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upon any occasion. If it be constitution
al to vacate the office, and in that wav to
difinifs the judge, can there he a question
as to the power to re-create the office and
to fill it with another min ? Repeal to-day
the bill of the lad fdfion, and the circuit
judges are no longer in office. To-mor
row refeind this repealing aft (and no one
will doubt the right to do it) and no ef
feft is produced but the removal of the
judges. To suppose that fitch a case may
occur is no vagary of imagination. The
thing has been done, shamelessly d me in a
neighboring slate. The judges there held
their offices upon the fame tenure with the
j udges of the U. States. Three of t hem were
obnoxious to the men in power. The judi
cial law of the state w ,s repealed, a*d im
mediately re-enafted without a veil being
thrown over the tranfaftion. The obnoxi
ous men were removed, their places sup
plied with new charafters, and the other
judges were re-appointed. Whatever so
phistry may be able to (hew in theory, in
praftice there never will be found a differ
ence in the cxercife of the powers of re
movnig a judge and of vacating his office.
The qeuftion, which we are now con
sidering, depends upon the provisions con
tained in the constitution. It is an error
of the committee, upon plain fubjefts to
search for reasons very profound. Upon
the present fubjeft the strong provisions
of the constitution are so obvious, that no
eye can overlook them. They have been
repeatedly cited, and as long as the q isf
tion dated is under difcuflion, they mu ft
be reiterated. There are two prominent
provisions to which I now particularly
allude, ift. The judges ffiall hold their
offices during good behaviour. 2 h Their
compensation fliall not be diminiftied
during their continuance in office. Tliefe
are provisions so clearly un lerftood upon
the firft impression, that their meaning is
rather obfeured than illuftrufed by argu
ment. What is meant, and what has been
universally understood by the tenure of
“ good behaviour ?” A tenure for life if the
judge commit no misdemeanor. It is to
nuderftood and expressed in England, and
foit has always been received and ad mi'ted
in this country. The express provision then
of the constitution defines the tenure of a
judge’s office; a tenure during life.— How
is that tenure expressly qualified ? By the
good behaviour of the judge.—ls the ten
ure qualified by any other express condi
tion or limitation ?No other. As the
. tenure is express, as but one express limi
tation is imposed upon it, can it be fub
jeft to any other limitation not derived
from necelfiary implication. If any ma
terial provision in the constitution can in
no other manner be fatisfied, than by fub
jedting the tenure of this office to some
new condition, I will then admit that the
tenure is fubjeft to the condition.
Gentlemen have ventured to point out
a provision which they conceived furnifh
ed this neceflary implication. They re
fer to the power given to Congress from
time to time to establish courts inferior to
the supreme court. If this power cannot
be exercised without vacating the offices
of existing judges, I will concede that
those offices mav be vacated. But on this
head there can be no controversy. The
power has been, and at all times mav, be
exercised without vacating the office of
any judge. It was so exercised at the
Jaft session of Congress; and I surely do
not now dispute the right of gentlemen
to eftablifti as many new courts as they
may deem expedient. The power to ef
tablifti new courts does not therefore ne
ceflurily imply a power to abolish the
offices of existing judges, because the ex
istence of those offices does not prevent
an execution of the power.
The clause in the constitution to which
I have just alluded has furniflied to gen
tlemen their famous position, that though
you cannot remove a judge from his office,
you may take the office from the judge.
Though I fliould be in order, I will not
call this a quibble, but I ihall attempt, in
the course of the argument, yet more
clearly to prove that it is one. Jdo not
contend that you cannot abolifti an empty
office, but the point on which I reply is,
that you can do no aft which impairs the
independence of a judge.— When gentle
men aflert chat the otfice may be vacated
notwithstanding the incumbency of the
judge, do they confider that they beg the
very point which is in controversy. The
office cannot be vacated without violating
the express provision of the constitution
in relation to the tenure.
The judge is to hold the office during
good behaviour. Does he hold it when
it is taken from him ? Has the constitu
tion said, that he (hall hold the office dur
ing good behaviour, unless Congress fliall
deem it expedient to abolifti the office?
If this limitation has been omitted, what
authority have we to make it a part of
the constitution ?
The second plain, unequivocal provi
sion, on this fubjeft is, that the compen
lation of the judge fliall not be diminifli
cd during the time lie continues in otfice.
This provision is direftly levelled at the
power of the legiftature. They alone
could reduce the salary. Could this pro
vision have any other design than to place
the judge out of the power of Congress;
and yet how imperfeft and how ablurd
the plan. You cannot reduce a part of
the compensation, but you may extinguiffi
the whole. What is the sum of this no
table reasoning ? You cannot remove the
judge from the office, but you may take
the office from the judge. You cannot
take the compensation from the judge,
but you may separate the judge from the
compensation.
If vour constitution cannot refill rea
foiling like this, then indeed is it waste
paper.
I will here turn aside, in order to con
fider a variety of arguments drawn from
different sources, on which gentlemen on
the other fide have placed a reliance. I
know of no order in which they can be
clalfed, and 1 fliall therefore take them
up as I meet with them on my notes, It
was urged by the honorable member from
Virginia, to whom I have so frequently
refer ed, that what was created by law,
might by law be annihilated. In the ap
plication of his principle, be disclosed
views which I believe, have not vet been
contemplau d by gentlemen of his party.
He was indtiftrious to lliew that not only
t-he interior courts, but the supreme court
derives its exiftmee from law. The pre
fiJen: and legiftature exifl under the con
stitution. They came into being without
the aid ofa law. But though the constitu
tion said, there fliould be a supreme court,
no judges could exist till the court was
organized by law. This argument, I pre
furne, was pulfied to this extent in order
to give u nice to the judges of the supreme
court of tneir fate and to bid them prepare
for their end.
I 111 ill not attempt to diferiminate be
tween the tenure of the offices of the
judges of the iuprenie and inferior courts.
Congress has power to organize both de
scriptions of courts, and to limit the num
ber of jud >ts, but they have no power to limit
or define the tenure of office. Congress creates
the office; the Prefidcnt appoints the of
ficer, but it is neither under Congress or
the President, but under the constitution,
that the judge claims to hold the of§cd
during good behaviour. The principle
afierted does 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 fliew a va
riety of cases which will prove its fallacy.
Among the obnoxious mtafures of ’he
late administration, was the loan of five
millions, which was funded at S per cent.
The loan was created by a law and fund
ed by law. Is the gentleman prepared to
fay, that this debt, which was funded by
a law of the former legiftature, may be ex
tinguiflieri by a law of the present. Can
you, by calling the interest of this debt,
exorbitant and 11 furious, jollify the re
duction of it? Gentlemen admit that the
salary of a judge, though eftabliflied by a
law, cannot be diminiftied bv a law.
The fame thing tnuft be allowed with
refpeft to the falarv of the President. Sir,
the true principle is, that one legiftature
may repeal the aft ofa former, in cases
not prohibited by the constitution. The
correft queflion therefore is, whether the
legiftature are not forbidden by the con
stitution to abridge the tenure of a judi
cial 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, endeavoured to draw a diftinfttion
between laws executed, and laws executo
ry.
4
The diftinftion was illustrated bv re
ference to the case of a state admitted bv a
law into the union. Here it is said the
law is executed, and funftus officio, and
if you repeal it, dill the bate remains a
member of the union. But it was aike
by the gentleman from Kentucky, f'up
posing a law made to admit a state into
the union, at a future time, before the
time of admission arrived, could not the
law be repealed. I will answer the quef
tion to the fatisfaftion of the gentleman,
by dating a case which exists. Bv an <<r
(finance of congress, in the year 1787.
Congress ordained, that when the popu
lation within the limits of a state within
the North Weflern Territory, fhoulo
amount to 60,000 fouls—the diftrift
fliould be admitted as a member of the
union. Will the gentleman venture to
doubt as to tills case ? Would he dare to
tell the people of this country, that Can
grefs had the power to disfranchife them.
The law, in the case I refer to, is exe
cutory, though the event upon which it is
to take eis limited by population aod
not by time ?
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 a judge, the judge
has been appointed and the office filled,
j The law is therefore executed, and upon
the very diftin&ion oftiie gentleman, can
not be repealed. The law fixing thecom
penfation is executory, and so is that
which eftablifties the salary. of the Prefi
denf, but though executory, they cannot
be repealed. The diftin&ion therefore is
idle, and leaves the question upon the
ground of the repeal, being permitted or
prohibited by the constitution. I (hall
now advert, fir, to an argument urged
with great force and not a little triumph,
by the honorable member from Virginia.
This argument is derived fron the word,
‘ hold’ in the expression, the judge (hall
hold his office during good behaviour, it
is considered as correlative to tenure. The
gentleman remarks, that the conllitution
provides, that the President fiiall nominate
the judge to his office, and when approved
by thelenate, fhalj comrniffion him. it is
hence inferred, that as the President no
minates and commissions the judge, the
judge holds the office of the President; and
that when the constitution provides, that
the tenure of the office {hall be during
goo l behaviour, the provision applies to
the President, and restrains the power
which otherwise would result in conse
quence of the offices being holden of him,
to remove the judges at will. This is
an argument, fir, which I ffiould have
thought, that honorable member would
have been the last person upon this floor
to have adopted, it not only imputes to
the President royal attributes, but prero
gatives, derived from the rude do&rines
of the feudal law. Does the gentleman
mean to contend, that the President of
these states, 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 President’s courts, and
thejudges, the President’s judges? Does
he mean to fay, fir, that the chief magif
trat; is always supposed to be present in
these courts, and that the judges are but
the images of his justice ? To serve the
paltry purposes of this argument, would
the gentleman be willing to infufe into
our conftituiion, the vital spirit of the feu
dal doiftrines ? He does not believe, he
cannot believe, that when the word ‘ hold’
was employed, any reference was had to
its feudal import. The language of the
constitution furniflies no support to this
feudal argument. These officers are not
cal/ed thejudges of the President, but the
judges of the United States. They are a
branch of the government equally impor
tant, and designed to be co-ordinate with
the President. If, fir, because the Presi
dent nominates to office and commissions,
the office is held of him, for a stronger
reason where by patent he grants lands of
the United States, the lands are held of
him. And upon the grantee’s dying with
out heirs, the lands would efebeat not to
the United Stares, but to the President.
In England, the tenure of lands and of
fices is derived from the fame principle.
AH lands are held mediately, or immedi
ately of the crown, because they are iup
pofe to have been originally acquired
from the personal grant of the monarch.
It is the fame of office, as the king is sup
posed to be the source of all offices. Hav
ing 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 ob
jeft of the grant reverts to the grantor.
This gentleman has charged others with
monarchical tendencies, but never have I
before witnefl'ed an attempt so bold and
fi rang to incorporate in our constitution,
a rank monarchical principle. If, fir, the
principle of our constitution on this fuh
jc6l be republican and not monarchical,
and the judges hold their offices of the
United States, and not of the President,
then the application of his argument has
all the forceagainft the gentleman, which
he designed it (hould have against his ad
versaries. For if the office be held of the
United States, and the tenure of good be
haviour was designed to restrain the pow
er at those of whom the office was holden,
!' will follow, that it was the intention to
restrain the power of the United States.
We were told by an honorable gentle
man from Virginia, who rose early in the
debate, (Mr. Thompson) that the princi
ples we advocated tended to establish a
tuuerre system in the country. Sir, I
."»i as little disposed to be acceflary to the
Hlahl'flirrent of filch a system, as any
gentleman on this floor. But let me afic
now this system is to be produced ? We
established judicial offices, to which nu
merous and important duties were assign
ed. A compensation has been allowed
to the judges which no one will fay, is
immoderate, or disproportioned to the
service to be rendered. These gentlemen
firft aboiifli the duties of the offices, then
call the judges pensioners, and afterwards
accuse us of establishing sinecures. There
are no pensioners at prd'ent, if there fhouid
be any, they will he the creators cf this
law. I have ever coßfidered it as a found
and moral maxim, that no or-: fhouid
avail himfelf of his own wrong. It is a
maxim, which ought to be equally obli
gatory upon the public as upon the pri
vate 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 to accept the service; and af
ter engaging to pay him while he con
tinued to perform the service, you deny
him his compensation, because he neglects
to render lervices which yon have prevent
ed him from performing. Was injustice
ever more flagrant ? Surely, fir, the judges
are innocent. If we did wrong, why
fhonld they be punished and disgraced ?
They did not pass the obnoxious law,
they did r.ot create the offices, they had
no participation in the guilty business;
but they were invited upon the faith of
government, to renounce their private
profeffions. to relinquifli the emolument
of other employments, and to enter into
the service of the United States, who
engaged to retain them during their lives,
if they were guilty of no mifeondudt.
They have behaved themselves well, un
exceptionably well, when they find the
government refeinding the contrast made
with them, refilling the stipulated price of
their labour, difmifiing them from service,
and in order to cover 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 conduit in private
life ? Is there one who would feel himfelf
juftified, after employing a person for a
certain time, and agreeing to pav a cer
tain compensation, to dilinifs the party
from the service upon any caprice which
altered his view's, deny him the stipulated
compensation, and to abuse him with op
probrious names, for expecting the bene
fit of the engagement :
(Jo be continued,)
March 15.
We received on Saturday Paris journal™
to the 10th instant, which are as barren
of important information as anv which
have arrived for months past. "Extraits
from the Englilh papers refpe&ing our
late armaments appear in ieverai of the
French prints without the fmalltft com
ment. The official communication to
the house of Austria, of Buonaparte’s as
sumption of the Presidency of the New
Itaiian republic, caused lately a verv seri
ous sensation in Vienna. A council was
held on this interesting affair, and mes
sengers were immediately dispatched to
Berliji, Peterfburgh, and London, with
the result of the deliberation. The Paris
papers do not contain the rroft remote
idea concerning the negotiation at Amiens.
Tiers Confolide 56 f. 50 c.
Mr. Shaw, the messenger, arrived at a
late hour on Friday night at lord Hawkef
bury’s office, charged with dispatches
from marquis Cornwallis at Amiens,
tylr. Dreflins is aifo expedited every hour
from his lordship with dispatches of the
utmost importance, which will contain,
it is said, the ultimatum of the French
court, decisive either of peace or war.
In consequence of the former of these
dispatches a council of the cabinet ministers
was early summoned, on Saturday last, at
lord Hawkefbury’s office. The duke of
Portland, earls Weftmoreland and St.
Vincent, lords Pelham and Hobart, and
Mr. Addington attended.
Our last intelligence precisely accords
with that which we laid before our
some days ago, viz. that marquis Corn
wallis had required a definitive anlwer on
or before the 12th or 13th instant. The
moment is certainly arrived when jUye
grand question of peace or war is to be 1
determined ; the crisis agitates every mind ;
yet we still continue to hope, and to be
lieve, that peace will be the result : But
fhouid that desirable event not take place,
we ftial! at lead have the fatisfaifion of
knowing what has been the cause of ail
this tedious procrastination, and to
conduit the blame of renewed warfare is
to be laid ; for our own part, we think
that there has been a twofold fault, and
that the ambition of Buonaparte, aiting
upon the supineness which ministers have
till very lately displayed, has not orlv
procraflinated, but rendered the event in
some degree doubtful.
