The Wheeling repository — Wheeling, Va. [W. Va.], 1808-03-10 00:00:00, page 2

mode of removal is not practicable ; or
that since the judges have been inde
pendent, they have been above suspi
cion, which the world knows they never
were before.
But v. hen we consider our own institu- j
th,ns, we can he at no loss to know how
the power ol removal in this country :
would operate, ii vested in both houses.
As we have never seen, so shall we ne
ver see, a president without his majori
ties in the legislature. This may he ex
ported for two reasons. First; the pre
sident and congress are elected by the ,
same people. The same majority who .
elect a president because of certain poli- t
tical opinions, will elect a majority of !
representatives who approve the same
opinions ; and the same people electing
the members oi their state governments,
will indirectly, though as certainlv, se
cure the appointment of senators. From
this view, it appears to me madness to
look lor a president with a disobedient
congress. It h is, heretofore, been fash
ionable to attribute the subserviency of
congress, to the patronage of the cxecu
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Vi * V . V..*^» ‘/V, umou l ' inn t 113
influence, and it may be considered as
a second cause, combining with popular
opinion, to produce a continual agree
ment between the president and con
gress. 1 he moment it is conceded that
this last cause operates at ail, it must
also be conceded, that in all succeeding
time its operation must increase with the
increasing wealth and population, and
extended territory ox our country ; be
cause this increase and extension neces
sarily increases the number of appoint
m< tits, with their attendant honours and
emoluments, in the gift of the president.
W hat we ha\ e already seen, wc must
expect, diet clure, to see hereafter in a
greater degree. Anel what follows/
Certain destruction to every citizen
whom the president wills to destroy.—
The process of this evil is cxtrejnclv
simple,* if this amendment be adopted—
precisely as simple as the most des’ otic
of the Tudors could have desired* It
will be only for the president, previous
to a meeting of congress,to < ngage a lew
presses in the holy woik of covering an
upright judge with obloquy;.and by
si tiding an executive message to the
two houses, he is remov. d before he
hears of an accusation. The judge be
ing out of**the way, and the president
haring the power of appointment, he can
place in his stead an instrument of his
own purpose ; and thus he can secure
the judgment scat; while the marshall’s
office is already his own. The president
may therefore select both judge and ju
ry, tor any wicked purpose his ambition
may suggest.
It has been said to be inconsistent with
the principles of a republican govern
ment, to grant to any officer a power,
which he may hold in such manner as (
not to be responsible to the people. The '
answer to this objection is, that the- •
judge is responsible to the people, bv |
being responsible to their laws ; and if a J
more immediate responsibility has been
shewn to be dangerous to liberty and ■
the security of property, then the inde- j
pcndcnce ot the judges cannot heincon-i
sistent with live principles ol republican- j
ism, except in so far as these principles [
arc themselves inconsistent with the sc- 1
curity of liberty and property. But this
alteration affects to render the judges
accountable to congress, and not to the
people: it secures a subordination in one
department ot the government; a subor
dination forbidden by our bill of rights. !
Let this subordination be effected, and !
we shall never hear a court of justice i
pronounce :m act ol the government un
constitut onal, and therelore void : no,
not even i! congress were to pass a law
to declare themselves in office ten vears
instead oi two. Nor will we ever see
the injured citizen remunerated in da
mages,who has suffered under the oper
ation ox' unconstitutional executive or
ders. 1 lie case of the w .rrarit issued
hy the secretary of stxxtc contrary to law,
may often occur in our country; but we
shall never see the arm of the law ar
resting the force of executive power.
I have heard it contend d of late, that
for honest but impolitic opinions a judge
ought to be removed, if such opinions'he
disapproved Inj the government or people.
In support of this position I have heard
two cases supposed. They were these:
That if a judge, during the protectorate
of Oliver Cromwell, had decided that
to levy war against his government was
not to commit treason, because his go
vernment was an unlawful one ; or if a
judge, while there lived a pretender to
the British throne, had declared that
this pretender had more right to the
crown than the Hanoverian house of
princes : yet innocent and conscientious
as these opinions might be, the judge
ought to hr removed, J'or the safety of the
go vernment and the good of the people.
Now the declarations of the opinions
supposed, arc both cases of high trea
son; and lor treason the judges were al
ways removeable bv impeachment.—-,
This argument I merely notice, for the
purpose of shewing into what ridiculous
dilemmas the enemies of judicial inde
pendence arc obliged to bring them
selves.
i he last and most singular argument
l have heard, is nothing but the comm«h
cant about ancient and corrupt establish
ments. It is said, that this judicial in
dependence is an ancient monarchical
contrivance, calculated to raise the crea
ture above its creator; that our conven
tion found it interwoven with our insti
tutions when they made our present con -
stitution, and adopted it in a manner
sub silent in; and that it is now high
time to put forth the pruning hook of
modern reformation and lop it off.—If
tnis argument were intended to prove,
that those who urge it were ignorant of
the past, and entirely incapable •! judg
ing of the future, .i. would be fullv suffi
cient tor its purpose.—Our patriots who
framed the constitution, deserved not
this censure. They considered this sub
joci in all its bearings. They foresaw
that presidents might abuse power as
well as kings. They knew that this a
dusc was incident to man ; and believing
that men now are what they have been,
they very w isely supposed they will hcrc
aiter be what they now are—weak and.
imperfect beings. Hut it there were any
thing in this argument, how dots it ap
ply ? Certainly against the proposed
change. Judicial independence is but
a modern improvement; and those w ho
attack it are follow ing the lofty example
of the parliament in the time of Richard
the second, who abolished popular elec
tions for sheriffs, and placed that r.flier
■virtually in the gift of the king. Indeed
the advocates of this change surpass that
example. Whatever concerned the hap
piness of the English people,was by that
parliament prostrated at the loot of the
throne. They gave their all ; and this
resolution proposes the same. But we
have more blessings to give, and there
fore our sacrifices will be greater. Li- j
beTty the English people had not; but
life and property they had. These they
gave away. We have life and property
also, and we have liberty; and all these
we are asked to place at the mercy of
every future president.
Mr. Chairman, before I sit down, I
must ask the committee to consider
some circumstances that are gathering
round us, and to reflect whether this is
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