Judiciary. -- On Mr. Breckenridge's Motion to repeal the Act passed for a new Organization of the Judiciary System.

Senate, January 8, 1800.

Mr. J. MASON. It will be found that the people, in forming their Constitution, meant to make the judges as independent of the legislature as of the executive; because the duties they have to perform call upon them to expound not only the laws, but the Constitution also; in which is involved the power of checking the legislature, in case it should pass any laws in violation of the Constitution. For this reason it was more important that the judges in this country should be placed beyond the control of the legislature, than in other countries, where no such power attaches to them.

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.

January 13, 1802.

Mr. MASON, (of Virginia.) When I view the provisions of the Constitution on this subject, I observe a clear distinction between the Supreme {443} Court and other courts. With regard to the institution of the Supreme Court, the words are imperative; while with regard to inferior tribunals, they are discretionary. The first shall, the last may, be established. And surely we are to infer, from the wise sages that formed that Constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even points, elucidate its meaning. When, therefore, the Constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it a constitutional creation? and on the other, from the language applied to inferior courts, are we not equally justified in considering their establishment as dependent upon the legislature, who may, from time to time, ordain them, as the public good requires? Can any other meaning be applied to the words "from time to time"? And nothing can be more important on this subject than that the legislature should have power, from time to time, to create, to annul, or to modify, the courts, as the public good may require -- not merely to-day, but forever, and whenever a change of circumstances may suggest the propriety of a different organization. On this point, there is great force in the remark, that, among the enumerated powers given to Congress, while there is no mention made of the Supreme Court, the power of establishing inferior courts is expressly given. Why this difference, but that the Supreme Court was considered by the framers of the Constitution as established by the Constitution? while they considered the inferior courts as dependent upon the will of the legislature.

January 13, 1802.

Mr. STONE, (of North Carolina.) No part of the Constitution expressly gives the power of removal to the President; but a construction has been adopted, and practised upon from necessity, giving him that power in all cases in which he is not expressly restrained from the exercise of it. The judges afford an instance in which he is expressly restrained from removal -- it being declared, by the 1st section of the 3d article of the Constitution, that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. They doubtless shall, (as against the President's power to retain them in office,) in common with other officers of his appointment, be removed from office by impeachment and conviction; but it does not follow that they may not be removed by other means. They shall hold their offices during good behavior, and they shall be removed from office upon impeachment and conviction of treason, bribery, and other high crimes and misdemeanors. If the words impeachment of high crimes and misdemeanors be understood according to any construction of them hitherto received and established, it will be found that, although a judge, guilty of high crimes and misdemeanors, is always guilty of misbehavior in office; yet that, of the various species of misbehavior in office which may render it exceedingly improper that a judge should continue in office, many of them are neither treason nor bribery; nor can they properly be dignified by the appellation of high crimes and misdemeanors; and for impeachment of which no precedent can be found, nor would the words of the Constitution justify such impeachment.

To what source, then, shall we resort for a knowledge of what constitutes this thing called misbehavior in office? The Constitution did not intend that a circumstance, as a tenure by which the judges hold their offices, should be incapable of being ascertained. Their misbehavior certainly is {444} not an impeachable offence; still it is the ground by which the judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under and according to the Constitution. I take it, therefore, to be a thing undeniable, that there resides somewhere in the government a power that shall amount to define misbehavior in office by the judges, and to remove them from office for the same without impeachment. The Constitution does not prohibit their removal by the legislature, who have the power to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States.

Mr. BRECKENRIDGE. To make the Constitution a practical system, the power of the courts to annul the laws of Congress cannot possibly exist. My idea of the subject, in a few words, is -- That the Constitution intended a separation only of the powers vested in the three great departments, giving to each the exclusive authority of acting on the subjects committed to each; that each are intended to revolve within the sphere of their own orbits, are responsible for their own motion only, and are not to direct or control the course of others that those, for example, who make the laws, are presumed to have an equal attachment to, and interest in, the Constitution, are equally bound by oath to support it, and have an equal right to give a construction to it; that the construction of one department, of the powers particularly vested in that department, is of as high authority, at least, as the construction given to it by any other department; that it is, in fact, more competent to that department, to which powers are exclusively confided, to decide upon the proper exercise of those powers, than any other department, to which such powers are not intrusted, and who are not consequently under such high and responsible obligations for their constitutional exercise; and that, therefore, the legislature would have an equal right to annul the decisions of the courts, founded on their construction of the Constitution, as the courts would have to annul the acts of the legislature founded on their construction.

Although, therefore, the courts may take upon them to give decisions which go to impeach the constitutionality of a law, and which, for a time, may obstruct its operation; yet I contend that such law is not the less obligatory because the organ through which it is to be executed has refused its aid. A pertinacious adherence of both departments to their opinions would soon bring the question to an issue, which would decide in whom the sovereign power of legislation resided, and whose construction of the Constitution as to the law-making power ought to prevail.

Mr. HEMPHILL. I have ever understood that there was difference in opinion on this point: that the general opinion was, that the words in the Constitution rendered the judges independent of both the other branches of the government. This appears from the debates in the Convention in Virginia, to have been their opinion; it appears also, from the strongest implication, to have been the opinion of the author of the Notes on Virginia.

What is the meaning of the words from time to time? They are used but in three other parts of the Constitution, and, when used, they do not convey the idea of what may be done. Indeed, they are used in cases where it is impracticable to undo what shall have been done. [Mr. Hemphill here read 5th sec. 1st art. No. 3, 9th sec. 1st art. No. 6, and 3d sec. 2d art.] What do these words mean in that part of the Constitution under discussion? The Supreme Court had been mentioned in 2d and 3d art. {445} -- the Supreme Court, which implies that there should be but one. They were not used to give Congress power to constitute inferior courts, for that power had been previously given; and if the inferior courts, together with the offices of the judges, are, as is contended, subjects of ordinary legislation, these words were unnecessary to enlarge the powers of Congress on them; for, on all subjects of ordinary legislation, Congress have an unquestionable right to enact and repeal at pleasure.

It is not said, in the 8th section, 1st article, that Congress shall have the power to borrow money from time to time, to regulate Commerce from time to time, or to establish post-offices and post-roads from time to time; yet nobody doubts that Congress have a right to enact and repeal laws on these subjects when it may appear expedient; and the same power would have extended to the clause giving power to constitute inferior tribunals, if there had been no restriction in any other part of the Constitution. As these words are unnecessary to give the power contended for, they must have some other meaning. The plain meaning is this -- that these words, together with the first part of the section, were not used to give a power to constitute courts; for that power had been expressly given: they were merely introduced to dispose of judiciary power, and to declare where it should reside. The judiciary 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; meaning the power before given, Which was discretionary as to number. The clause in the 8th section of the let article is brought here into view; and in the very next sentence, the offices are positively fixed and limited. Here, then, is an express and positive provision, uncontradicted by any express declaration, or by any violent implication.

Mr. BAYARD. The 2d section of the 3d article of the Constitutionexpressly extends the judicial power to all cases arising under the Constitution, the laws, &c. The provision in the 2d clause of the 6th article leaves nothing to doubt. This Constitution, and the laws Of the United States which shall be made in pursuance thereof, &c., shall be the supreme law of the land. The Constitution is absolutely the supreme law. Not so of the acts of the legislature. Such only are the laws of the land as are made in pursuance of the Constitution.

Mr. RUTLEDGE. Taught by examples the value of a good judiciary, the patriots who met at Philadelphia determined to establish one which should be independent of the executive and legislature, and possess the power of deciding rightfully and finally on conflicting claims between them. The Convention laid their hand upon this invaluable and protecting principle in it they discovered what was essential to the security and duration of free states; what would prove the shield and palladium of our liberties; and they boldly said, notwithstanding the discouragement in other countries, in past times, to efforts in favor of republicanism, our experiment shall not miscarry, for we will establish an independent judiciary; we will create an asylum to secure the government and protect the people in all the revolutions of opinion, and struggles of ambition and faction, They did establish an independent judiciary. There is nothing, I think, more demonstrable than that the Convention meant the judiciary to be a coördinate, and not a subordinate branch of the government. This is my settled opinion. But on a subject So momentous as this is, I am unwilling to be directed by the feeble lights of my own understanding; and as my judgment, at all times very fallible, is liable to err much where {446} my anxieties are much excited, I have had recourse to other sources for the true meaning of this Constitution. During the throes and spasms, as they have been termed, which convulsed this nation prior to the late presidential election, strong doubts were very Strongly expressed whether the gentleman who now administers this government was attached to it as it is. Shortly after his election; the legislature of Rhode Island presented a congratulatory address which our chief magistrate considered as soliciting some declaration of his opinions of the Federal Constitution; and in his answer deeming it fit to give them, he said, "the Constitution shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption -- a meaning to be found in the explanations of those who advocated, not those who opposed it. These explanations are preserved in the publications of the time." To this high authority I appeal -- to the honest meaning of the instrument, the plain understanding of its framers. I, like Mr. Jefferson, appeal to the opinions of those who were the friends of the Constitution at the time it was submitted to the states. Three of our most distinguished statesmen, who had much agency in framing this Constitution, finding that objections had been raised against its adoption, and that much of the hostility produced against it had resulted from a misunderstanding of some of its provisions, united in the patriotic work of explaining the true meaning of its framers. They published a series of papers, under the signature of Publius, which were afterwards republished in a book called the Federalist. This contemporaneous exposition is what Mr. Jefferson must have adverted to when he speaks of the publication of the time. From this very valuable work, for which we are indebted to Messrs. Hamilton, Madison, and King, I will take the liberty of reading some extracts, to which I solicit the attention of the committee. In the seventy-eighth number we read, "Good behavior for the continuance in office of the judicial magistracy, is the most valuable of the modern improvements in the practice of government. In a republic, it is a barrier to the encroachments and oppressions of the representative body; and it is the best expedient that can be devised in any government to secure a steady, upright, and impartial administration of the laws. The judiciary, in a government where the departments of power are separate from each other, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. It has no influence over the Sword or the purse, and may be truly said to have neither force nor will, but merely judgment. The complete independence of the courts of justice is essential in a limited constitution; one containing specified exceptions to the legislative authority; such as that it shall pass no ex post facto law, no bill of attainder, &c. Such limitations can be preserved in practice no other way than through the courts of justice, whose duty it must be to declare all acts manifestly contrary to the Constitution void. Without this, all the reservations of particular rights or privileges of the states or the people would amount to nothing. Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the courts, designed to be an intermediate body between the people and the legislature, are to keep the latter within the limits assigned to their authority. The Convention acted wisely in establishing good behavior as the tenure of judicial offices. Their plan would have been inexcusably defective bad it wanted this important feature of good government." The authority I have read proves to demonstration what was the intention {447} of the Convention on this subject -- that it was to establish a judiciary completely independent of the executive and legislature, and to have judges removable only by impeachment. This was not only the intention of the General Convention, but of the state conventions when they adopted this Constitution. Nay, sir, had they not considered the judicial power to be coördinate with the other two great departments of government, they never would have adopted the Constitution. I feel myself justified in making this declaration by the debates in the different state conventions. From those of the Virginia Convention I will read some extracts, to show what were there the opinions of the speakers of both political parties.

General Marshall, the present chief justice, says, "Can the government of the United States go beyond those delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered as an infringement of the Constitution, which they are to guard: they would not consider such a law as coming under their jurisdiction they would declare it void." Mr. Grayson, who opposed the Constitution, we find saying, "The judges will not be independent, because their salaries may be augmented. This is left open. What if you give £600 or £1000 annually to a judge? 'Tis but a trifling object, when, by that little money, you purchase the most invaluable blessing that any country can enjoy. The judges are to defend the Constitution." Mr. Madison, in answer, says, "I wished to insert a restraint on the augmentation as well as diminution of the compensation of the judges; but I was overruled. The business of the courts must increase. If there was no power to increase their pay, according to the increase of business, during the life of the judges, it might happen that there would be such an accumulation of business as would reduce the pay to a most trivial consideration." Here we find Mr. Madison not using the words good behavior, but saying, (what we say was meant by good behavior,) during the life of the judges. The opinions of Mr. Madison I deem conclusive as to the meaning of the words good behavior. Let us now see what was the opinion on this subject of the first Congress under the Constitution, when the first judiciary bill was debated. Mr. Stone says, "The establishment of the courts is immutable." Mr. Madison says, "The judges are to be removed only on impeachment and conviction before Congress." Mr. Gerry, who had been a member of the General Convention, expresses himself in this strong and unequivocal manner: "The judges will be independent, and no power can remove them: they will be beyond the reach of the other powers of the government; they will be unassailable, and cannot be affected but by the united voice of America, and that only by a change of government." Here it is evident Mr. Gerry supposed a project like the present could only be effected by the people, through the medium of a convention; he did not suppose it possible for Congress ever to grasp at this power. The same opinions were held by Mr. Lawrence and Mr. Smith.

As early as the year 1789, among the first acts of the government, the legislature explicitly recognized the right of a state court to declare a treaty, a statute, and an authority exercised under the United States, void, subject to the revision of the Supreme Court of the United States; and it has expressly given the final power to the Supreme Court to affirm a judgment which is against the validity either of a treaty, statute, or an authority of the government.