United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-04-03 00:00:00, page 1

HOUSE OF REPRESENTATIVES.
■ WASHINGTON, FEB. 20.
-THE GRAND DEBATE,"
F 4 Mr. BAYARD (concluded)
I OWE to the committee the expref,
fion of my thanks for the patience
I with which they attended to the labo
% rious discussion of yesterday.
m It will be my endeavour in the re
marks which I have to offer on the re
maining point of the debate, to con
sume no time whig the importance of
the fubje^ does not juftify. I have
■ never, but With great reluctance, de
parted from the question before the
B committee. Before I heard the gen
tleman from Virginia,! had not an ob-
L fervation to make unconnected with
I the bill on the table. It was he who
forced+me to wander on foreign ground,
and be assured, fir, I shall be guilty of
no new digression where I am net cov
, cred by the fame jollification.
I I did think that this was an occasion
[When the house ought to have & been
I/ liberated from the dominion of party
spirit, and allowed to decide upon the
Aunbiased dictates of their understand
-1 ing. The vain hope which I indulg
1' ed that this course would be pursued,
was soon diflipated by the inflammato
ry appeal made by the gentleman from
1 Virginia, to the padions of his party,
This appeal, which treated with no re
fped the feelings of one fide of the
house, will excuse recriminations which
have been, or which (hall still be retort
& ed. We were disposed to conciliate,
but gentlemen are deceived if they
think that we will submit to be tramp
• ted on. ',
I (hall now, fir, proceed, to the con-
I fideration of the second point which the
| fnbje& presents. However this point
& may be disguised by fubiilties, I con
-1 ceive the true queftioh to be—Has the
= legislature 3 right by law to remove a
■ judge' Gentlemen may Rate their
g question to be, has the legislature a
tight by law to vacate the office of a
judge ? But as in fad they remove the
judges, they are bound to answer our ^
P question.
The question whi r h I date they Will
: not meet. Nay, I have considered it
, as conceded upon all hands, that the
Ilegislature have not the power of re-
1 1 moving a fudge from his office ; but it,
I is contended only, that the office may
be taken from the judge. Sir, it is a
I principle in law, which ought, and!
lapprehend does, hold more strongly in
■ politics ; that what is prohibited from
being done directly, is retrained from
being done indirectly. Is there any
L difference oUt in words between taking
the office from a judge, and removing
, the judge from the office ? Do you not
lindirectly accomplish the end, which
I you admit is prohibited ? I will not
Ay that it is the sole intention of the
Supporters of the bill before us, to re
move the circuit judges from their
h offices ; but I will fay that they eftab
r INh a precedent, which will enable
worse men than themselves to inahe
L life of the legislative power for that pur
h pofeupon any occasion. If it be con
ffitutional to vacate the office, and in
Lthat way to dismiss the judge,can there
■ be a question as to the power to re-cre
£ , atethe office and to fill it with another,
man ? Repeal to-day the bill of the last
ffeffion, and the circuit judges are no
longer in office : To-morrow refeind
I O this repealing a&(and no one willdoubt
I T the right to do it) and no effe& is pro-
I ducedbut the removal ofthejudges. To
R suppose that such a case may occureis
& no vagary ofimagination. The thing
I & has been done—fliamelelsly done in a
^ neighbouring date. The judges there
B held their offices upon the fame tenure
with the judges of the United States.
9 Three of them were obnoxious to the
A% men in power. The judicial law of
the date was repealed, and immediate
ly re-enaded without a veil being thrown
over the tranfaftion. The obnoxious
men were removed, their places sup
plied with new characters ; and the
' other judges were re-appointed. What
ever fophiftiy may be able to shew in
„ theory, in practice there never will be
found a difference in the exercise of the
powers of removing a judge and of va
cating his office.•
'The question, which we are now con-
W filtering depends upon the provisions
^Of ALL THE DISPOSITIONS AND HABITS WHICH LEAD TO POLITICALS
PROSPERITY, RELIGION AND MORALITY are indispensable}
supports. W/ISHIN'GTOFs Legacy, J
'"’——■—■•—■■■■B^^
AMERICAN INDEPENDENCE, TWENTY-SIXTH YEAR.
Wteti States
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Vol.Xll.} SATURDAY, APRIL 3, & 2
CONGRESS.
Gentlemen have ventured to point
out a provision which they conceived
furnifhed this necessary implication.—
They refer co the power given to Con
gress from time to time e&ablifh courts
inferior to the supreme court. If this
power cannot be exercised without va
cating the offices of exiting judges, I
will concede that those offices may be
vacated. But on this head there can
be no controversy; the power has been
and at all times may be exercised with
out vacating the office of any judge.—
It was so exercised at the last session of
Congress ; and I Surely do not now
dispute the right of gentlemen to estab
lish as many new courts as they may
deem expedient. The power to eftah
lifh new courts does not therefore ne
cessarily imply a power to abolilh the
offices of exiting judges, because the
existence of those offices does not pre
vent an execution of the power.
The clause in the constitution to
which I have just alluded, has fternilh
ed to gentlemen their famous position,
that though you cannot remove a judge
from his office, you may take the of
fice from the judge. Though I should
be in order, I will not call this a quib
ble, but I Shall attempt, in the course
of the argument, 1b prove yet more
clearly that it is Une. I do not contend
that you cannot abolish an empty of
fice, but the point on which I rely, is,
that you can do no ad which impairs
the independence of a judge.—When
gentlemen assert that the office may be
vacated notwithstanding the incumben
cy of the judge, do they confider that
they beg the very point which is in con
troversy ? The office cannot be vacat
ed without violating the express pro
vision of the constitution in relation to
the tenure.
The judge is to hold the office dur
*ng good behaviour—does he hold it
when it is taken from him ? Has the
constitution said that he Shall hold the
office during good behaviour; unless
Congress Shall deem it expedient to a
boliSh the office? If this limita
tion has been omitted, what authority
have we to make it a Qart of the con
stitution ?
The second plain unequivocal pro
vision on this lubjed, is, that the com
pensation of the judge Shall not be di
minished during the time he continues
in office. This provision is dire&ly
levelled at the power of the legislature.
They alone could reduce the salary—
Could this provision have any other
design than to place the judge ou{ of
the power of Congress ; and yet how
imperfect' and how absurd the plan?
You cannot reduce a part of the om
penfation, but you may extinguish the
whole. What is the sum of this notable
reasoning ? You cannot remove the
judge from the office,but you may take
contained in the constitution. It is an
error of the committee,upon plain fub
je&st6 search for reasons very profound.
Upon the present fubjea the strong pro
visions of the constitution are so obvi
ous, that no eye can overlook them.—
They have been repeatedly cited, and
as long as the question stated is under
discussion, they must be reiterated.—
There are two prominent provisions to
which I now particularly allude, ift.
The judges (hall hold their offices dur
ing good behaviour. 2. Their com
pensation shall not be diminished dur
ing their continuance in office. These
are provisions so clearly understood up
on the firft impression, that their mean
ing is rather obfeured than illustrated
by argument. What is meant, anrf
what has been universally understood
by the tenure of “ good behaviour ?"
^ tenure for life,if the judge commit no
misdemeanor. It is so understood and
e*preffed in England, and so it has al
ways been received and admitted in
thte country. The express provision
then of the conftittition defines the te
nure of a judge's office, a tenure dur
ing life.—How is that tenure expressly
qualified ? By the good behaviour of
the judge—ls the tenure qualified by
any other express condition or limita
tion ?No other. As the tenure is ex
press, as but one express limitation is im
posed upon it, can it be fubjed to any
other limitation not derived from ne
cessary implication ? If any material
provision in the constitution can in no
other manner be fatisfied, than by fub
jeding the tenure of the office to some
new condition, I will then admit (bat
the tenure is fubje& to the condition.
raiteureaaßrafe ^mumßßmtOTteff^^rcz-CTr^^^ra ^w^aßßMi
the office from the judge; You cannot
take the compensation frorp the judge,
but you may separate the judge from
the compensation.
If your constitution cannot resist
reafonieg like this, +? indeed it is
wade paper.
I will here turn afida, in order to con
fider a variety of arguments drawn
from different fources,on which gentle
men on the other fide have placed a re
liance. I know of no order in/which
they can be classed, and I shall there
fore take them up as I me^ with
them on my notes. It was urged by
the honourable member from Virginia,
to whom I have so frequently referred,
that what was created by lair, might
by law be annihilated. In the applica
tion of his principles, he difeirfed views
which I believe, have not yet been con
templated by gentlemen of bis party.
He was industrious to fteu| ,that not
only the inferior courts, but the fa
preme court derives its exiftfence from
law ; that the president and legislature
existing under the conttitufton, came
into being without the aid/ of a law ;
and that though the constitution said,
there (hould be a supreme court, no
judges could exist till the corrt was or
ganized by law.— This argument, I
presume, was pushed to this extent, in
order to give notice to th: judges of
the fapreme coprt of their Ate, and to
bid them prepare for their end.
I shall not attempt to diferiminate
between the tenure of the offices of the
judges of the supreme & inferior courts.
Congress has power to organize both
descriptions of courts, and to limit the
number of judges, but they have no foot
er to limit or define the tenure of office. —
Congress creates the office; the Presi
dent appoints the officer; but it is
neither under Congress nor the Presi
dent, but under tlie Constitution, that
the judge claims to hold the office dur
ing g o °d behaviour. The principle as
serted Goes not in this case apply ; the
tenure of office is not created by law,
and if the truth of the principle were
admitted, it would not follow, that the
tenure of the office might be vacated
by law. But the principle is not found.
I will shew a variety of cases which
will prove its fallacy. Among the ob
noxious measures of the late administra
tion, was the loan of five millions,which
was funded at 8 per cent. The loan
was created by a law, and funded by
law. Is the gentleman prepared to fy,
that this debt, which was funded by a
law of the former legislature, may be
extinguished by a law of the present?
Can you, by calling the interest of this
debt exorbitant and usurious, juftify
the reduction ofit ? Gentlemen admit
that the salary of a judge, though es
tablished by law, cannot be diminished
„by a law. The fame thing mutt be al
lowed with refped to the salary of the
President. Sir, the true principle is,
that one legislature may repeal the act
of a former, in cases not prohibited by
the constitution. The correct question
therefore, is, whether the legislature are
not forbidden by the constitution to a
bridge the tenure o£a judicial office ?
In order to avoid cases of a nature
similar to those which I have put, the
gentleman from Kentucky,(Mr.Davis,)
and after him the gentleman from Vir
ginia, endeavored to draw a diftindion
between laws executed, and laws execu
tory.
, The diftinftion was illustrated by re
ference to the case of a state admitted
by a law into the union. Here it is said
the law is executed, and fu^us officio
and if^ou repeal it, frill the state re
mains a member of the union.—But it
was aSked by the gentleman from Ken
tucky, supposing a law was made to
admit a State into the union, at a
.future time, before the time of admis
sion arrived, could not the law be re
pealed. I will answer the question to
the fatisfadion of the gentleman, by
Rating a case which exists.—By an
ordinance of Congress in 1787, it
was ordained, that when the popula
tioruwithin the limits ot a state within
the North-Western Territory, Should a
mount to 60,000 fouls—the district
should be admitted as a member of the
Union. Will the gentleman venture to
doubt as to this case ? Would he dare
to tell the people of this country, that'
congress had the power to disfranchife
them.
The law, in the case I refer to is ex
ecutory, though the event upon which.
have adopted. It not only imputes to
the President royal attributes, but pre
rogatives, derived from the rude doc
trines of the feudal law. Does the gen
tleman mean to contend,that the Presi
dent of these Rates, like the monarch
of England, is the fountain of honor, of
justice and of office ? Does he mean to
contend, that the courts are the Presi
dent's courts, and the judges, the Presi
dents judges ? Does he mean to fay,
Sir, that the chief magistrate is always
-supposed to be present in these courts,
and that the judges are but the images
of his justice ? To Serve the paltry pur
poses of this argument, would the gen
tleman be willing to iufufe into our
constitution, the vital spirit +of the feu
dal do&rines! He does not believe, he
cannot believe, that when the wor^l
“ hold" was employed, any reference
Was had to its feudal import. The lan
guage of the constitution furnifhes no
support to this feudal argument. These
officers are not called the judges of the
President, but the judges of the United
States. They are a branch of the gov
ernment equally important,and design
ed to be co-ordinate with the President.
If, Sir, because the President nominates
to office, and cemmiffions, the office is
held of himsbr a Wronger reafon,where,
by patent, he grants lands of the Unit
' ed States, the lands are held of him : And
upon the grantee's dying without heirs
the lands would efcheat, not to the U
nited States, but to the President. Jin
England; the tenure of lands & offices
is derived from the fame principle. All
lands are held mediately or immediate
ly of the crown, because they are sup
posed to have been originally acquired
from the p erfonal grant of the monarch.
It is the fame of office; as the king is
supposed to be the source of all offices.
Having the power to grant, he has a
right to define the terms of the grant.
These terms constitute the tenure. —
When the terms fail, the tenure ceases
and the objed of the grant reverts to
the grantor. This gentleman has charg
ed others with monarchical tendencies,
but never have I before witnessed an
attempt so bold and strong, to incor
porate in our constitution, a rank
monarchical principle. If, Sir, the
principle of our constitution on this
fubjed be republican and not mcnarchi
cal, and the judges hold their offices of
the U. States, and not of the President,
then the application of his argument
has all the force against the gentleman
which he designed it should have a
gainst his adversaries. For if the of
fice be held of the United States, arid
the tenure of good behaviour was de
signed to retrain the power of those of
whom the office was holden, jt will
follow, that it was the intention to ra-
judge Shall hold his office during good
behaviour. It i§ considered as correl
ative to tenure. The gentleman re-
But,fir, if there were any thing in the
principle, it has no influence upon the
case to which it has been applied A
law has created the office of aju dge,
the judge has been appointed and the
office filled. The law is therefore ex
ecuted, and tyon the very deftindion
of the gentleman cannot be repealed.
The law fixing the c^mpenfation is ex
ecutory, ar,J so is that which establishes
the salary of the President; but though
executory, they cannot be repealed.
The distinction therefore is idle, and
leaves the question upon the ground of
the repeal being permited or prohibited
by the constitution. I Shall now ad
vert, fir, to an argument urged with
great force and not a little triumph,
by the honorable member from Vir
ginia. This argument is derived from
judge, the judge holds the office of the
President ; # and that when the constitu
tion provides, that the tenure of the
office shall be during good behaviour,
t|ie'provifion applies to the President,
and reftains the power which otherwise
would refills in confequeUce of die of
fice's being holden of him, to remove
the judges at will, This is an argu
ment,Sir, which 1 ftould have thought,
marks, that the constitution provides,
that the President Qiall nominate the
judge to his office, and when approved
by the senate, shall commission him.
the word 'hold' in the expression, the
that honorable member would have
been the last person upon this floor to
It is hence inferred, that as the Presi
dent nominates and cbmmiffions the
it is to take effect is limited by popula
tion and not by time ?
Qterapi^x&a^HXrc^Utic^-a<#^£^^ : m , re
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These gentlemen firft aboliffi the du
ties of the offices, then call the judges
pensioners, and afterwards v.ccufe us of
establishing sinecures. There are no
pensioners at present ; if there Should
be any, they will be the creatures of
this law. I have ever considered it as
a found and moral maxim, that no one
should avail himfelf of his own wrong,
I It is a maxim, which ought to be e
- Iqually obligatory upon the public as
upon the private man. In the present
case, the judge offers you his service.—.
You cannot fay, it is not worth, the
money you pay for it. You refufe so
accept the service ; and after engaging
to pay him while he continued to per
form the service, you deny him his
compensation, because he negleds to
render Services which you have prevent
ed him from performing. Was injus
tice ever more flagrant ? Surely, fir,
the judges are innocent, j If we did
wrong, why Should they be punched
and disgraced ? They did not pass tho
obnoxious law, they did not create the
offices, they had no participation in the
guilty business ; but Chey wer;invited
upon the faith of government, to re
nounce their private profeffions, to re
linquish the emolument of other em
ployments, and to enter into the service
of the United States, who engaged to
retain them during their lives, if the,
were guilty of no milcondud. They'
have behave! themselves well, unex
ceptionably well ; yet they find the
government refeinding the contrast
made with them, refufing the Stipulated
price of their labour, dismissing them
from service, and in order to coyer the
Scandalous breach of faith, Stigmatizing
them with names which may render
them odious to their countrymen. Is
there a gentleman on the floor of this
House, who would not revolt at such
conduct in private life > 1s there one
who would feel himfelf juftified, after
employing a person for a certain time,
and agreeing to pay a certain compen
sation, to dismiss the party from the
service upon any caprice which altered
his views ; deny him the Stipulated com
pensation, and abuse him with oppro
brious names, for expecting the benefit
of the engagement?
A bold attempt was made by one of
the gentlemen from Virginia, (Mr.
Giles) to force to his aid the Statute of
13th William 3d. I call it a bold at
tempt, because the gentleman was o
bliged to rely upon his own aSTertion to
Support the ground of his argument.
He stated, that the clause in the consti
tution was borrowed from a similar
provision in the statute. I know noth
ing about the fad, but I will allow the ~
gentleman its full benefit. In England,
at an earlier period, the judges held
their commitlions during the good
pleasure of the monarch. The Parli
ament detired, and the king consented,
that the royal prerogative Should be re
strained : That the offices of thejudges
should not depend on foe will of the
crown alone, but upon the joint pleas
ure of the crown and of parliament.—
The king consented to part with a por
tion of his prerogative by relinquishing
his power to remove the judges, with
out the advice of his parliament. But
by an expref clause in the statute, he retain
ed the authority to remove them with
the advice of his parliament. Suppofa
the clause had been omitted, which re
served the right to remove upon the ad
dress of the two Houses of parliament,
and the statute had been worded in the
unqualified language of our constitu
tions that the judges Should hold their
offices during good behaviour, would
not the prerogative of removal have
been abolished altogether ? I will not'
fay that the honorable member has been
peculiarly unfortunate in the employ,
meat ofthis argument, because, Sir ? it
Strain the power of the United States.
We were told by an honorable gen
tleman from Virginia, who rose early
in the debate, (Mr. Thompfon)that the
principles we advocated tended to ef
taWiSh a Sinecure system in the country.
Sir, I am as little disposed to be accef
fary to the establishment of filch a sys
tem, as any gentleman dn this floor -
But let me alk how this system is to be
produced ? We established judicial of
fices, to which numerous and import
ant duties were assigned. A compen
sation has been allowed to the judges,
which no one will fay, is immoderate,
or disproportioned to the service to be
rendered.