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The Examination Number XIV, [2 March 1802]

The Examination.1
Number XIV.

[New York, March 2, 1802]

In the course of the debate in the Senate, much verbal criticism has been indulged; many important inferences have been attempted to be drawn from distinctions between the words shall and may.2 This species of discussion will not be imitated, because it is seldom very instructive or satisfactory. These terms, in particular cases, are frequently synonymous, and are imperative or permissive, directing or enabling, according to the relations in which they stand to other words. It is however certain that the arguments even from this source, greatly preponderate against the right of Congress to abolish the Judges.

But there has been one argument, rather of a verbal nature, upon which some stress has been laid, which shall be analized; principally, to furnish a specimen of the wretched expedients to which the supporters of the repeal are driven. It is this, “The tenure of an office is not synonymous with its existence. Though Congress may not annul the tenure of a Judicial Office, while the office itself continues; yet it does not follow that they may not destroy its existence.3

The constituent parts of an office are its authorities, duties and duration. These may be denominated the elements of which it is composed. Together they form its essence or existence.* It is impossible to separate even in idea the duration from the existence: The office must cease to exist when it ceases to have duration. Let it be observed, that the word tenure is not used in the constitution, and that in the debate it has been the substitute for duration. The words “The Judges shall hold their offices during good behavior,” are equivalent to these other words; The offices of the Judges shall endure or last so long as they behave well.

The conclusions from these principles are that existence is a whole which includes tenure or duration as a part; that it is impossible to annul the existence of an office without destroying its tenure; and consequently that a prohibition to destroy the tenure is virtually and substantially a prohibition to abolish the office. How contemptible then the sophism that Congress may not destroy the tenure; but may annihilate the office!

It has now been seen, that this power of annihilation is not reconcileable with the language of the constitutional instrument, and that no rule of constitutional law, which has been relied upon, will afford it support. Can it be better defended by any principle of constitutional policy?

To establish the affirmative of this question it has been argued, that if the Judges hold their offices by a title absolutely independent of the Legislative will, the Judicial Department becomes a colossal and overbearing power, capable of degenerating into a permanent tyranny, at liberty, if audacious and corrupt enough, to render the authority of the Legislature nugatory, by expounding away the laws, and to assume a despotic controul over the rights of person and property.4

To this argument (which supposes the case of a palpable abuse of power) a plain and conclusive answer is, that the constitution has provided a complete safeguard in the authority of the House of Representatives to impeach; of the Senate to condemn. The Judges are in this way amenable to the public Justice for misconduct; and upon conviction, removeable from office. In the hands of the Legislature itself is placed the weapon by which they may be put down and the other branches of the government protected. The pretended danger, therefore, is evidently imaginary—the security perfect!

Reverse the Medal. Concede to the Legislature a legal discretion to abolish the Judges, where is the defence? where the security for the Judicial Department? There is absolutely none. This most valuable member of the government, when rightly constituted, the surest guardian of person and property, of which stability is a prime characteristic; losing at once its most essential attributes, and doomed to fluctuate with the variable tide of faction, degenerates into a disgusting mirror of all the various, malignant and turbulent humors of party-spirit.

Let us not be deceived. The real danger is on the side of that foul and fatal doctrine, which emboldens its votaries, with daring front and unhallowed step, to enter the holy temple of Justice and pluck from their seats the venerable personages, who, under the solemn sanction of the Constitution, are commissioned to officiate there; to guard that sacred compact with jealous vigilance; to dispense the laws with a steady and impartial hand; unmoved by the storms of faction, unawed by its powers, unseduced by its favors; shielding right and innocence from every attack; resisting and repressing violence from every quarter. ’Tis from the triumph of that execrable doctrine that we may have to date the downfall of our Government and with it, of the whole fabric of Republican Liberty. Who will have the folly to deny that the definition of despotism is the concentration of all the powers of Government in one person or in one body? Who is so blind as not to see that the right of the Legislature to abolish the Judges at pleasure destroys the independence of the Judicial Department, and swallows it up in the impetuous vortex of Legislative influence? Who is so weak as to hope that the Executive, deprived of so powerful an auxiliary will long survive? What dispassionate man can withstand the conviction that the boundaries between the departments will be thenceforth nominal; and that there will be no longer more than one active and efficient department?

It is a fundamental maxim of free government, that the three great departments of power, Legislative, Executive and Judiciary, shall be essentially distinct and independent the one of the other. This principle, very influential in most of our state constitutions, has been particularly attended to in the Constitution of the United States; which, in order to give effect to it, has adopted a precaution peculiar to itself, in the provisions that forbid the Legislature to vary in any way the compensation of the President to diminish that of a Judge.

It is a principle equally sound, that though in a government like that of Great Britain, having an hereditary chief with vast prerogatives, the danger to Liberty, by the predominance of one department over the other, is on the side of the Executive; yet in popular forms of government, this danger is chiefly to be apprehended from the Legislative branch.

The power of legislation is in its own nature the most comprehensive and potent of the three great subdivisions of sovereignty. It is the will of the government; it prescribes univerally the rule of action, and the sanctions which are to enforce it. It creates and regulates the public force, and it commands the public purse. If deposited in an elective representative of the people, it has, in most cases, the body of the nation for its auxiliary, and generally acts with all the momentum of popular favor. In every such government it is consequently an organ of immense strength. But when there is an hereditary chief magistrate, cloathed with dazzling prerogatives and a great patronage, there is a powerful counterpoise; which, in most cases, is sufficient to preserve the equilibrium of the government; in some cases to incline the scale too much to its own side.

In governments wholly popular or representative, there is no adequate counterpoise. Confidence in the most numerous, or Legislative Department, and jealousy of the Executive Chief, form the genius of every such government. That jealousy, operating in the constitution of the Executive, causes this organ to be intrinsically feeble; and withholding in the course of administration accessary means of force and influence, is for the most part vigilant to continue it in a state of impotence. The result is that the Legislative body, in this species of government, possesses additional resources of power and weight; while the Executive is rendered much too weak for competition; almost too weak for self defence.

A third principle, not less well founded than the other two, is that the Judiciary department is naturally the weakest of the three. The sources of strength to the Legislative branches have been briefly delineated. The Executive by means of its several active powers; of the dispensations of honors and emoluments and of the direction of the public force is evidently the second in strength. The Judiciary, on the other hand, can ordain nothing. It commands neither the press nor the sword. It has scarcely any patronage. Its functions are not active but deliberative. Its main province is to declare the meaning of the laws; and in extraordinary cases it must even look up to the Executive aid for the execution of its decisions. Its chief strength is in the veneration which it is able to inspire by the wisdom and rectitude of its judgments.

This character of the Judiciary clearly indicates that it is not only the weakest of the three departments of power; but, also as it regards the security and preservation of civil liberty by far the safest. In a conflict with the other departments it will be happy if it can defend itself—to annoy them is beyond its power. In vain would it singly attempt enterprises against the rights of the citizen. The other departments could quickly arrest its arm, and punish its temerity. It can only then become an effectual instrument of oppression, when it is combined with one of the more active and powerful organs; and against a combination of this sort, the true and best guard is a complete independence on each and both of them. Its dependence on either will imply and involve a subserviency to the views of the department on which it shall depend. Its independence of both will render it a powerful check upon the others, and a precious shield to the rights of persons and property. Safety, Liberty, are therefore inseparably connected with the real and substantial Independence of the Courts and Judges.

It is plainly to be inferred from the instrument itself, that these were governing principles in the formation of our Constitution: that they were in fact so, will hereafter be proved by the cotemporary exposition of persons who must be supposed to have understood the views with which it was framed, having been themselves members of the body that framed it. Those principles suggest the highest motives of Constitutional policy against that construction, which places the existence of the Judges at the mercy of the Legislature. They instruct us, that to prevent a concentration of powers, the essence of despotism, it is essential that the departments among which they shall be distributed, should be effectually independent of each other; and that it being impossible to reconcile this independence with a right in any one or two of them to annihilate at discretion the organs of the other, it is contrary to all just reasoning to imply or infer such a right. So far from its being correct, that an express interdiction is requisite to deprive the Legislature of the power to abolish the Judges, that the very reverse is the true position. It would require a most express provision, susceptible of no other interpretation, to confer on that branch of the government an authority, so dangerous to the others, in opposition to the strong presumptions, which in conformity with the fundamental maxims of free government, arise from the care taken in the Constitution, to establish and preserve the reciprocal and complete independence of the respective branches, first by a separate organization of the departments, next by a precise definition of the powers of each, lastly by precautions to secure to each a permanent support.

Lucius Crassus.

New-York Evening Post, March 2, 1802.

2H is referring to Article III, Section 1, of the Constitution, which states: “The judicial 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.” On January 8, 1802, John Breckenridge of Kentucky made a speech in the Senate in favor of repealing the Judiciary Act of 1801, in which he referred to this section of the Constitution and stated: “By this clause Congress may, from time to time, establish inferior courts; but it is clearly a discretionary power, and they may not establish them. The language of the Constitution is very different when regulations are not left discretional. For example, ‘The trial,’ says the Constitution, ‘of all crimes (except in cases of impeachment) shall be by jury: representatives and direct taxes shall be apportioned according to numbers. All revenue bills shall originate in the House of Representatives,’ &c. It would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although Congress may, from time to time, establish inferior courts, yet, when established, that they shall not be abolished by a subsequent Congress possessing equal powers. It would be a paradox in legislation” (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, 27–28). For further examples of the discussion of this point in the Senate, see 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, 33, 36, 38–39.

3For examples of this argument, see 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, 28–29, 32–33.

4For an example of this argument, see a speech delivered in the Senate by James Jackson of Georgia on January 12, 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, 46–51).

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.]

* The renumeration or recompence is not added, because it is most properly an accessory.

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