commanded to organize it, while the rest is left to their discretion. This, sir, is not the fact. The Constitution says, the judicial power shall be vested in one Supreme Court, and in inferior courts. The Legislature can therefore only organize one Supreme Court, but they may establish as many inferior courts as they shall think proper. The designation made of them by the Constitution is, such inferior courts as the Congress may from time to time ordain and establish. But why, say gentlemen, fix precisely one Supreme Court, and leave the rest to Legislative discretion? The answer is simple: It results from the nature of things from the existent and probable state of our country. There was no difficulty in deciding that one and only one Supreme Court would be proper or necessary, to which should lie appeals from inferior tribunals. Not so as to these. The United States were advancing in rapid progression. Their population of three millions was soon to become five, then ten, afterwards twenty millions. This was well known, as far as the future can become an object of human comprehension. In this increase of numbers, with a still greater increase of wealth, with the extension of our commerce and the progress of the arts, it was evident that although a great many tribunals would become necessary, it was impossible to determine either on the precise number or the most convenient form. The Convention did not pretend to this prescience; but had they possessed it, would it have been proper to have established, then, all the tribunals necessary for all future times?

[18 Jan.]

[Mr. White, of Delaware:] In a preceding part of this Constitution, power is given to Congress to constitute tribunals inferior to the Supreme Court; by the act to which the resolution on your table refers, they did so, and in pursuance of that act, the President of the United States issued commissions to certain gentlemen as judges, they accepted of those commissions, and at the moment of their becoming judges, the Constitution attached to their offices, and guaranteed to them, the same independence and permanency as judges of the Supreme Court, for it makes no distinction. "Judges both of the supreme and inferior courts shall hold their offices during good behaviour." On the acceptance of their commissions, a complete contract was formed between them and the Government; the Constitution told them that the tenure of their offices should be their own good behaviour; the law told them that, for their services, they should receive a certain sum annually; these were the terms, sir, that tempted them to leave their other pursuits in life, and carry into execution this contract; and it is a contract that no power on earth can dissolve but by first altering this Constitution in the manner it directs, or by violating it; and any law attempting its dissolution, operates retrospectively, is an ex post facto law, and in that respect, too, unconstitutional.

But, sir, in order to place beyond a question forever the entire independence of the judiciary, the Convention went still further, and in this same section, nay, in this same sentence, for they followed the thing closely up, they declared that these judges, viz., of the supreme and inferior courts "shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." And under the words of this Constitution, we have just the same power to diminish their salaries whilst they continue in office, as we have to remove them from their offices and strip them of all salary; they hold their offices during good behaviour, and the full amount of their salaries whilst in office by the same strength and power of language; for can it be said, sir, that the words "shall not" are more prohibitory than the word "shall" is mandatory? Certainly not. These latter words apply especially to Congress; they must have been introduced for the express purpose of fixing and marking the bounds of Legislative authority towards the judiciary. And it would seem as if the wise framers of this instrument had feared not, sir, that Congress would ever presume themselves authorized absolutely to remove any judges from their offices without cause, as is contemplated in that resolution, for such an idea could never have entered their minds, after they had the moment before expressly declared, in so many words, that the judges, both of the supreme and inferior courts, should hold their offices during good behaviour, but that the aspiring pride and ambition of Legislative power, in some unhappy moment of intemperance or party warmth, might attempt to impair the independence of the judiciary in another way, by assuming a discretionary power over the salaries of the judges, and thus, rendering them dependent upon Legislative pleasure for a precarious support, make them servile and corrupt.

Gentlemen acknowledge that the judges of the Supreme Court are out of their reach, (thank Heaven that they happen to think so, or they, too, would accompany their brethren;) but, say they, the judges of the inferior courts are creatures of our own, and we can do with them as we please. Let me admit, sir, for argument sake, the positive meaning of the Constitution to the contrary notwithstanding, that these words, "the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour," are equivocal. What reasons can gentlemen have to believe, upon what possible grounds can they presume, that the makers of this Constitution did not intend to place the judges of the inferior courts upon the same independent footing as those of the superior courts? Do they not belong to the same great department of your Government; intended to be kept separate and distinct from the other two great departments? Is not their independence equally important to the faithful administration of justice? Certainly, sir, and if possible more so, for it is to them the people, in most instances, must first apply for justice, and a vast proportion of the most important business that passes through their hands, is never carried into the Supreme Court.

. . . . .

[Mr. John Ewing Colhoun, of South Carolina:] On the first point, the most important, as well as the most proper question, is, have we power, under the federal Constitution, to repeal the late act of Congress, so far as it respects the office and salary of the judges appointed under that act? If, by the letter and express words of the Constitution, we have not the power, then farther reasoning on the subject would be unnecessary, and arguments drawn from expediency or inexpediency would be useless and irrelevant to the question.

I am not, sir, disposed to advocate the late Judiciary system in all its modifications, as I think it imperfect, and not adequate to the purposes intended, and that it is not such an arrangement of the Judiciary as ought to have been adopted. But, as it has got into existence, and is in operation, and the judges appointed under the act, commissioned agreeably to the Constitution, during good behaviour, the ground is now changed; and although, previous to the adoption of the act, opposition to the inexpediency of the measure would have been right, would have been proper; yet now, under existing circumstances, as the law has passed, and the Constitution has attached to the office of the judges appointed under it, durability of office, coextensive with good behaviour, to amend would be proper, but to repeal the act, at least so far as it respects the judges, would be unconstitutional; for I am of opinion, that as soon as their appointments were completed, and their commissions during good behaviour received, that then their offices as judges were completely beyond the reach of Legislative power; and that therefore the present resolution, in its operations, so far as it respects the office of the judges, is unconstitutional, and ought not to be agreed to.

Permit me here, sir, to define the legal rule of explaining a deed, a law, or Constitutional point, and then to apply the part of the Constitution in question to that rule. The rule of law is to make such an exposition of the section or clause under consideration, as will comport with its plain meaning when the words are taken in their common and usual acceptation, agreeably to the English language. If the clause is composed of dubious and uncertain expressions, that will admit of different meanings, or if several parts of the instrument seem to contradict, or be repugnant to each other, then the rule is, to make such a construction, if possible, as will be consistent with reason, and agreeable to the intention and purview of the whole instrument taken together. I think I am correct on the rule of law. Let us now examine the parts of the Constitution connected with the present subject, and apply to them the rules of law. Amongst the detailed powers of the Legislature, under the eighth section of the first article of the Constitution, we find the following, to wit: "to constitute tribunals inferior to the Supreme Court."

If this was the only clause giving them power to establish the inferior courts, I would readily grant that the Legislature could make the law, and at pleasure repeal it, and that the judges, as to the tenure of their office under the act, would be at the will of the Legislature, the existence of the law determining the office of the judge, precisely in the same manner and on the same footing as of the Secretary of State, the Secretary of the Treasury, and the Secretary of the Navy. But the subject is more fully expressed and explained under the proper head, in the first section of the third article of the Constitution, where it says: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour; and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."

Here the intention of the Constitution is explicit, and cannot be doubted; plainer words and a more clear constructed sentence cannot be penned. "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour." We all fully and at once understand what is good behaviour in a judge, the oath he takes and the very nature of his office show it; to act with justice, integrity, ability and honor, and to administer justice speedily and impartially, is good behaviour; if he acts contrary, it would be misbehaviour, and the Constitution in that case has given a remedy by impeachment. If the clause, therefore, admits a certain, clear, and consistent construction, and no other part of the Constitution contains any article contradictory to it, which I contend is the case, the construction given by the gentlemen on the other side, being by implication only, and that against the plain and express words of the clause, will not be warranted by the principles of law; for if the Constitution is paramount to an act of the Legislature, then to hold an office during good behaviour, and during the pleasure of the Legislature, are synonymous terms; it must be so, or the act would be repugnant to the Constitution. The Constitution, on the face of it, appears to have been drawn with precision and correctness, nothing superfluous, nothing deficient. Had the Convention intended the construction now insisted for by the favorers of the resolution, to wit: that the judges of the inferior courts held their offices, not during good behaviour, but at the will of the Legislature, an explanatory clause after the words "good behaviour," would have been necessary and should have been inserted, to this effect: "Provided always, that the judges of such inferior courts shall hold their offices only during the existence of the law under which they may be appointed." By the clearness with which every part of the Constitution has been penned, it is right, it is fair, by analogy of reasoning, to say, that as no such provision is inserted, no such supposed construction was intended, and that therefore the plain letter and spirit of the Constitution must prevail. But, if possible, to make the matter more clear and conclusive, I beg indulgence, whilst I state three collateral arguments which greatly strengthen and enforce the construction which I advocate of that part of the Constitution. The first is, that all enlightened statesmen, at least since the American Revolution, with concurrent testimony, agree, that the Judiciary ought to be kept separate from, and independent of the Legislative and Executive powers; that without this check and control, there could be no true and rational liberty. Secondly, that the framers of the Constitution, who were themselves amongst the best informed and most distinguished citizens of the Union, intended to keep them distinct and separate, as the three great divisions and supporting pillars of the Constitution; this appears from the distinct position they assigned each on the face of that instrument. And thirdly, by the latter part of the first section of the third article, the Legislature have no power to lessen a judge's salary, even to the amount of one cent. This restriction must refer to the Legislature, as they alone have control over the funds of the Government; for the rule of law is, "that is certain, which can be rendered certain." If, therefore, this clause restrains the Legislature from even diminishing the salary of the judge, a fortiori, it prevents the removal from the office itself, as the words composing the whole clause are equally plain and expressive. Thus it appears, at least to me, by the plain and obvious construction of the words of the Constitution, confirmed and explained by the makers of it, that all the judges have a right to hold their offices during good behaviour, and that the Legislature, as a creature of that Constitution, cannot by any Legislative act, remove them. The gentlemen who advocate the resolution, in support of the measure, say, that Virginia, Maryland, and the last Congress, afford examples of the Legislature abolishing courts, and removing from office judges who, under a Constitution, held their appointments as in the present case, during good behaviour. Let us examine the facts, and see if they apply. Virginia had a general court, with common law jurisdiction, which extended throughout the State, a court of chancery, with equitable jurisdiction, equally extensive, and a court of admiralty; the judges of these three courts constituted the court of appeals. About the year 1787, the Legislature of that State found it necessary to establish circuit courts, and in the law enacted, that "the judges of the court of appeals should be the circuit court judges." This law the judges refused to execute as unconstitutional, and said, "they considered themselves as forming one of the three pillars on which the great fabric of government was erected, and that, when this pillar was endangered, a resignation would subject them to the reproach of deserting their stations, and betraying the sacred interests of society, entrusted with them; that the propriety and necessity of the independence of the judges, is evident in reason and the nature of their office, and that this applies more forcibly to exclude a dependence on the Legislature, a branch of whom, in case of impeachment, is itself a party." This was the opinion formed on the law by the then judges, who were some of the ablest lawyers, and greatest statesmen in the Union. I believe the event was, they protested against the law as unconstitutional, resigned their offices, had the resignation recorded, and afterwards were appointed circuit judges. If this statement is correct, which I presume in substance it is, can it be said, that it affords an example that would justify, or in the smallest degree support the principles of the resolution? In the case of Maryland, I have not had full information, therefore cannot decide. In the case of Tennessee and Kentucky, the district courts were abolished; the judges were not removed from office; but by law continued as circuit court judges, with additional duties and additional salary of five hundred dollars each. They neither vacated their office, nor had to take a new oath or new commissions; therefore, in this case, there was no violation of the Constitution. But, to sum the business up, the case of Virginia is against them; the case of Kentucky and Tennessee, not in point; and Maryland, should it afford an example, is the only and solitary one. But, let us now suppose for argument sake, though the fact is otherwise, that half of the States in the Union passed such laws; if those laws are founded on wrong and unconstitutional ground, should they be a precedent for us? Surely not. If they were founded in error, we ought to correct and not continue the error.

Some gentlemen have said, although we cannot remove the judge from the office, yet we can remove the office from the judge. To me this is a paradox in legislation. Do we mean to act indirectly, what we would not profess to do openly and directly? Are the gentlemen prepared to meet this question in all its consequences? Let me suppose they are, and sketch a law founded on the consequences of their repealing act, and exhibit the case in its real and true light. In framing a law the preamble should state facts, and explain the reasons for passing the act. Suppose, then, we should introduce, instead of their present repealing law, the following, viz: Whereas A, B, C, &c., the sixteen Federal judges appointed under the late act of Congress, although they have been commissioned during good behaviour, and have discharged the duties of the office with integrity, ability, and honor, yet we, the Legislature, in Congress assembled, finding their number to be more than we judge necessary for the administration of justice to the good people of the United States, and deeming the law under which they act not the best possible system that could be adopted, and thinking, also, that the public good requires that the judges of the inferior courts should not hold their offices during good behaviour, but should hold them at the will of the Legislature: Be it therefore enacted, &c., That the said sixteen Federal judges shall be, and they hereby are, removed and discharged from their respective offices as judges, and shall not be entitled to any compensation or salary after the passing of this act. This act and preamble would be in truth only what the repealing act in its effects intended, and will naturally produce.

Are we prepared to vote for a law in this form, with all the true reasons stated on the face of the act, and to wish that publicity should be given to it among our constituents, as an act that completely destroys the independence of their judges?

The Founders' Constitution
Volume 4, Article 3, Section 1, Document 21
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

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