FEBRUARY, 1803. Memorial of United States Judges. gotten; but let us not forget what he always remembered. Let us not forget what is due to ourselves, to our country, to posterity; that posterity to whose judgment we commit our fame, the jewel most dear to honorable minds. Mr. NICHOLAS rose for information. He wished to inquire whether, if the resolution should be adopted, a concurrence of the other House would be necessary, or whether the adoption by the Senate would be final. The VICE PRESIDENT stated that a concurrence of the other House would not be necessary. The resolution was merely a request that the President would take certain steps for ascertaining a certain fact. Mr. COCKE. I rise, Mr. President, to follow the gentleman from New York, and not to bring forward any arguments of my own upon the subject that is now before you. I shall endeavor to follow him step by step, and answer all the observations that he has made. I shall not attempt to imitate his eloquence, and I could not do it if I should try. He has talked about that great man, General WASHINGTON, and said a great many fine things about him which I cannot repeat. I hope that I respect that man as much as the gentleman from New York, but I shall endeavor to lay aside the feelings that I might otherwise have, and keep to the point before the House; and leave him in his grave without disturbing him. It has nothing to do with the question under consideration now. The gentleman has wandered over a great many subjects, and he tells us in one breath, if we do not adopt this resolution, we shall be skulking in some places, lurking holds, I believe he said; and, in another breath, that we shall be dragged before the almighty judges of the nation. Sir, this honorable Senate is an integral part of the Executive, of which the President is the head. How, then, can an inferior subordinate part direct the conduct of the superior part? It is clear, therefore, that we have no right as a part of the Executive, to order or request the President to do this. Have we the right, then, as a part of the Legislature? Can the Legislature assume upon itself the right of directing the Executive? What is it that is intended by this resolution? It is, sir, that the Legislature shall interfere with the Executive, and direct the President to interfere with the Judiciary for the purpose of getting pay for these omnipotent judges. Sir, these judges must depend on the Legislative will for their continuance in office, because the Legislature can make laws and repeal them when they please, and when a law is repealed, and there is nothing for the judges to do, and no office for them to hold, they cannot exercise power or receive pay; and this is according to the Constitution. How, then, can this Senate, by adopting the resolution, aid in procuring pay for these judges when they have nothing to do? Judges they are called; they are not judges; I suppose they have been judges. The gentleman tells us we are going to be engaged in a war-bloody, I suppose-yes, no doubt, very bloody; and, before we get into this dreadful situation, he would do away all opposition and SENATE. party, and unite us like a band of brothers, as he so eloquently described it; and all this he would do by one great and manly exertion, to pay these omnipotent judges, and thus prevent them from dragging us forth to shame and punishment. Sir, my mind has no accordancy with such opinions. We have a good right to say whether we want the services of these judges or not, and if we do not, we don't need to pay them. I remember sir, that, last year, the gentleman gave us a likeness of a boat, and said, though we would not throw the man out of the boat, we would take away the boat from under him, and so he would be drowned. Now, sir, suppose I hire a seaman to work a boat for me, and I tell him that I will give him so much during good behaviour, and after awhile the boat becomes rotten and useless to me; he knows that I hired him to work that boat and for nothing else; can he come forward and say, you shall pay me for working that boat, when there is none to work? So, these judges; we found that we had nothing for them to do; the law was useless to us, and we repealed it; and now shall these judges come and demand their pay? We are also alarmed with a picturation that the other House are going to assume all the power, unless we let the judges come in and keep them back. Sir, I am not afraid of the other House assuming the power. Does the gentleman recollect that they are the immediate Representatives of the people, and that the people will judge whether they conduct well or not? The people don't want these judges as guardians to protect them from the other House, nor from this House, nor any body else, unless, as the gentleman said last year, from their worst enemies, themselves. I believe that the people do not stand in need of guardians; they can take care of themselves, and we need not hire these judges to take care of them. One sentiment of the gentleman I highly accord with, and that is, that force tends to opposition. I believe that this is true. The force exercised, or attempted to be exercised, by Richard Bassett and the others, has highly exercised my opposition to this resolution. They have attempted to compass by force or fraud-I think it is force and fraud both together-the payment of their salaries, and the exercise of powers which have been taken from them and given to others. Mr. President, I shall now make only a small remark on the resolution itself, and sit down. The committee say, in their report, that the Senate cannot decide upon the petition, but the judges must decide it. For this purpose we must go to the common law. Sir, we have heard a great deal about common law, and about informations. I wish to know where we are to stop if we begin to authorize our courts to proceed by information. Are there not other kinds of information known to this common law, besides information in the nature of a quo warranto? If we adopt one form of the common law may not the courts assume more? Has the gentleman never heard of persons being seized and put to death upon information? SENATE. Memorial of United States Judges. I wish to know where we are to stop; and whether we are to follow this common law till it leads us to those ermined and royal robes which the gentleman has so finely described to us? Sir, I believe that we have power, without common law or informations, to decide upon this petition, as well as upon other petitions that are brought before us. The very petitioning of us— -what does that import? Does it not import that we have the power and the right of deciding upon the petition? If the judges did not think that we had the power and the right, what did they petition us for? I conclude, then, that we have the power and the right to grant or deny their request, and therefore I am free to say, that it is inexpedient to pay them for rendering no services. The VICE PRESIDENT rose, and said he must call the attention of the Senate to the point in discussion, which was, whether the Senate would request the President to cause a process to be instituted for the purpose of ascertaining whether the petitioners still hold the office of judge. On this question it could not be in order to go back to a law passed at the last session, and to discuss the merits of that law. Mr. JACKSON said, it appeared by the memorial that the petitioners considered themselves as being still judges, notwithstanding the law of last session. He thought, therefore, it could not be out of order to show that that act deprived them of their offices. Mr. WRIGHT premised, that he would endeavor to confine his remarks to the point before the Senate. He felt no disposition to travel again over the ground which had been traversed at the last session. The petition was addressed to both Houses, and prayed for two things; first, that Congress, in their Legislative capacity, would assign to the petitioners some judicial duties; and secondly, that they would authorize a judicial investigation of their claim to compensation. The committee, therefore, ought to have confined their inquiries to these points, and to have reported accordingly. Instead of that, they had reported a resolution which, if adopted, would be neither a grant nor a denial of the prayer of the petition. In doing this the committee had exceeded their powers, and proposed a measure which the Senate itself was not authorized to adopt. Mr. WRIGHT took a review of the Constitutional powers of the Senate, in its Legislative and Executive capacities, and inquired, Have we any Constitutional authority to make such a request of the President? In what part of the Constitution is such power delegated to this House? Are we to make the request as private gentlemen, or as a Constitutional organ of the Government? If as private gentlemen, the act would clearly be a nullity; the President would still be at liberty to comply with the request, or not, as he might think proper. If as a Constitutional organ of the Government, where is the power given to the Senate? And what would be the remedy if he should refuse to comply? The Senate is the Constitutional adviser of the President in the formation of FEBRUARY, 1803. treaties, and in the appointment of officers, &c. The Constitution expressly declares that the President shall exercise these powers by and with the advice and consent of the Senate. Here, then, it is their right and their duty to advise him. But the Constitution further says: "He shall take care that the laws be faithfully executed." Have the Senate any authority to advise him as to the faithful execution of the laws? They can go no further than they are expressly commissioned by the Constitution. The specification of particular Executive powers, by the Constitution, is a denial of all others. Admissio unius est exclusio alterius ; and, as the Constitution has given no power to this effect, it follows that no such power can be exercised by the Senate. If the courts have power to try the validity of laws of Congress, they can exercise that power as well without the authority of this resolution as with it. If they have not the power, neither this House nor the Legislature can give it them. The duties and the powers of the Supreme Court are defined by the Constitution. Should the Senate, then, adopt the resolution, the Supreme Court would have no power to act under it unless that power is given by the Constitution. Let us, then, examine the authority of this court. The Constitution says: "In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction." Will the gentlemen say that these judges are Ambassadors, other public Ministers or Consuls, or that they are a State? If not, the Supreme Court can have no jurisdiction of the case, and the committee have imposed upon the Senate a resolution which they had no authority to submit. As to the law of the last session, by which these judges had been deprived of their offices, Mr. W. had no fear that the Supreme Court, or anybody else would attempt to set it aside. The whole nation has approved the measure, as many of those who opposed it have fatally experienced. Mr. OGDEN.—Mr. President, upon an examination of this memorial, we shall find that it comprises two different subjects, first, a formal claim of office; second, a prayer that the legality of this claim may be submitted to a judicial decision. In respect to the claim of office, Mr. President, it is stated in the memoria! to have arisen out of the Constitution and a law made in pursuance thereof. This memorial refers to those words of the Constitution where it says: "That the judges both of the Supreme Court and inferior courts shall hold their offices during good behaviour, and shall receive for their services a compensation, which shall not be diminished during their continuance in office." It refers, also, to that act of Congress which, in connexion with the Constitution, gave existence to those judicial offices, to which the memorialists were appointed, and concerning whose continuance in office the question now is. This question is, whether, notwithstanding the repealing law of the last session, the memorialists have any color of claim to retain the charaeter of judges and a capacity to officiate as such, so that existing duties may be defined or FEBRUARY, 1803. Memorial of United States Judges. new ones assigned by law, without any further appointment by the Executive. 6 SENATE. ' of the franchise, as to oust him, or seize it for 'the Crown, but hath long been applied to the I do not mean, Mr. President, to argue upon the mere purposes of trying the civil right, seizing constitutionality of this law of the last session. the franchise, or ousting the wrongful ownerIt has been properly stated from the Chair, that the fine being nominal only." Again, sir, in the such an argument, at this time, would not be in act of Congress entitled an act to establish the order. I trust, however, sir, that it will not be Judicial Courts of the United States, passed Sepconsidered as out of order, to say that a great va- tember 24, 1789, section fourteenth, there is the riance of opinion has existed in regard to the following provision: That all the beforemenoperation of that law. This is proved by the tioned courts of the United States shall have memorial itself, signed by so many characters power to issue writs of scire facias, habeas corwho have been thought worthy of the honorable pus, and other writs not specially provided for appointment of judges of the United States. Wit-by statute, which may be necessary for the exerness, also, the arguments which have been used both in this and the other House, and the recorded negatives in the journals, on the passage of the law. Witness, moreover, the public prints and more private discussions. Witness the great sensibility which it excited in the public mind. All these completely prove what is fully sufficient for my present purpose, namely, that this claim is not merely a pretence, without any color of right. It cannot be said that this claim deserves no attention. It is proper, therefore, that it should be decided upon, and the controversy put at rest. It must be presumed that this Senate, as faithful guardians of the rights of the nation, will adopt some mode whereby these important objects may be effected. cise of their respective jurisdictions, and agreea'ble to the principles and usages of law." Now, sir, as a quo warranto is a writ well known in the usages of the law, it is perfectly clear, under the foregoing authorities, that this question can be tried in the mode contained in the resolution. Should this mode be pursued, the defendant will either deny his claim, which will put an end to the business at once, or he will avow his claim, which will bring it to legal issue. In such case, the defendant will be obliged, for the success of his cause, to establish two things-first, the existence of the office; second, a right to exercise the duties which, now or in any future time, may belong to it, without any further appointment from the President. In order to this, sir, he will be under the necessity of showing, that he had been invested, during good behaviour, with a judicial office, that had been established by the Constitution, and that it was not within the Constitutional power of the Legislature to deprive him of it. In respect to a decision on this claim, Mr. President, the memorialists themselves have appealed to the highest imaginable authority-an authority to which all must bow-I mean the authority of the law. Perhaps, sir, from my education and habits in life, I may think more highly of this I shall now, Mr. President, delay the Senate authority than others whose education and habits while I notice such of the observations. which may have been different. For my own part I have been made by the gentlemen from Tennesthink the appeal to be a proper and a just one, in see and Maryland, (Mr. COCKE and Mr. WRIGHT,) which we ought to join fully and fairly. That as appear to me, to be of the most importance. we ought not to shrink from meeting this ques- Both the gentlemen have insisted that it is improtion in that forum whose sole and peculiar prov-per for the Senate to advise the President, in any ince it is to pronounce the law upon all cases "arising under the Constitution and the laws made under its authority." I hope, sir, that the pride of the Senate will not be hurt by this proposition. Let us nobly bear in mind that no higher tyranny can exist than in such countries where the same corps which makes a statute can absolutely control its expositions. This would be, sir, to convert a Legislature into a national and revolutionary convention. I will now, Mr. President, inquire a little into the nature of a quo warranto, and endeavor to show, that the resolution on the table prescribes the proper mode for procuring the decision of the law on this question. To this end I shall beg leave to read a few lines from the third volume of Blackstone's Commentaries, page 262: "A writ of quo warranto is in the nature of a writ of right, for the King, against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right." Again, in page 263, where speaking of an information in nature of a quo warranto, the book says: "This is properly a criminal method of prosecution, as to punish the usurper by fine for the usurpation 6 case, excepting where required by the Constitution. I answer that the Senate, in this resolution, do not advise the President. He is only requested to procure for the Senate judicial information, and a legal decision upon a matter in controversy. from a forum which is competent to decide in a case where the discussion here would be improper and out of order. Such requests for analogous information from the several great departments of the Government, have been frequently made, and as often complied with. Two occurred at the very last sessions, one in a claim made by Judge Symmes for the benefit of a contract entered into between him and the Government in regard to lands in the Northwestern Territory; another, in relation to claims in the State of Tennessee. The Legislature need the information which the adoption of this resolution will obtain, before they can, with propriety, as I conceive, either reject the memorial, or proceed to legislate upon it. This resolution merely requests such legal information and nothing further. The gentleman, sir, from Tennessee, has further observed that it would be improper for the Senate to aid in any measure which may tend to SENATE. Memorial of United States Judges. procure compensation where no services have been performed. This resolution, Mr. President, contains no such proposition. Offices may exist without services, or even without compensations. There may be great force in the argument, that compensation can only follow services, but certainly the adoption of this resolution will not affect that question the one way or the other. It is not the question what duty or compensation is to be assigned, but whether the memorialists are still invested with judicial characters, to which any official duties may now or hereafter attach in virtue of their former appointment to office. I trust, therefore, that we shall not be told again, that we are making an attempt to gain compensation, where no services can be performed. The gentleman from Tennessee is of opinion, that the people do not need any protection against themselves. Were I permitted, sir, to express an opinion, it would be that the people do need a protection against Government, and that courts are their shields against oppression, as well as swords for the execution of the law. The hand of Government is large and broad, and heavy; courts are necessary to defend the people, against its violence; they stand between the people and the Government-through this medium only, can the rights of the citizen be assailed while even a semblance of the Constitution remains. But, sir, courts will cease to be this shield, whenever they shall cease to be independent. Whenever it is settled that judicial offices are holden at the will of the Government, courts must necessarily execute that will, or certainly expect to cease to be courts. It is time to know on what foundation our liberties stand, and whether the citizen can any longer rely upon the protection of independ ent courts. Again, sir, this attempt to obtain a judicial decision has been called by the gentleman from Tennessee an act of force and fraud. Merciful heaven! This decent and respectful memorial-this well-timed and moderate resolution-acts of force and fraud. If we hear such language now, what may we expect hereafter? The gentleman from Maryland has observed, that this memorial is addressed to the Legislature, and can only be acted upon jointly by both Houses. The answer to this has been already hinted at. No Legislative measure whatever can be adopted, until the question contemplated by the resolution shall be first disposed of; after that, only, can we undertake to legislate upon the subject of this memorial; to require information may be the act of either House separately, although to legislate must be their joint act. Once more, sir, and I will have done. The gentleman from Maryland has argued that our courts have no jurisdiction over this question granted to them by the Constitution, and for this purpose has cited the clause in the Constitution which grants judicial jurisdiction. Permit me to observe, sir, that in making this citation, the gentleman has taken care, while he read every other part of the section, to omit that part which expressly grants this jurisdiction. The omitted FEBRUARY, 1803. part reads thus: "The judicial power shall extend to all cases in law or equity arising under this Constitution and the laws of the United States, which shall be made under its authority." And having read the residue of the section only, the gentleman triumphantly asks, whether these memorialists are Ambassadors or other public Ministers, or Consuls, or States, &c. Let me now ask, Mr. President, with my honorable friend from New York, what have gentlemen to fear from the course which has been proposed in relation to this memorial? Why do they flinch from judicial inquiry? If reason and sound argument be on their side, they will certainly triumph. Let us not, therefore, I pray, usurp to ourselves the power both of enacting and exclusively expounding this law of the last session. When we passed the law, we did what belonged to us. We were then, in respect to it, functi officis. Its construction and exposition belong to the forum; to which the resolution on your table properly refers it. Mr. JACKSON thought this subject was fully discussed at the last session, and that no new arguments could now be advanced. He considered the proceeding upon this subject as altogether novel. The petitioners have asked for one thing, and the committee have reported another. What end is to be answered by referring this question to the Judiciary? Do we doubt our own power, or our own justice? Ought we to go to the courts and ask them whether we have done our duty, or whether we have violated the Constitution? I shall not attempt, sir, to follow the gentleman from New York (Mr. MORRIS) in his attempt to raise the passions, but shall endeavor to confine myself to the question. I consider this report of the committee as contrary to the spirit of the Constitution and Government of the country, and contrary to our own dignity. The courts have no power to control the proceedings of the Legislature or the Executive. In what capacity do we sit here? Is it as legislators alone? No; but as a part of the Executive power. Shall we, then, as legislators, condemn ourselves by adopting this report? Or can we, as a constituent part of the Executive, call upon the head of the Executive power to do such an act? But, sir, I consider the proceeding proposed by the resolution to be unconstitutional. The writ of quo warranto is a criminal process, and is followed by fine and imprisonment, No person can be called upon in a criminal action except by indictment of a grand jury. But here you would proceed against these men, who have not been charged with any crime, by a quo warranto, and perhaps would fine and imprison them. Where does this writ of quo warranto come from? Do we find any such thing in the laws of Congress? No, sir, it is derived from the common law of England, and has come down from the days of that great and good King, Alfred, when, as the gentleman told us last year, a purse of gold might hang for months on the side of the highway, and nobody would touch a penny of it. God forbid that we should ever give coun 65 FEBRUARY, 1803. HISTORY OF CONGRESS. tenance to cruel and vindictive Star Chamber informations. I remember, sir, a time when an attempt was made to amend the Constitution by giving the courts power to proceed by information, but I lifted up my voice against it. I had heard too much of the proceedings by information in the Star Chamber in that country from which this writ is derived. I have heard many gentlemen in this House and the other who If we claimed the common law for our courts. go back to feudal times we shall see what a situation we should be in with this common law. Until the reign of William and Mary, women in England were not allowed the benefit of clergy. Let them be ever so learned or elegant, if convicted of a felony, they must be hanged, while the men, if they could merely read, escaped. Very pretty law this, indeed! Under this law your M'Cauleys, your Williamses, and perhaps some in the bosom of our own country, would be liable to ignominious death, and their husbands, who perhaps can scarcely read, while they are capable of writing the most elegant essays and the most sublime sentiments, these husbands, I say, under this blessed common law, would merely be burnt in the hand, while those elegant females must be hanged. But why shall we go across the Atlantic for common law to restore these judges to their offices? As well might you say that the Pretender, because he called himself King of England, was a King, as to say that because these men call themselves judges, they are judges. I contend that they are not judges. Their office was taken away and given to others, who are now in the exercise of it. You might as well say that Louis the Eighteenth, who at present calls himself King of France, is King. Everybody knows that Bonaparte is. The gentleman from New York (Mr. MORRIS) says, if you think yourselves right and these judges wrong, meet them, and examine their claim. But if you suspect or know that you are wrong, shrink from the investigation and refuse to let them be heard. Sir, I am willing to meet them, and I would meet them on this floor. Here I would decide their claim as they have asked us to do. This is the only proper place to meet them. Here I would decide that they have no office, and therefore are entitled to no salary. We cannot go out of our proper place to meet them in the courts. Sir, if these men think that they still hold their offices, I believe that they may be satisfied without our passing that resolution. Let them take their seat upon the bench and see if the Marshal will obey them. Let them attempt to send a man to the whipping-post, or to jail, and I believe that they will find out whether they are judges or not. But if they wish to have the question decided for them, there is no occasion to trouble the court with it. We have the power and the right of deciding it. The petition itself proves that we have this power and this right, otherwise it would not have been sent to us. I hope, therefore, that we shall use it, and not give it away. To say 7th CoN. 2d SES.-3 SENATE. that it must go to the Supreme Court, and that [Here Mr. J. read from some book, the title of which was not heard, that a certain lawyer had declared that Parliament have no power to do an immoral act, or one manifestly unjust, such as to make a man a judge in his own cause; but the commentator held it to be law. that no bounds could be prescribed to the power of Parliament, and that should they, imitating the example of Herod, decree that all children under a certain age should be slain, it would be the duty of the judges to resign their commissions, but they could not declare the act void.] Such, said Mr. J., appears to be the law of England, and there is so far an analogy between that Government and ours, that our judges cannot exercise a power over the acts of the Legislature which is denied even to the English judges. It is true that in England they have no written Constitution, and we have. We are so far superior to them in that respect. But still our judges have no power to control the acts of the Legislature. Though it may be true, as has been said, that this is not a resolution to pay money for nothing, still it is true that they petition for their compensations as well as duties to be assigned to them, and I believe, that if they had their salaries, they would be very quiet; and that, if we had last year made provision for paying them their compensations, we should never have heard of their coming petition for duty to perform. I am against payto ing money to any person for doing nothing. I want no Irish pension list in this country, nor the In my view, office red book of France, which I dare say the gentleman (Mr. MORRIS) has seen. consists of duty, and compensation is given for the performance of duty. I cannot conceive of an office without service. The service of these men was taken away by the act of last session; and the office is therefore gone, and the compensation must go with it. But suppose we adopt the resolution, and the President should refuse to comply, how can you get the question before the court? Can you compel the President to comply? Suppose, then, you command the Attorney General to file the information, will he comply? He is an Executive officer; he holds his commission at the will of the President. If he attempts to act contrary to the President's wishes, he will immediately be informed that there is no further occasion for his services. How can we command the Executive officers? Can the court, then, command the offibelieve the cers of the Executive? and by the way, I will take the liberty of remarking, that court are willing to go very great lengths. In like manner, if the court should send the Marshal |