[New York, March 19, 1802]
The President, as a politician, is in one sense particularly unfortunate. He furnishes frequent opportunities of arraying him against himself—of combating his opinions at one period by his opinions at another. Without doubt, a wise and good man may, on proper grounds relinquish an opinion which he has once entertained, and the change may even serve as a proof of candour and integrity. But with such a man, especially in matters of high public importance, changes of this sort must be rare. The contrary is always a mark either of a weak and versatile mind, or of an artificial and designing character, which, accommodating its creed, to circumstances, takes up or lays down an article of faith, just as may suit a present convenience.
The question, in agitation, respecting the Judiciary Department, calls up another instance of opposition, between the former ideas of Mr. Jefferson, and his recent conduct. The leading positions which have been advanced as explanatory of the policy of the Constitution, in the structure of the different departments, and as proper to direct the interpretation of the provisions which were contrived to secure the independence and firmness of the Judges, are to be seen in a very emphatical and distinct form in the Notes on Virginia.2 The passage in which they appear, deserves to be cited at length, as well for its intrinsic merit, as by way of comment upon the true character of its author; presenting an interesting contrast between the maxims, which experience had taught him while Governor of Virginia, and those which now guide him as the official head of a great party in the United States.
It is in these words—
“All the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the Republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that Convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments, should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor if made can be effectual; because in that case, they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly in many instances decided rights which should have been left to judiciary controversy; and the direction of the executive, during the whole time of their session, is becoming habitual and familiar.”3
This passage fully recognises these several important truths: that the tendency of our governments is towards a Concentration of the Powers of the different departments in the Legislative Body; that such a Concentration, is precisely the Definition of Despotism, and that an effectual barrier between the respective departments ought to exist. It also, by a strong implication, admits that offices during good behaviour are independent of the Legislature for their continuance in office. This implication seems to be contained in the following sentence: “The Judiciary and Executive members were left dependent on the Legislature for their subsistence in office, and some of them for their continuance in it.” The word ‘some,’ implies that others were not left thus dependent; and to what description of officers can the exception be better applied, than to the Judges, the tenure of whose offices was during good behaviour?
The sentiments of the President delivered at a period when he can be supposed to have been under no improper bias, must be regarded by all those, who respect his judgement, as no light evidence of the truth of the doctrine for which we contend. Let us, however, resume and pursue the subject on its merits, without relying upon the aid of so variable and fallible an authority.
At an early part of the discussion in this Examination, a construction of the Constitution was suggested, to which it may not be amiss to return: It amounts to this, that Congress have power to new-model, or even to abrogate an Inferior Court, but not to abolish the office or emoluments of a Judge of such court previously appointed.4 In the Congressional debates, some of the speakers against the repealing law, appear to have taken it for granted, that the abrogation of the court must draw with it the abolition of the Judges,5 and therefore, have denied in totality, the power of abrogation. In the course of these papers too, it has been admitted, that if the preservation of the Judges cannot be reconciled with the power to annul the Court, then the existence of this power is rightly denied.6 But in an affair of such vast magnitude, it is all-important to survey with the utmost caution the ground to be taken, and then to take and maintain it with inflexible fortitude and perseverence. Truth will be most likely to prevail, when the arguments which support it stop at a temperate mean, consistent with practical convenience. Excess is always error. There is hardly any theoretic hypothesis, which, carried to a certain extreme, does not become practically false. In construing a Constitution, it is wise, as far as possible to pursue a course, which will reconcile essential principles with convenient modifications. If guided by this spirit, in the great question which seems destined to decide the fate of our Government, it is believed that the result will accord with the construction, that Congress have a right to change or abolish Inferior Courts, but not to abolish the actual Judges.
Towards the support of this construction, it has been shewn in another place,7 that the Courts and the Judges are distinct legal entities, which, in contemplation of law, may exist, independently the one of the other—mutually related, but not inseparable. The act proposed to be repealed exemplifies this idea in practice. It abolishes the District Courts of Tennessee and Kentucky, and transfers their Judges to one of the Circuit Courts.8 Though the authorities and jurisdiction of those Courts are vested in the Circuit Court, to which the Judges are transferred; yet the identity of the Courts ceases. It cannot be maintained that Courts so different in their organization and jurisdiction, are the same; nor could a legislative transfer of the Judges have been constitutional, but upon the hypothesis, that the office of a Judge may survive the Court of which he is a member: a new appointment by the Executive, of two additional Judges for the Circuit Court, would otherwise have been necessary.
This precedent in all its points is correct, and exhibits a rational operation of the construction which regards the office of the Judge, as distinct from the Court, as one of the elements or constituent parts of which it is composed: not as a mere incident that must perish with its principal.
It will not be disputed, that the Constitution might have provided in terms, and with effect, that an Inferior Court which had been established by law, might by law be abolished; nevertheless, that the Judges of such Courts should retain the offices of Judges of the United States, with the emoluments before attached to their offices. The operation of such a provision would be, that when the Court was abolished, all the functions to be executed in that Court, would be suspended, and the Judge could only continue to exert the authorities and perform the duties which might before have been performed, without reference to causes pending in Court; but he would have the capacity to be annexed to another Court, without the intervention of a new appointment, and by that annexation, simply to renew the exercise of the authorities and duties which had been suspended.
If this might have been the effect of positive and explicit provision, why may it not likewise be the result of provisions, which, presenting opposite considerations, point to the same conclusion, as a compromise calculated to reconcile those considerations with each other and to unite different objects of public utility? Surely the affirmative infringes no principle of legal construction, transgresses no rule of good sense.
Let us then enquire, whether there are not in this case opposite and conflicting considerations, demanding a compromise of this nature? On the one hand, it is evident that if an inferior court once instituted, though found inconvenient, cannot be abolished, this is to entail upon the community the mischief, be it more or less, of a first error in the administration of the government. On the other hand, it is no less evident, that if the judges hold their offices at the discretion of the legislature, they cease to be a co-ordinate, and become a dependent branch of the government; from which dependence mischiefs infinitely greater are to be expected.
All these mischiefs, the lesser as well as the greater, are avoided by saying, “Congress may abolish the Courts, but the Judges shall retain their offices with the appurtenant emoluments.” The only remaining inconvenience then, will be one too insignificant to weigh in a national scale, that is, the expence of the compensations of the Incumbents, during their lives. The future and permanent expence will be done away.
But will this construction secure the benefits proposed by the Constitution from the independent tenure of Judicial Office? Substantially it will. The main object is to preserve the judges from being influenced by an apprehension of the loss of the advantages of office. As this loss could not be incurred, that influence would not exist. Their firmness could not be assailed by the danger of being superseded, and perhaps consigned to want. Let it be added, that when it was understood not to be in the power of the Legislature to deprive the Judges of their offices and emoluments, it would be a great restraint upon the factious motives, which might induce the abolition of a court. This would be much less likely to happen unless for genuine reasons of public utility; and of course there would be a much better prospect of the stability of Judiciary establishments.
New-York Evening Post, March 19, 1802.
1. For background to this document, see the introductory note to “The Examination Number I,” December 17, 1801. See also “The Examination Number V,” December 29, 1801; “The Examination Number VI,” January 2, 1802; “Remarks on the Repeal of the Judiciary Act,” February 11, 1802, note 1; “The Examination Number XII,” February 23, 1802; “The Examination Number XIII,” February 27, 1802; “The Examination Number XIV,” March 2, 1802; “The Examination Number XV,” March 3, 1802.
3. This quotation is taken from Jefferson’s answer to Query VIII in Notes on the State of Virginia. Written by Thomas Jefferson (Philadelphia: Printed and sold by Prichard and Hall, in Market Street, Between Front and Second Streets, 1788).
5. For an example of this approach, see the speech which James A. Bayard of Delaware delivered to the House of Representatives on February 20, 1802 (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1849). description ends , XI, 629–50).