that session of Congress, perhaps from an apprehension that it would tend to increase the disquietudes which other measures had before excited, and therefore operate unfavorably to the approaching presidential election. At the next session, after the result of the late election was ascertained, the bill, after having undergone some considerable alterations, was passed into the law now under discussion. This law it is now said, is inviolable and irrepealable. It is said the independence of the judges will be thereby immolated. Yes, sir, this law is now considered as the sanctuary of the principles of the last administration, and the tenures of the judges as the horns of inviolability within that sanctuary. We are now called upon to rally around the constitution as the ark of our political safety. Gentlemen discarding all generalizing expressions and the spirit of the instrument, tie down all construction to the strict letter of the constitution. It gives me great pleasure to meet gentlemen on this ground; and the more so because I have long been in the habit of hearing very different language from the same gentlemen. I have long been in the habit of hearing the same gentlemen speak of the expressions of "the common defence and general welfare," as the only valuable part of the constitution; that they are sufficient to obliterate all the specifications and the limitations of power. That the constitution is a mere nose of wax, yielding to every impression it receives. That every "opening wedge" which is driven into it is highly beneficial in severing asunder the limitations and restrictions of power. That the republicanism it secures means any thing or nothing. It gives me, therefore, great pleasure at this time to obey the injunctions of gentlemen in rallying around the constitution as the ark of our political safety, and of interpreting it by the plain and obvious meaning and letter of the specified powers. But, as if it is always the unfortunate destiny of these gentlemen to be upon extremes, they have now got round to the opposite extreme point of the political compass, and even beyond it. For they not only tie down all construction to the letter of the instrument, but they tell us that they see, and call upon us also to see written therein in large capital characters, "the indefinite independence of judges;" which, to the extent they carry the meaning of the term, is neither to be found in the letter or spirit of that instrument, or in any other political establishment, I believe under the sun. I rejoice that this subject is now to be discussed, and I think the crisis peculiarly auspicious for the discussion. The European world with which the United States have the most relations is now tranquillized. The tremendous scenes of blood and revolution which have agitated that portion of the globe have at length subsided into profound peace; and have left mankind in silent amazement to retrospect the wonderful events which are passed; and I hope, with calm deliberation, to improve the lessons they have furnished for the benefit of mankind in time to come. The interests and sympathies which the people of the United States felt in these events no longer turn their attention from their own internal concerns; arguments of the highest consideration for the safety of the constitution, and the liberty of the citizens, no longer receive the short reply, French partisans! Jacobins! Disorganizers! And although the gentleman from North Carolina sees, or thinks he sees the destructive spirit mount in the whirlwind and direct the storm, let him be consoled by the information, "that all these our actors are mere spirits and are dissolved into thin air." Yes, sir, these magical delusions are now vanished, and have left the American people and their Congress, in their real persons and original American characters, engaged in the transaction of American concerns. Upon taking a view of our internal situation, although party rage may not be done away, it may be said, its highest paroxysm is past. And although the gentleman from New York, Mr. Morris, yesterday observed, that the President had commenced a system of persecution, so ignorant am I of the existence of such a system, that I cannot conceive to what the gentleman alluded. It is some time, Mr. Chairman, since a member of this House and sundry printers throughout the United States, were amerced and imprisoned to appease the vengeance of an unconstitutional sedition act, merely for publishing their own sentiments, which happened to be unpalatable to the then existing administration! It is some time, sir, since we have seen judges, who ought to have been independent, converted into political partisans, and like executive missionaries, pronouncing political harangues throughout the United States! It is some time, sir, since we have seen the zealous judge stoop from the bench to look out for more victims for judicial vengeance! It is some time since we have seen the same judicial impetuosity drive from the bar the most respectable counsel, who humanely proposed to interpose between a friendless and unprotected man and the judicial vengeance to which he was doomed! It is some time, sir, since we have seen the same judicial zeal extending the provisions of the sedition act, by discovering that it had jurisdiction of the 'lex non scripta," or common law! It is some time since we have seen the chief executive magistrate dooming to humiliation, 'in dust and ashes,' a great portion of the American people! Yes, sir, these terrific scenes are past. These noisy declamations, and this judicial zeal, are hushed into silence by the audible pronunciation of the public will. We may even indulge the hope, Mr. Chairman, that our pulpits will not much longer be converted into political forums; and that the meek and humble teachers of the Christian faith, instead of stirring up all the angry and destructive passions of the human mind, will ere long once more condescend to teach those precepts of humility, forbearance and toleration, taught them by their divine preceptor-those precepts so essential to the discovery of truth, by predisposing the mind to deliberation and reflection. the extent they carry it, the term is not to be found either in the spirit, general character, or phraseology of any article or section of the constitution. I mean to give the constitution the most candid interpretation in my power, according to the plain and obvious import of the English language. I shall discard, in my interpretation, the terms "common defence and general welfare," which have been resorted to by some gentlemen. I consider these words as containing no grant of power whatever, but merely the expression of the ends or objects to be effected by the grants of specified powers. I therefore protest against drawing any aid whatever from them, in my construction of the instrument. I have read through the whole constitution, to enable me to form my opinion upon this question, for fear there might be, in some hidden corner of it, some provision, which might demonstrate the unconstitutionality of the present bill; and if so, although I should lament such a provision, I would instantly give up the bill. But my researches have terminated in a different result. I find from the general character of the constitution, that the general will was its basis, the general good its object, and the fundamental principle for effecting this object is the responsibility of all public agents, either mediately or immediately to the people. The context of the constitution demonstrates the two first points, which I will read. The present executive, pursuing the general good, and supported by the general confidence, stands not in need of these artificial aids. He invites inquiry. He knows, that the highest encomium which can be bestowed upon his administration, would flow from a correct understanding of his motives and his conduct. Instead of calling in the aid of sedition acts to the defamatory scribblers, who appear to increase in numbers, and in impudence, in proportion to the desperation of their cause, and their security from punishment, he has said, "let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it." Under these auspicious circumstances, I proceed to the discussion of the important question before us with pleasure, conscious that I am subject to error, and knowing, that if I do err, it is my interest to be corrected; confident also, that there is a mass of intelligence and calm reflection at this time in the people of the United States, competent to detect the error, and apply the corrective. Impressed with these sentiments, I differ widely in opinion with the gentleman from North Carolina, Mr. Henderson, who said, "that if the bill upon your table should pass into a law, he would not heave a sigh or drop a tear upon the instantaneous demolition of the whole constitution; the sooner it was done the better." Sir, this gentleman, and his associates in political opinions, have termed themselves "lovers of order." Is this an evidence of the practice we are to expect from those gentlemen, under their professions, so long and so loudly made to the people of the United States? Cannot that gentleman find some reason to regret that sentiment, in the confidence due to the intelligence and patriot-to ism of a great portion of his fellow-citizens, who differ with him on that piont? Or do the gentleman, and his political associates, claim, with presumptuous vanity, not only the appellation of the exclusive "lovers of order," but also the monopoly of all the intelligence and patriotism of the nation? I have too much respect for gentlemen, to suppose they will place their pretensions on this ground. I beg pardon of the committee for this digression: I have been impelled to it from the course the debate has taken, and particularly from the indecorous attacks made on the President of the United States. "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here we find the constitution founded upon the will of the people; and the object declared be the good of the people. Through the whole body of the constitution may be discerned the responsibility of all public agents, either mediately or immediately, to the people. This responsibility results, first, from the division of authority into different departments; second, from a specification and limitation of the authorities of all and each of the departments; third, from periodical appointments of the public agents. The first clause declares there shall be a Congress, to whom the business of legislation is confided. This Congress is to consist of a House of Representatives to be chosen by the people immediately, and responsible to them at the end of every two years; and a I will now proceed to examine, whether the Senate, to be chosen by the legislatures of the repeal of the judiciary law of the last session different States, who are chosen by the people; of Congress, would in any respect violate that one-third of the senators to be chosen every salutary and practicable independence of the two years, and responsible at the end of every judges, which is secured to them by the consti- six years. The executive power is vested in a tution. The term, independence of judges, or President, who is chosen by electors, who are of the judiciary department, is not to be found chosen for the express purpose by the people, in the constitution. It is, therefore, a mere in-and responsible at the end of every four years. ference from some of the specified powers; and The President may be considered as immediI believe in the meaning of gentlemen, and toately responsible to the people, although chosen through the medium of electors: because it is found in practice that the electors are constrained to avow the vote they intend to give before they are chosen, and the people have generally made their elections with a view to that object. Thus, then, are formed two departments, their powers specified and defined, the times for extending their powers fixed, and indeed a complete organization for the execution of their respective powers without the intervention of any law for that purpose. A third department, to wit, the judiciary department, is still wanting. Is that formed by the constitution? How is that to be formed? It is not formed by the constitution. It is only declared, that there shall be such a department; and it is directed to be formed by the other two departments, who owe a responsibility to the people. Here there arises an important difference of opinion between the different sides of this House. It is contended on one side, that the judiciary department is formed by the constitution itself. It is contended on the other side, that the constitution does no more than to declare, that there shall be a judiciary department, and directs, that it shall be formed by the other two departments, under certain modifications. Article third, section first, the constitution has these words: "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." Here then the power to ordain and establish inferior courts is given to Congress in the most unqualified terms, and also to ordain and establish one supreme court.' The only limitation upon the power of Congress in this clause, consists in the number of supreme courts to be established; the limitation is to the number of one, although that is an affirmative and not a negative expression. The number of judges, the assignment of duties, the fixing of compensations, the fixing of the times when, and places where, the courts shall exercise their functions, &c. are left to the entire discretion of Congress. The spirit, as well as the words of the constitution, are completely satisfied, provided one supreme court be established. Hence, when all these essential points in the organization and formation of courts is intrusted to the unlimited discretion of Congress, it cannot be said that the courts are formed by the constitution. For further restraints, therefore, upon the discretion of Congress, the remaining part of the same section must be consulted. Here I beg leave to remark, that I have often felt a veneration for the wisdom of the sages who formed this constitution. Considering the difficulties they had to encounter, resulting from the various local prejudices and local interests of the different parts of the United States, and the vast variety of opinions which the subject presented, it is almost wonderful to conceive how they should have hit upon a system so admirably calculated to protect and to promote the general interests, when administered according to its original VOL. II.-14 meaning and intention. I cannot go so far as to say it is perfect. I admit, like other human productions, it is stamped with the common fallibility of man; I wish, however, to see no radical changes in its principles. I wish to hand it down to posterity with those amendments only which experience shall suggest, and which will grow out of the continually varying state of the nation. It is not only remarkable for the wisdom of its arrangements, but the correct and technical mode of expression. part of the section now to be examined, is an example of the justice of both these remarks. The words are, "the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." The The first part of this sentence respects the relationship between the executive and the judiciary departments: it respects judges or officers of the courts, who are appointed by the President. The last part of the sentence respects the relationship between the legislative and judiciary departments; it respects the creation of offices, the fixing of the compensation of the officers or judges, and their continuance in office. These are the peculiar attibutes of the legislative department. Accordingly, the most correct and technical words are used in relation to both these objects. The term, "hold their offices during good behavior," relates merely to the executive department. The term, hold, is the common technical word used to convey the idea of tenure. Tenure requires two parties. The one granting, the other holding or receiving the grant. Let the inquiry be made, of whom do the judges hold? The constitution furnishes the answer-of the President. One of the most obvious rules in the construction of instruments of writing is, that the whole of it must be taken together, and not one particular part by itself. The following words will be found in the second section of the second article of the constitution. "And he (to wit, the President,) shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." In the third section of the same article, are these words: "And shall (to wit, the President,) commission all the officers of the United States." These three sentences contain the relationship between the executive and judiciary departments, so far as respects the objects of the present discussion. To ascertain the real meaning and import of these sentences, they should be read in connection with each other, excluding therefrom all intermediate words not immediately bearing on the subject. In that case, the constitution would read thus: "He (to wit the President,) crimes or misdemeanors." I now beg leave to call the attention of the committee particularly to the last clause of the sentence, which ascertains the constitutional connection between the legislative and judicial departments, so far as it respects the limitation of the legislative, in the exercise of the power committed to it, for the organization of the judicial department. I shall the constitution in the exposition I propose to make. The words are, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." The first part of this section having given to Congress the power of creating courts, ascertaining the number of judges, &c., these last words may be considered as containing explanations and limitations of the general power of Congress, as is the foregoing part of this sentence a limitation of the general executive power. And accordingly, the most correct terms are used for limiting egislative discretion, and explaining its objects; according to the words of this sentence, the judge is to receive a compensation for his services. To whom are these services to be rendered? To the people, for the benefit of the people. Who is the judge of the necessity or utility of these services? The constitution has ordained, that Congress, or in other words, the representatives of the people, shall be the tribunal. Suppose there should be no services required, none for the judge to perform, and that Congress should so think and determine: is the judge entitled to compensation? shall nominate and appoint the judges of the | Supreme Court, and all other officers of the United States, and shall commission all the officers of the United States. The judges both of the supreme and inferior courts shall hold their offices during good behavior." It may be now asked, if this case of the judges of the supreme and inferior courts be not an obvious exception out of the general presidential dis-place particular emphasis on these words of cretion of appointing and commissioning all officers of the United States during pleasure? After the government has been in operation above twelve years, and the principle of commissioning all executive officers during pleasure, has been practised upon during the whole of the period by the executive, as well as the legislative department, the propriety of that practice is for the first time now become questionable. It is said that the right to commission during pleasure, is by implication. It is readily admitted, that there are no express words in the constitution to that effect; but the inference, from the words which are there, is almost as strong as the words themselves, if they had been inserted. The President is authorized, without limitation, to "commission all the officers of the United States." The question arises, by what tenure? The reply is, according to his pleasure or discretion. It was not difficult to foresee, that if the President was fully empowered to commission as he pleased, he would please to commission during his pleasure. The legislature has no more control over an officer who holds an executive commission during the pleasure of the President, than over a judicial officer holding his office during good beha-He is not. The condition of service for the vior. The remedy given by the constitution be- benefit of the people, is the express consideraing the same in both cases, to wit, impeachment. tion upon which the compensation accrues. Nor is there any reason, why the office of the No service is rendered, the competent tribunal one should be less subject to the discretion of says, there is none required, of course, no comthe legislature, than the office of the other; and pensation accrues. The judge is entitled to reit seems to be universally agreed, that although ceive none. On this point, an obvious and the legislature cannot deprive an executive most important difference of opinion exists beofficer of his office in any other way than by tween the two sides of the committee. On impeachment during the continuance of such one side, it is contended, that the office is the office, yet the office itself is always subject to vested property of the judge, conferred on him be abolished. The same reasoning will hold by his appointment, and that his good behavior with equal force respecting a judge and a judi- is the consideration of his compensation; so cial office. The reason why the executive is long, therefore, as his good behavior exists, so proscribed from the removal of a judge, is to long his office must continue in consequence secure to the judge the complete independence of his good behavior, and that his compensaof the President, who is not responsible for the tion is his property in virtue of his office, and discharge of judicial duties; but the removal therefore cannot be taken away by any authoris perfectly correct in the case of an executive ity whatever, although there may be no service officer, because the President is highly respon- for him to perform. On the other side, it is sible for the due discharge of executive duties. contended, that the good behavior is not the The legislature is not responsible for either, and considération upon which the compensation of course stands in the same constitutional re-accrues, but services rendered for the public lation to both. This appears obvious from furnishing to the legislature the same means of removing both, as will appear by the fourth section of the second article, in the following words: "The President, Vice President, and all civil officers of the United States, shall be removed from office by impeachment for, and conviction of, treason, bribery, or other high good; and that if the office is to be considered as a property, it is a property held in trust for the benefit of the people, and must therefore be held subject to that condition, of which Congress is the constitutional judge. Considering the boundary line between these conflicting opinions to be the boundary line between offices held for public utility, and offices held for per sonal favor, I cannot bestow too much atten- | understood the conditions attached to his office, tion on this part of the discussion; for if the at the time of his acceptance. It has been adconstruction, gentlemen contend for, should mitted by all gentlemen, that Congress is the prevail, in vain have the framers of the consti- constitutional tribunal for deciding, respecting tution, with so much jealous circumspection, the services to be performed. They admit that erected so many ramparts against the introduc- Congress may modify the courts, diminish or tion of some of these offices in the Government add to their duties, alter the terms of their sesof the United States. A sinecure office is an sions, or make any other arrangements respectoffice held without the condition of service; ing them which do not go to take away or often for past services already compensated; diminish their compensations. It is to be oboften for present favor, without the condition of served, that there is not one of these powers any service. For the purpose of excluding from specified in the constitution; they are, therefore, the federal government all sinecure offices, the necessary inferences from the paramount power sages, who formed the constitution, have, "to ordain and establish," and the power of through every part of it, connected services repeal, or to take away all the services to be and compensation, and they ought never to be performed, is as necessary an inference as either separated in construction. The sixth section of the others, and has uniformly resulted from of the first article is in these words: "The every other specified power in the constitution. Senators and Representatives shall receive a From this part of the sentence, therefore, it is compensation for their services, to be ascer- deducible, that the only restraint upon the gentained by law," &c., and so far has this principle eral power given to Congress in the first part of the rendition of service been carried, that of the section, to ordain and establish courts, is, the service of the Senate and Representatives that the compensations of the judges shall not is to be rendered every day, and unless they do be lessened during their continuance in office; daily render service, they are not entitled to not during their good behavior. And in this their day's compensation. In the first section part of the sentence, the correct phraseology of of the second article of the constitution, are the constitution is worthy of observation. In these words, "the President shall, at stated speaking of the executive attribute, (to wit, the times, receive for his services a compensation," appointing and commissioning of officers,) the &c.; in the first section of the third article, are term good behavior is used. In speaking of these words, "and shall (to wit, the judges the legislative attribute, (to wit, the creation shall,) at stated times, receive for their services of offices and fixing compensations,) the term a compensation," &c. In the forty-first section during their continuance in office is used. The of the act, under which the judges claim their reason for this variation of expression is obvious. compensation, are these words, "that each of It was known, that the office might be disconthe circuit judges of the United States, to be tinued, and the judge continue to behave well; appointed by virtue of this act, shall be allowed the limitation was therefore applied to the office, as a compensation for his services," &c. These and not the good behavior, because, if the office expressions all demonstrate the importance of should be discontinued, which is clearly implied coupling the service and compensation of office. in this expression, it was not the intention of But the jealous caution of the framers of the the constitution, that the compensation should constitution did not stop at choosing the best be received; no service, in that event, being to affirmative expression for excluding this doc- be rendered. From this interpretation of the trine of sinecure offices; they also applied neg- constitution, all the departments are preserved ative restraints. in the due exercise of their respective functions In the ninth section of the first article of the for the general good, without any of the misconstitution, are these words, "No money shall chievous and absurd consequences resulting from be drawn from the treasury but in consequence the opposite construction. It is admitted, that of appropriations made by law." In the same the first part of this section expressly vests Consection, "No title of nobility shall be granted gress with the general power to ordain and esby the United States, and no person holding tablish courts: and if there had been no other any office of profit or trust under them, shall, restriction, the consequent power to unordain, without the consent of Congress, accept of any or abolish. The restriction relied upon is not a present, emolument, office, or title of any kind restriction in express words; there are no words whatever, from any king, prince, or foreign in the constitution prohibiting Congress from state." If, then, services rendered for the pub-repealing a law for organizing courts: the relic benefit, be the essential consideration, upon which the compensation does accrue to the judges; if the Congress be the proper tribunal for pronouncing upon the necessity or utility of such service, and if they decide, that no such service is necessary or useful; the judge sustains no injury in not receiving the compensation; because he does not comply with the condition on his part, nor does he sustain a hardship thereby; because it must be presumed, that he straint contended for, therefore, is by implication, and that implication, to say the least, not expressly connected with any legislative attribute. Is it right, is it a correct interpretation, that when a power is given in express words, for the most important purposes, it should be restrained or prohibited by implication? Can so much inattention and folly be attributed to the framers of the constitution, as would result from the supposition, that, if it was their inten |