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The Examination Number XVII, [20 March 1802]

The Examination.1
Number XVII.

[New York, March 20, 1802]

It was intended to have concluded the argument respecting the Judiciary Department with the last number. But a speech lately delivered* in the House of Representatives, having since appeared, which brings forward one new position, and reiterates some others in a form well calculated to excite prejudice, it may not be useless to devote some further attention to the subject.

The new position is, that the clause of the constitution enabling the judges to hold their offices during good behaviour, ought to be understood to have reference to the Executive only, Because all offices are holden of the president!!

This is a second example of a doctrine, contrary to every republican idea, broached in the course of this debate by the advocates of the repealing law.* Had a Federalist uttered the sentiment, the cry of monarchy would have resounded from one extremity of the United States to the other. It would have been loudly proclaimed that the mask was thrown aside, by a glaring attempt to transform the servants of the people into the supple tools of Presidential ambition. But now, to justify a plain resolution of the Constitution, and serve a party purpose, this bold and dangerous position is avowed without hesitation or scruple, from a quarter remarkable for the noisy promulgation of popular tenets.

The position is not correct; & it is of a nature to demand the indignant reprobation of every real Republican. In the theory of all the American Constitutions, offices are holden of the Government, in other words of the People through the Government. The appointment is indeed confined to a particular organ, and in instances in which it is not otherwise provided by the Constitution or the Laws, the removal of the officer is left to the pleasure or discretion of that organ. But both these acts suppose merely an instrumentality of the organ; from the necessity or expediency of the people’s acting in such cases by an agent. They do not suppose the substitution of the agent to the people, as the object of the fealty or allegiance of the officer.

It is said that the word holden is a technical form denoting, tenure, and implying that there is one who holds; another of whom the thing is holden. This assertion is indeed agreeable to the common use of the word in our law books. But it is hardly to be presumed that it was employed in the Constitution in so artificial a sense. It is more likely that it was designed to be the equivalent of the words possess, enjoy. Yet let the assertion be supposed correct. In this case, it must also be remembered that the term in this technical sense includes two things, the quantity of interest in the subject holden, and the meritorious consideration upon which the grant is made; which, in many cases includes service or rent, in all fealty; this last forming emphatically the link or tie between the lord and the tenant, the sovereign and the officer. Will any one dare to say that fealty or allegiance, as applied to the government of the United States, is due from the Officer to the President? Certainly it is not. It is due to the people in their political capacity. If so, it will follow that the office is holden not of the President, but of the Nation, Government or State.

It is remarkable that the Constitution has everywhere used the language “Officers of the United States,” as if to denote the relation between the officer and the sovereignty; as if to exclude the dangerous pretension that he is the mere creature of the Executive; accordingly, he is to take an oath “to support the Constitution,” that is, an oath of fidelity to the Government; but no oath of any kind to the President.

In the theory of the British Government, it is entirely different; there the majesty of the nation is understood to reside in the Prince. He is deemed the real Sovereign. He is, emphatically, the fountain of honour. Allegiance is due to him; and consequently, public offices are in the true notion of tenure, holden of him. But in our Constitution the President is not the Sovereign; the sovereignty is vested in the Government, collectively; and it is of the sovereignty, strictly and technically speaking, that a public officer holds his office.

If this view of the matter be just, the basis of the argument, in point of fact, fails; and the principle of it suggests an opposite conclusion, namely, that the condition of good behaviour is obligatory on the whole Government, and ought to operate as a barrier against any authority by which the displacement of the Judges from their office may be, directly or indirectly effected.

In the same speech, much stress has been laid on the words “during their continuance in office,” as implying that the compensation of the Judge was liable to cease by a Legislative discontinuance of the office. If the words had been during the continuance of the office, the argument would have been pertinent; but as they stand, a different inference, if any, is to be drawn from them. They seem rather to relate to the continuance of the officer than to that of the office. But in truth, an inference either way, it is a pitiful subtilty. The clause is neutral; its plain and simple meaning being, that the compensation shall not be diminished while the Judge retains the office. It throws no light whatever on the question how he may lawfully cease to possess it.

Another point is pressed with great earnestness, and with greater plausibility. It is this, that the Constitution must have intended to attach recompence to service, and cannot be supposed to have meant to bestow compensation, where, in the opinion of the Legislature, no service was necessary. Without doubt, the Constitution does contemplate service as the ground of compensation; but it likewise takes it for granted, that the Legislature will be circumspect in the institution of offices, and especially, that it will be careful to establish none of a permanent nature, which will not be permanently useful. And with this general presumption, the Constitution anticipates no material inconvenience from the permanency of Judicial offices connected with permanent emoluments. And though it should have foreseen that cases might happen in which the service was not needed, yet there is no difficulty whatever in the supposition, that it was willing to encounter the triv[i]al contingent evil of having to maintain a few superfluous officers, in order to obtain the immense good, of establishing and securing the Independence of the Courts of Justice. A readiness of the officer to render service to the will of the Government, is the consideration as to him, for continuing the compensation. But the essential inducement is the public utility incident to the Independency of the Judicial character. As to the supposition of an enormous abuse of power, by creating a long list of sinecures, and a numerous host of pensioners; whenever such a thing shall happen, it will constitute one of those extreme cases, which, on the principle of necessity, may authorise extra-constitutional remedies. But these are cases which can never be appealed to for the interpretation of any constitution, which, in meting out the power of the Government, must be supposed to adjust them on the presumption of a fair execution.

A further topic of argument is that our doctrine would equally restrain the legislature from abolishing offices held during pleasure. But this is not true. The two things stand on different ground. First, the Executive has such an agency in the enacting of laws, that as a general rule, the displacement of the officer cannot happen against his pleasure. Second. The pleasure of the President, in all cases not particularly excepted, is understood to be subject to the direction of the law. Third, an officer during pleasure, having merely a revocable interest, the abolition of his office is no infringement of his right. In substance he is a tenant at the will of the government, liable to be discontinued by the Executive Organ, in the form of a removal; by the Legislative in the form of an abolition of the office. These different considerations reconcile the legislative authority to abolish, with the prerogative of the Chief Magistrate to remove, and with the temporary right of individuals to hold. And therefore, there is no reason against the exercise of such an authority; nothing to form an exception to the general competency of the legislative power to provide for the public welfare. Very different is the case as to the judges. The most persuasive motives of public policy, the safety of liberty itself, require that the Judges shall be independent of the Legislative body; in order to maintain effectually the separation between the several departments: The provision that their compensation shall not be diminished, is a clear constitutional indication, that their independence was intended to be guarded against the Legislature. The express declaration that they shall hold their offices during good behavior, that is, upon a condition dependent on themselves, is repugnant to the hypothesis that they shall hold at the mere pleasure of others. Provisions which profess to confer rights on individuals, are always intitled to a liberal interpretation in support of the rights, and ought not, without necessity, to receive an interpretation subversive of them. Provisions which respect the organization of a co-ordinate branch of the Government, ought to be construed in such a manner, as to procure for it, stability and efficiency, rather than in such a manner as render it weak, precarious, and dependent. These various and weighty reasons serve to establish strong lines of discrimination between Judicial and other officers; and to prove that no inference can be drawn from the power of the Legislature as to the latter, which will be applicable to the former.

One more defence of this Formidable Claim is attempted to be drawn from the example of the Judiciary establishment of G. Britain. It is observed that this establishment, the theme of copious eulogy on account of the independence of the Judges, places those officers upon a footing far less firm than will be that of the judges of the U. States, even admitting the right of congress to abolish their offices, by abolishing the Courts of which they are members: And as one proof of the assertion it is mentioned, that the English Judges are removeable by the King on the address of the two houses of Parliament.

All this might be very true, and yet prove nothing as to what is or ought to be the construction of our Constitution on this point. It is plain from the provision respecting compensation, that the framers of that Constitution intended to prop the independence of our Judges beyond the precautions which have been adopted in England, in respect to the Judges of that country; and the intention apparent in this particular, is an argument that the same spirit may have governed other provisions. Cogent reasons have been assigned, applicable to our system, and not applicable to the British system, for securing the independence of our Judges against the Legislative, as well as against the Executive power.

It is alleged that the statute of Great Britain of the 13 of William III.3 was the model from which the framers of our Constitution copied the provisions for the Independence of our Judiciary. It is certainly true, that the idea of the tenure of office during good behaviour, found in several of our Constitutions, is borrowed from that source. But it is evident that the framers of our Federal System did not mean to confine themselves to that model. Hence the restraint of the Legislative discretion, as to compensation; hence the omission of the provision for the removal of the Judges by the Executive, on the application of the two branches of the Legislature; a provision which has been imitated in some of the state governments.

This very omission affords no light inference that it was the intention to depart from the principle of making the Judges removeable from office, by the co-operation or interposition of the Legislative Body. Why else was this qualification of the permanent tenure of the office, which forms a conspicuous feature in the British statute, and in some of the State Constitutions, dropped in the plan of the Federal Government?

The insertion of it in the British statute may also be supposed to have been dictated by the opinion, that without a special reservation, the words during good behaviour would have imported an irrevocable tenure. If so, the precaution will serve to fortify our construction.

But however it may seem in theory, in fact, the difference in the genius of the two governments would tend to render the independence of the Judges more secure under the provision of the British statute, than it would be in this country upon the construction which allows to Congress the right to abolish them. The reason is this—From the Constitution of the British Monarchy, the thing chiefly to be apprehended is, an overbearing influence of the Crown upon the Judges. The jealousy of Executive influence resting upon more powerful motives in that country, than in this, it may be expected to operate as a stronger obstacle there, than here; to an improper combination between the Executive and Legislative departments to invade the Judiciary. Moreover, the British Executive has greater means of resisting Parliamentary control, than an American Executive has of resisting the control of an American Legislature; consequently the former would be in less danger than the latter, of being driven to a concurrence in measures hostile to the Independence of the Judges: And in both these ways there would be greater security for the British than for the American Judges.

Thus is it manifest that in every attitude in which the subject has been placed, the argument is victorious against the power of Congress to abolish the Judges. But what, alas! avails the Demonstration of this important Truth? The fatal blow has been struck!4 It is no longer possible to arrest the rash and daring arm of power! Can the proof that it has acted without right, without warrant—can this heal the wound? Can it renovate the perishing Constitution?—Yes, let us hope that this will be the case. Let us trust that the monitory voice of true patriotism will at length reach the ears of a considerate people, and will rouse them to a united and vigorous exertion for the restoration of their Violated charter; not by means; either disorderly or guilty, but by means which the Constitution will sanction and reason approve. Surely this will be so—A people, who descrying Tyranny at a distance and guided only by the light of just principles, before they had yet felt the scourge of oppression, could nobly hazard all in the defence of their rights;—A people, who sacrificing their prejudices on the altar of experience, and spurning the artifices of insidious Demagogues, could, as a deliberate act of national reason, adopt and establish for themselves a Constitution which bid fair to immortalize their glory and their happiness, such a people, though misled for a period, will not be the final victims of a delusion, alike inauspicious to their reputation and to their welfare. They will not long forget the fame they have so justly merited, nor give the world occasion to ascribe to accident, what has hitherto been imputed to wisdom. They will disdain, to herd with the too long list of degraded nations, who have bowed their necks to unworthy Idols of their own creating—who, immolating their best friends at the shrine of falsehood, have sunk under the yoke of sycophants and betrayers. They will open their eyes and see the precipice on which they stand! They will look around and select from among the throng, the men who have heretofore established a claim to their confidence; the solid basis of able and faithful service; and they will with indignation and scorn, banish from their favour the wretched impostors, who, with honeyed lips and guileful hearts, are luring them to destruction! Admonished by the past, and listening again to the counsels of real friends, they will make a timely retreat from the danger which threatens—they will once more arrange themselves under the banners of the Constitution; with anxious care will repair the breaches that have been made, and will raise new mounds against the future assaults of open or secret enemies!

Lucius Crassus.

New-York Evening Post, March 20, 1802.

1For background to this document, see the introductory note to “The Examination Number 1,” 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; “The Examination Number XVI,” March 19, 1802.

All the points which H raises in this essay were arguments used by William B. Giles of Virginia in a speech he delivered in Congress on February 18, 1802, in favor of the bill repealing the Judiciary Act of 1801 (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, 579–602).

Giles, a leading Republican and a lawyer from Virginia, served in the House of Representatives from 1790 to 1798. In 1793 he introduced the resolutions condemning H’s administration as Secretary of the Treasury (“Report on the Balance of All Unapplied Revenues at the End of the Year 1792 and on All Unapplied Monies Which May Have Been Obtained by the Several Loans Authorized by Law,” February 4, 1793). Giles served in the Virginia General Assembly from 1798 to 1801 and again in the House of Representatives from 1801 to 1803, when he was appointed to the United States Senate to fill the vacancy caused by the resignation of Abraham Venable.

2For another example of this argument, see Stevens T. Mason’s speech in the Senate on January 13, 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, 59–69). Mason was a Republican Senator from Virginia.

3Section III of “An act for the further limitation of the crown, and better securing the rights and liberties of the subject” reads in part: “That … judges commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both houses of parliament it may be lawful to remove them” (13 William III, C. II [1700]).

4“An Act to repeal certain acts respecting the organization of the Courts of the United States; and for other purposes” was passed by the Senate on February 3, 1802, approved by the House of Representatives on March 3, and became law on March 8, 1802 (2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 132). See also “Remarks on the Repeal of the Judiciary Act,” February 11, 1802, note 1.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

* By Mr. Giles

* The other is the denial of the right of the Courts to keep the Legislature within its constitutional bounds by pronouncing laws which transgress them inoperative.2

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