I must be allowed to express my surprise at the course pursued by
the honorable gentleman from Virginia, Mr. Giles, in the remarks
which be has made on the subject before us. I had expected that he
would have adopted a different line of conduct. I had expected it
as well from that sentiment of magnanimity which ought to have been
inspired by a sense of the high ground he holds on the floor of this
House, as from the professions of a desire to conciliate, which he
has so repeatedly made during the session. We have been invited to
bury the hatchet, and brighten the chain of peace. We were disposed
to meet on middle-ground. We had assurances from the gentleman that
he would abstain from reflections on the past, and that his only
wish was that we might unite in future in promoting the welfare of
our common country. We confided in the gentleman's sincerity, and
cherished the hope, that if the divisions of party were not banished
from the House, its spirit would be rendered less intemperate. Such
were our impressions, when the mask was suddenly thrown aside, and
we saw the torch of discord lighted and blazing before our eyes.
Every effort has been made to revive the animosities of the House
and inflame the passions of the nation. I am at no loss to perceive
why this course has been pursued. The gentleman has been unwilling
to rely upon the strength of his subject, and has, therefore,
determined to make the measure a party question. He has probably
secured success, but would it not have been more honorable and more
commendable to have left the decision of a great constitutional
question to the understanding, and not to the prejudices of the
House? It was my ardent wish to discuss the subject with calmness
and deliberation, and I did intend to avoid every topic which could
awaken the sensibility of party. This was my temper and design when
I took my seat yesterday. It is a course at present we are no
longer at liberty to pursue. The gentleman has wandered far, very
far, from the points of the debate, and has extended his
animadversions to all the prominent measures of the former
administrations. In following him through his preliminary
observations, I necessarily lose sight of the bill upon your table.
The gentleman commenced his strictures with the philosophic
observation, that it was the fate of mankind to hold different
opinions as to the form of government which was preferable; that
some were attached to the monarchical, while others thought the
republican more eligible. This, as an abstract remark, is certainly
true, and could have furnished no ground of offense, if it had not
evidently appeared that an allusion was designed to be made to the
parties in this country. Does the gentleman suppose that we have a
less lively recollection than himself, of the oath which we have
taken to support the constitution; that we are less sensible of the
spirit of our government, or less devoted to the wishes of our
constituents? Whatever impression it might be the intention of the
gentleman to make, he does not believe that there exists in the
country an anti-republican party. He will not venture to assert
such an opinion on the floor of this House. That there may be a few
individuals having a preference for monarchy is not improbable; but
will the gentleman from Virginia, or any other gentleman, affirm in
his place, that there is a party in the country who wish to
establish monarchy? Insinuations of this sort belong not to the
legislature of the Union. Their place is an election ground, or an
alehouse. Within these walls they are lost; abroad, they have had
an effect, and I fear are still capable of abusing popular
credulity.
We were next told of the parties which have existed, divided by the
opposite views of promoting executive power and guarding the rights
of the people. The gentleman did not tell us in plain language, but
he wished it to be understood, that he and his friends were the
guardians of the people's rights, and that we were the advocates of
executive power.
I know that this is the distinction of party which some gentlemen
have been anxious to establish; but it is not the ground on which we
divide. I am satisfied with the constitutional powers of the
executive, and never wished nor attempted to increase them; and I do
not believe, that gentlemen on the other side of the House ever had
a serious apprehension of danger from an increase of executive
authority. No, sir, our views, as to the powers which do and ought
to belong to the general and State governments, are the true sources
of our divisions. I co-operate with the party to which I am
attached, because I believe their true object and end is an honest
and efficient support of the general government, in the exercise of
the legitimate powers of the constitution.
I pray to God I may be mistaken in the opinion I entertain as to the
designs of gentlemen to whom I am opposed. Those designs I believe
hostile to the powers of this government. State pride extinguishes a
national sentiment. Whatever power is taken from this government is
given to the States.
The ruins of this government aggrandize the States. There are
States which are too proud to be controlled; whose sense of
greatness and resource renders them indifferent to our protection,
and induces a belief that if no general government existed, their
influence would be more extensive, and their importance more
conspicuous. There are gentlemen who make no secret of an extreme
point of depression, to which the government is to be sunk. To that
point we are rapidly progressing. But I would beg gentlemen to
remember that human affairs are not to be arrested in their course,
at artificial points. The impulse now given may be accelerated by
causes at present out of view. And when those, who now design well,
wish to stop, they may find their powers unable to resist the
torrent. It is not true, that we ever wished to give a dangerous
strength to executive power. While the government was in our hands,
it was our duty to maintain its constitutional balance, by
preserving the energies of each branch. There never was an attempt
to vary the relation of its powers. The struggle was to maintain
the constitutional powers of the executive. The wild principles of
French liberty were scattered through the country. We had our
Jacobins and disorganizes. They saw no difference between a king
and a president, and as the people of France had put down their
King, they thought the people of America ought to put down their
President. They, who considered the constitution as securing all
the principles of rational and practicable liberty, who were
unwilling to embark upon the tempestuous sea of revolution in
pursuit of visionary schemes, were denounced as monarchists. A line
was drawn between the government and the people, and the friends of
the government were marked as the enemies of the people. I hope,
however, that the government and the people are now the same; and I
pray to God, that what has been frequently remarked, may not, in
this case, be discovered to be true that they, who have the name of
the people the most often in their mouths, have their true interests
the most seldom at their hearts.
The honorable gentleman from Virginia wandered to the very confines
of the federal administration, in search of materials the most
inflammable and most capable of kindling the passions of his
party. ...
I did suppose, sir, that this business was at an end; and I did
imagine, that as gentlemen had accomplished their object, they would
have been satisfied. But as the subject is again renewed, we must be
allowed to justify our conduct. I know not what the gentleman calls
an expression of the public will. There were two candidates for the
office of President, who were presented to the House of
Representatives with equal suffrages. The constitution gave us the
right and made it our duty to elect that one of the two whom we
thought preferable. A public man is to notice the public will as
constitutionally expressed. The gentleman from Virginia, and many
others, may have had their preference; but that preference of the
public will not appear by its constitutional expression. Sir, I am
not certain that either of those candidates had a majority of the
country in his favor. Excluding the State of South Carolina, the
country was equally divided. We know that parties in that State were
nearly equally balanced, and the claims of both the candidates were
supported by no other scrutiny into the public will than our
official return of votes. Those votes are very imperfect evidence of
the true will of a majority of the nation. They resulted from
political intrigue and artificial arrangement.
When we look at the votes, we must suppose that every man in
Virginia voted the same way. These votes are received as a correct
expression of the public will. And yet we know that if the votes of
that State were apportioned according to the several voices of the
people, that at least seven out of twenty-one would have been
opposed to the successful candidate. It was the suppression of the
will of one-third of Virginia, which enables gentlemen now to say
that the present chief magistrate is the man of the people. I
consider that as the public will, which is expressed by
constitutional organs. To that will I bow and submit. The public
will, thus manifested, gave to the House of Representatives the
choice of the two men for President. Neither of them was the man
whom I wished to make President; but my election was confined by the
constitution to one of the two, and I gave my vote to the one whom I
thought was the greater and better man. That vote I repeated, and
in that vote I should have persisted, had I not been driven from it
by imperious necessity. The prospect ceased of the vote being
effectual, and the alternative only remained of taking one man for
President, or having no President at all. I chose, as I then
thought, the lesser evil.
From the scene in this House, the gentleman carried us to one in the
Senate. I should blush, sir, for the honor of the country, could I
suppose that the law, designed to be repealed, owed its support in
that body to the motives which have been indicated. The charge
designed to be conveyed, not only deeply implicates the integrity of
individuals of the Senate, but of the person who was then the chief
magistrate. The gentleman, going beyond all precedent, has mentioned
the names of members of that body, to whom commissions issued for
offices not created by the bill before them, but which that bill, by
the promotions it afforded, was likely to render vacant. He has
considered the scandal of the transaction as aggravated by the
issuing of commissions for offices not actually vacant, upon the
bare presumption that they would become vacant by the incumbents
accepting commissions for higher offices which were issued in their
favor. The gentleman has particularly dwelt upon the indecent
appearance of the business, from two commissions being held by
different persons at the same time for the same office.
I beg that it will be understood that I mean to give no opinion as
to the regularity of granting a commission for a judicial office,
upon the probability of a vacancy before it is actually vacant; but
I shall be allowed to say that so much doubt attends the point, that
an innocent mistake might be made on the subject. I believe, sir,
it has been the practice to consider the acceptance of an office as
relating to the date of the commission. The officer is allowed his
salary from that date, upon the principle that the commission is a
grant of the office, and the title commences with the date of the
grant. This principle is certainly liable to abuse, but where there
was a suspicion of abuse I presume the government would depart from
it. Admitting the office to pass by the commission, and the
acceptance to relate to its date, it then does not appear very
incorrect, in the case of a commission for the office of a circuit
judge, granted to a district judge, as the acceptance of the
commission for the former office relates to the date of the
commission, to consider the latter office as vacant from the same
time. The offices are incompatible. You cannot suppose the same
person in both offices at the same time. From the moment,
therefore, that you consider the office of circuit judge as filled
by a person who holds the commission of district judge, you must
consider the office of district judge as vacated. The grant is
contingent. If the contingency happen, the office vests from the
date of the commission; if the contingency does not happen, the
grant is void. If this reasoning be sound, it was not irregular, in
the late administration, after granting a commission to a district
judge, for the place of a circuit judge, to make a grant of the
office of the district judge, upon the contingency of his accepting
the office of circuit judge.
The legislative power of the government is not absolute, but
limited. If it be doubtful whether the legislature can do what the
constitution does not explicitly authorize, yet there can be no
question, that they cannot do what the constitution expressly
prohibits. To maintain, therefore, the constitution, the judges are
a check upon the legislature. The doctrine, I know, is denied, and
it is, therefore, incumbent upon me to show that it is sound. It
was once thought by gentlemen, who now deny the principle, that the
safety of the citizen and of the States rested upon the power of the
judges to declare an unconstitutional law void. How vain is a paper
restriction if it confers neither power nor right. Of what
importance is it to say, Congress are prohibited from doing certain
acts, if no legitimate authority exists in the country to decide
whether an act done is a prohibited act? Do gentlemen perceive the
consequences which would follow from establishing the principle,
that Congress have the exclusive right to decide upon their own
powers? This principle admitted, does any constitution remain?
Does not the power of the legislature become absolute and
omnipotent? Can you talk to them of transgressing their powers,
when no one has a right to judge of those powers but themselves?
They do what is not authorized, they do what is inhibited, nay, at
every step, they trample the constitution under foot; yet their acts
are lawful and binding, and it is treason to resist them. How ill,
sir, do the doctrines and professions of these gentlemen agree.
They tell us they are friendly to the existence of the States; that
they are the friends of federative, but the enemies of a
consolidated general government, and yet, sir, to accomplish a
paltry object, they are willing to settle a principle which, beyond
all doubt, would eventually plant a consolidated government, with
unlimited power, upon the ruins of the State governments.
Nothing can be more absurd than to contend that there is a practical
restraint upon a political body, who are answerable to none but
themselves for the violation of the restraint, and who can derive,
from the very act of violation, undeniable justification of their
conduct.
If, Mr. Chairman, you mean to have a constitution, you must discover
a power to which the acknowledged right is attached of pronouncing
the invalidity of the acts of the legislature, which contravened the
instrument.
Does the power reside in the States? Has the legislature of a State
a right to declare an act of Congress void? This would be erring
upon the opposite extreme. It would be placing the general
government at the feet of the State governments. It would be
allowing one member of the Union to control all the rest. It would
inevitably lead to civil dissension and a dissolution of the general
government. Will it be pretended that the State courts have the
exclusive right of deciding upon the validity of our laws?
I admit they have the right to declare an act of Congress void. But
this right they enjoy in practice, and it ever essentially must
exist, subject to the revision and control of the courts of the
United States. If the State courts definitely possessed the right
of declaring the invalidity of the laws of this government, it would
bring us in subjection to the States. The judges of those courts,
being bound by the laws of the State, if a State declared an act of
Congress unconstitutional, the law of the State would oblige its
courts to determine the law invalid. This principle would also
destroy the uniformity of obligation upon all the States, which
should attend every law of this government. If a law were declared
void in one State, it would exempt the citizens of that State from
its operation, whilst obedience was yielded to it in the other
States. I go further, and say, if the States or State courts had a
final power of annulling the acts of this government, its miserable
and precarious existence would not be worth the trouble of a moment
to preserve. It would endure but a short time, as a subject of
derision, and, wasting into an empty shadow, would quickly vanish
from our sight.
Let me now ask, if the power to decide upon the validity of our laws
resides with the people. Gentlemen cannot deny this right to the
people. I admit they possess it. But if, at the same time, it does
not belong to the courts of the United States, where does it lead
the people? It leads them to the gallows. Let us suppose that
Congress, forgetful of the limits of their authority, pass an
unconstitutional law. They lay a direct tax upon one State and
impose none upon the others. The people of the State taxed contest
the validity of the law. They forcibly resist its execution. They
are brought by the executive authority before the courts upon
charges of treason. The law is unconstitutional, the people have
done right, but the court are bound by the law, and obliged to
pronounce upon them the sentence which it inflicts. Deny to the
courts of the United States the power of judging upon the
constitutionality of our laws, and it is vain to talk of its
existing elsewhere. The infractors of the laws are brought before
these courts, and if the courts are implicitly bound, the invalidity
of the laws can be no defense. There is, however, Mr. Chairman,
still a stronger ground of argument upon this subject. I shall
select one or two cases to illustrate it. Congress are prohibited
from passing a bill of attainder; it is also declared in the
constitution, that "no attainder of treason shall work corruption of
blood or forfeiture, except during the life of the party attainted."
Let us suppose that Congress pass a bill of attainder, or they
enact, that any one attainted of treason shall forfeit, to the use
of the United States, all the estate which he held in any lands or
tenements.
The party attainted is seized and brought before a federal court,
and an award of execution passed against him. He opens the
constitution and points to this line, "no bill of attainder or _ex_
_post_ _facto_ law shall be passed." The attorney for the United
States reads the bill of attainder.
The courts are bound to decide, but they have only the alternative
of pronouncing the law or the constitution invalid. It is left to
them only to say that the law vacates the constitution, or the
constitution voids the law. So, in the other case stated, the heir
after the death of his ancestor, brings his ejectment in one of the
courts of the United States to recover his inheritance. The law by
which it is confiscated is shown. The constitution gave no power to
pass such a law. On the contrary, it expressly denied it to the
government. The title of the heir is rested on the constitution, the
title of the government on the law. The effect of one destroys the
effect of the other; the court must determine which is effectual.
There are many other cases, Mr. Chairman, of a similar nature to
which I might allude. There is the case of the privilege of
_habeas_ _corpus_, which cannot be suspended but in times of
rebellion or invasion. Suppose a law prohibiting the issue of the
writ at a moment of profound peace! If, in such case, the writ were
demanded of a court, could they say, it is true the legislature were
restrained from passing the law suspending the privilege of this
writ, at such a time as that which now exists, but their mighty
power has broken the bonds of the constitution, and fettered the
authority of the court? I am not, sir, disposed to vaunt, but
standing on this ground, I throw the gauntlet to any champion upon
the other side. I call upon them to maintain, that, in a collision
between a law and the constitution, the judges are bound to support
the law, and annul the constitution. Can the gentlemen relieve
themselves from this dilemma? Will they say, though a judge has no
power to pronounce a law void, he has a power to declare the
constitution invalid?
The doctrine for which I am contending, is not only clearly
inferable from the plain language of the constitution, but by law
has been expressly declared and established in practice since the
existence of the government.
The second section of the third article of the constitution
expressly extends the judicial power to all cases arising under the
constitution, laws, etc. The provision in the second clause of the
sixth article leaves nothing to doubt. "This constitution and the
laws of the United States, which shall be made in pursuance thereof
etc., shall be the supreme law of the land." The constitution is
absolutely the supreme law. Not so the acts of the legislature!
Such only are the law of the land as are made in pursuance of the
constitution.
I beg the indulgence of the committee one moment, while I read the
following provision from the twenty-fifth section of the judicial
act of the year 1789: "A final judgment or decree in any suit in the
highest court of law or equity of a state, in which a decision in
the suit could be had, where is drawn in question the validity of a
treaty or statute of, or an authority exercised under, the United
States, and the decision is against their validity, etc., may be
re-examined and reversed or affirmed in the Supreme Court of the
United States, upon a writ of error." Thus, as early as the year
1789, among the first acts of the government, the legislature
explicitly recognized the right of a State court to declare a
treaty, a statute, and an authority exercised under the United
States, void, subject to the revision of the Supreme Court of the
United States; and it has expressly given the final power to the
Supreme Court to affirm a judgment which is against the validity,
either of a treaty, statute, or an authority of the government.
I humbly trust, Mr. Chairman, that I have given abundant proofs from
the nature of our government, from the language of the constitution,
and from legislative acknowledgment, that the judges of our courts
have the power to judge and determine upon the constitutionality of
our laws.
Let me now suppose that, in our frame of government, the judges are
a check upon the legislature; that the constitution is deposited in
their keeping. Will you say afterwards that their existence depends
upon the legislature? That the body whom they are to check has the
power to destroy them? Will you say that the constitution may be
taken out of their hands by a power the most to be distrusted,
because the only power which could violate it with impunity? Can
anything be more absurd than to admit that the judges are a check
upon the legislature, and yet to contend that they exist at the will
of the legislature? A check must necessarily imply a power
commensurate to its end. The political body, designed to check
another, must be independent of it, otherwise there can be no check.
What check can there be when the power designed to be checked can
annihilate the body which is to restrain?
I go further, Mr. Chairman, and take a stronger ground. I say, in
the nature of things, the dependence of the judges upon the
legislature, and their right to declare the acts of the legislature
void, are repugnant, and cannot exist together. The doctrine, sir,
supposes two rights--first, the right of the legislature to
destroy the office of the judge, and the right of the judge to
vacate the act of the legislature. You have a right to abolish by a
law the offices of the judges of the circuit courts; they have a
right to declare the law void. It unavoidably follows, in the
exercise of these rights, either that you destroy their rights, or
that they destroy yours. This doctrine is not a harmless absurdity,
it is a most dangerous heresy. It is a doctrine which cannot be
practiced without producing not discord only, but bloodshed. If you
pass the bill upon your table, the judges have a constitutional
right to declare it void. I hope they will have courage to exercise
that right; and if, sir, I am called upon to take my side, standing
acquitted in ray conscience, and before my God, of all motives but
the support of the constitution of my country, I shall not tremble
at the consequences.
The constitution may have its enemies, but I know that it has also
its friends. I beg gentlemen to pause, before they take this rash
step. There are many, very many, who believe, if you strike this
blow, you inflict a mortal wound on the constitution. There are many
now willing to spill their blood to defend that constitution. Are
gentlemen disposed to risk the consequences? Sir, I mean no threats,
I have no expectation of appalling the stout hearts of my
adversaries; but if gentlemen are regardless of themselves, let them
consider their wives and children, their neighbors and their
friends. Will they risk civil dissension, will they hazard the
welfare, will they jeopardize the peace of the country, to save a
paltry sum of money, less than thirty thousand dollars?
Mr. Chairman, I am confident that the friends of this measure are
not apprised of the nature of its operation, nor sensible of the
mischievous consequences which are likely to attend it. Sir, the
morals of your people, the peace of the country, the stability of
the government, rest upon the maintenance of the independence of the
judiciary. It is not of half the importance in England, that the
judges should be independent of the crown, as it is with us that
they should be independent of the legislature. Am I asked, would
you render the judges superior to the legislature? I answer, no,
but co-ordinate. Would you render them independent of the
legislature? I answer, yes, independent of every power on earth,
while they behave themselves well. The essential interests, the
permanent welfare of society, require this independence; not, sir,
on account of the judge; that is a small consideration, but on
account of those between whom he is to decide. You calculate on the
weaknesses of human nature, and you suffer the judge to be dependent
on no one, lest he should be partial to those on whom he depends.
Justice does not exist where partiality prevails. A dependent judge
cannot be impartial. Independence is, therefore, essential to the
purity of your judicial tribunals.
Let it be remembered, that no power is so sensibly felt by society,
as that of the judiciary. The life and property of every man is
liable to be in the hands of the judges. Is it not our great
interest to place our judges upon such high ground that no fear can
intimidate, no hope seduce them? The present measure humbles them
in the dust, it prostrates them at the feet of faction, it renders
them the tools of every dominant party. It is this effect which I
deprecate, it is this consequence which I deeply deplore. What does
reason, what does argument avail, when party spirit presides?
Subject your bench to the influence of this spirit, and justice bids
a final adieu to your tribunals. We are asked, sir, if the judges
are to be independent of the people? The question presents a false
and delusive view. We are all the people. We are, and as long as
we enjoy our freedom, we shall be divided into parties. The true
question is, shall the judiciary be permanent, or fluctuate with the
tide of public opinion? I beg, I implore gentlemen to consider the
magnitude and value of the principle which they are about to
annihilate. If your judges are independent of political changes,
they may have their preferences, but they will not enter into the
spirit of party. But let their existence depend upon the support of
the power of a certain set of men, and they cannot be impartial.
Justice will be trodden under foot. Your courts will lose all
public confidence and respect.
The judges will be supported by their partisans, who, in their turn,
will expect impunity for the wrongs and violence they commit. The
spirit of party will be inflamed to madness: and the moment is not
far off, when this fair country is to be desolated by a civil war.
Do not say that you render the judges dependent only on the people
You make them dependent on your President. This is his measure.
The same tide of public opinion which changes a President will
change the majorities in the branches of the legislature The
legislature will be the instrument of his ambition, and he will have
the courts as the instruments of his vengeance. He uses the
legislature to remove the judges, that he may appoint creatures of
his own. In effect, the powers of the government will be
concentrated in the hands of one man, who will dare to act with more
boldness, because he will be sheltered from responsibility. The
independence of the judiciary was the felicity of our constitution.
It was this principle which was to curb the fury of party on sudden
changes. The first movements of power gained by a struggle are the
most vindictive and intemperate. Raised above the storm it was the
judiciary which was to control the fiery zeal, and to quell the
fierce passions of a victorious faction.
We are standing on the brink of that revolutionary torrent, which
deluged in blood one of the fairest countries of Europe.
France had her national assembly, more numerous than, and equally
popular with, our own. She had her tribunals of justice, and her
juries. But the legislature and her courts were but the instruments
of her destruction. Acts of proscription and sentences of banishment
and death were passed in the cabinet of a tyrant. Prostrate your
judges at the feet of party, and you break down the mounds which
defend you from this torrent.
I am done. I should have thanked my God for greater power to resist
a measure so destructive to the peace and happiness of the
country. My feeble efforts can avail nothing. But it was my duty to
make them. The meditated blow is mortal, and from the moment it is
struck, we may bid a final adieu to the constitution.