1801 Examination 12 · Founding Made Plain

1THE EXAMINATION.

2Number XII.

3[New York, February 23, 1802]

4From the manner

5 in which the subject was treated

6 in the fifth and sixth numbers

7 of The Examination,

8 it has been doubted,

9 whether the writer did or did not

10 entertain a decided opinion

11 as to the power of Congress

12 to abolish the offices

13 and compensations of Judges,

14 once instituted and appointed

15 pursuant to a law

16 of the United States.

17In a matter

18 of such high constitutional moment,

19 it is a sacred duty to be explicit.

20The progress of a bill

21 lately brought into the Senate

22 for repealing the law

23 of the last session, entitled,

24 "An act to provide

25 for the more convenient organization

26 of the courts of the U. States,"

27 with the avowed design

28 of superceding the judges,

29 who were appointed under it,

30 has rendered the question

31 far more serious than it was

32 while it rested merely

33 on the obscure suggestion

34 of the Presidential Message.

35Till the experiment had proved the fact,

36 it was hardly to have been imagined,

37 that a majority

38 of either House of Congress,

39 whether from design or error,

40 would have lent its sanction

41 to a glaring violation

42 of our national compact,

43 in that article which, of all others,

44 is the most essential

45 to the efficiency and stability

46 of the government;

47 to the security of property;

48 to the safety and liberty of person.

49This portentous and frightful phenomenon

50 has, nevertheless, appeared.

51It frowns

52 with malignant and deadly aspect

53 upon our Constitution.

54Probably before these remarks

55 shall be read,

56 that Constitution will be no more!

57It will be numbered

58 among the numerous victims

59 of Democratic frenzy;

60 and will have given

61 another and an awful lesson

62 to mankind—

63 the prelude perhaps

64 of calamities to this country,

65 at the contemplation of which

66 imagination shudders!

67With such prospect before us,

68 nothing ought to be left unessayed,

69 to open the eyes of thinking men

70 to the destructive projects

71 of those mountebank politicians,

72 who have been too successful

73 in perverting public opinion,

74 and in cheating the people

75 out of their confidence;

76 who are advancing with rapid strides

77 in the work of disorganization—

78 the sure forerunner of tyranny;

79 and who, if they are not arrested

80 in their mad career,

81 will, ere long, precipitate our nation

82 into all the horrors of anarchy.

83It would be vanity

84 to expect to throw much additional light

85 upon a subject,

86 which has already exhausted

87 the logic and eloquence

88 of some of the ablest men

89 of our country;

90 yet it often happens,

91 that the same arguments

92 placed in a new attitude,

93 and accompanied with illustrations,

94 which may have escaped

95 the ardor of a first research,

96 serve both to fortify

97 and to extend conviction.

98In the hope that this may be the case,

99 the discussion shall be pursued

100 with as much perspicuity and brevity,

101 as can be attained.

102The words of the Constitution are,

103 "The Judges

104 both of the Supreme

105 and Inferior Courts

106 shall hold their offices

107 during good behaviour,

108 and shall at stated times

109 receive for their services

110 a compensation

111 which shall not be diminished

112 during their continuance in office."

113Taking the literal import of the terms

114 as the criterion of their true meaning,

115 it is clear,

116 that the tenure or duration

117 of the office

118 is limited by no other condition

119 than the good behavior

120 of the incumbent.

121The words are imperative,

122 simple and unqualified:

123 "The Judges shall hold their offices

124 during good behavior."

125Independent therefore

126 of any artificial reasoning

127 to vary the natural and obvious sense

128 of the words,

129 the provision must be understood

130 to vest in the judge

131 a right to the office,

132 indefeasible

133 but by his own misconduct.

134It is, consequently,

135 the duty of those who deny this right,

136 to show,

137 either that there are

138 certain presumptions of intention,

139 deducible from other parts

140 of the constitutional instrument,

141 or certain general principles

142 of constitutional law or policy,

143 which ought to control the literal

144 and substitute a different meaning.

145As to presumptions of intention,

146 different from the import of the terms,

147 there is not a syllable

148 in the instrument

149 from which they can be inferred;

150 on the contrary,

151 the latter member of the clause cited

152 affords a very strong presumption

153 the other way.

154From the Injunction,

155 that the compensation of the judges

156 shall not be diminished,

157 it is manifest

158 that the Constitution intends

159 to guard the independence

160 of those officers

161 against the legislative department;

162 because, to this department alone

163 would have belonged the power

164 of diminishing their compensations.

165When the Constitution

166 is thus careful

167 to tie up the legislature

168 from taking away

169 part of the compensation,

170 is it possible to suppose

171 that it can mean

172 to leave that body at full liberty

173 to take away the whole?

174The affirmative imputes

175 to the Constitution

176 the manifest absurdity

177 of holding to the legislature

178 this language:

179 "You shall not weaken

180 the independence

181 of the judicial character,

182 by exercising the power

183 of lessening his emolument,

184 but you may destroy it altogether,

185 by exercising the greater power

186 of annihilating the recompense

187 with the office."

188No mortal can be so blind

189 as not to see

190 that, by such a construction,

191 the restraint intended to be laid

192 upon the legislature

193 by the injunction

194 not to lessen the compensation,

195 becomes absolutely nugatory.

196In vain is a justification sought

197 in that part of the article

198 which provides that

199 "the judicial power

200 of the United States

201 shall be vested

202 in one supreme court,

203 and in such inferior courts

204 as the Congress may

205 from time to time

206 ordain and establish."

207The position

208 that a discretionary power

209 to institute inferior courts

210 includes virtually

211 a power to abolish them,

212 if true, is nothing to the purpose.

213The abolition of a court

214 does not necessarily imply

215 that of its judges.

216In contemplation of law,

217 the court and the judge

218 are distinct things.

219The court may have a legal existence,

220 though there may be no judge

221 to exercise its powers.

222This may be the case,

223 either at the original creation

224 of a court,

225 previous to the appointment

226 of a judge,

227 or subsequently,

228 by his death, resignation, or removal.

229In the last case,

230 it could not be pretended

231 that the court had become extinct

232 by the event.

233In like manner,

234 the office of the judge may subsist,

235 though the court

236 in which he is to officiate

237 may be suspended or destroyed.

238The duties of a judge,

239 as the office is defined

240 in our jurisprudence,

241 are twofold—

242 judicial and ministerial.

243The latter may be performed

244 out of court,

245 and often without reference to it.

246As conservator of the peace,

247 which every judge is, ex officio,

248 many things are done,

249 not connected

250 with a judicial controversy,

251 or to speak technically,

252 with a lis pendens.

253This serves to illustrate the idea,

254 that the office is something different

255 from the court:

256 which is the place or situation

257 for its principal action,

258 yet not altogether essential

259 to its activity.

260Besides,

261 a judge is not the less a judge

262 when out of court

263 than when in court.

264The law does not suppose him

265 to be always in court,

266 yet it does suppose him

267 to be always in office;

268 in vacation as well as in term.

269He has also a property or interest

270 in his office,

271 which entitles him

272 to civil actions and recompense

273 in damages,

274 for injuries that affect him

275 in relation to his office;

276 but he cannot be said

277 to have a property or interest

278 in the court

279 of which he is a member.

280All these considerations

281 confirm the hypothesis,

282 that the court and the judge

283 are distinct legal entities,

284 and therefore may exist,

285 the one independently of the other.

286If it be replied,

287 that the office is an incident

288 to the court,

289 and that the abolition of the principal

290 includes that of the incidents—

291 the answer to this is,

292 that the argument may be well founded

293 as to all subsequent appointments;

294 but not as to those previously made.

295Though there be no office

296 to be filled in future,

297 it will not follow

298 that one already vested

299 in an individual,

300 by a regular appointment

301 and commission,

302 is thereby vacated and divested.

303Whether this shall or shall not happen,

304 must depend

305 on what the Constitution or the law

306 has declared

307 with regard to the tenure

308 of the office.

309Having pronounced

310 that this shall be during good behavior,

311 it will preserve the office,

312 to give effect to that tenure

313 for the benefit of the possessor.

314To be consistent with itself,

315 it will require and prescribe

316 such a modification and construction

317 of its own acts,

318 as will reconcile its power

319 over the future,

320 with the rights

321 which have been conferred

322 as to the past.

323Let it not be said,

324 that an office is a mere trust

325 for public benefit,

326 and excludes the idea

327 of a property

328 or a vested interest

329 in the individual.

330The first part of the proposition

331 is true—the last false.

332Every office combines

333 the two ingredients

334 of an interest in the possessor,

335 and a trust for the public.

336Hence it is

337 that the law allows the officer redress,

338 by a civil action,

339 for an injury

340 in relation to his office,

341 which presupposes

342 property or interest.

343This interest

344 may be defeasible

345 at the pleasure of the government,

346 or it may have a fixed duration,

347 according to the constitution

348 of the office.

349The idea of a vested interest

350 holden even by a permanent tenure,

351 so far from being incompatible

352 with the principle,

353 that the primary and essential end

354 of every office

355 is the public good,

356 may be conducive to that very end,

357 by promoting a diligent, faithful,

358 energetic, and independent

359 execution of the office.

360But admitting,

361 as seems to have been admitted

362 by the speakers

363 on both sides of the question,

364 that the judge must fall with the court,

365 then the only consequence will be,

366 that Congress cannot abolish

367 a court once established.

368There is no rule of interpretation

369 better settled,

370 than that different provisions

371 in the same instrument,

372 on the same subject,

373 ought to be so construed,

374 as, if possible,

375 to comport with each other,

376 and give a reasonable effect to all.

377The provision that

378 "The judiciary power shall be vested

379 in one supreme court,

380 and in such inferior courts

381 as the Congress may

382 from time to time

383 ordain and establish,"

384 is immediately followed

385 by this other provision,

386 "The judges

387 both of the supreme

388 and inferior courts

389 shall hold their offices

390 during good behavior."

391The proposition,

392 that a power to do,

393 includes, virtually,

394 a power to undo,

395 as applied to a legislative body,

396 is generally but not universally true.

397All vested rights

398 form an exception to the rule.

399In strict theory,

400 there is no lawful or moral power

401 to divest by a subsequent statute,

402 a right vested in an individual,

403 by a prior.

404And accordingly

405 it is familiar

406 to persons conversant

407 with legal studies,

408 that the repeal of a law

409 does not always work

410 the revocation or divestiture

411 of such rights.

412If it be replied,

413 that though a legislature

414 might act immorally and wickedly,

415 in abrogating a vested right,

416 yet the legal validity of its act

417 for such a purpose

418 could not be disputed;

419 it may be answered,

420 that this odious position,

421 in any application of it,

422 is liable to question

423 in every limited Constitution;

424 (that is, in every Constitution,

425 which, in its theory,

426 does not suppose

427 the WHOLE POWER of the nation

428 to be lodged

429 in the legislative body;*)—

430 and that it is certainly false,

431 in its application

432 to a legislature,

433 the authorities of which

434 are defined

435 by a positive written Constitution,

436 as to every thing

437 which is contrary

438 to the actual provisions

439 of that Constitution.

440To deny this,

441 is to affirm

442 that the delegated

443 is paramount

444 to the constituent power.

445It is in fact to affirm

446 there are no constitutional limits

447 to the legislative authority.

448The inquiry then must be,

449 whether the power

450 to abolish inferior courts,

451 if implied in that of creating them,

452 is not abridged

453 by the clause

454 which regulates

455 the tenure of judicial office.

456The first thing which occurs

457 in this investigation, is,

458 that the power to abolish is, at most,

459 an implied or incidental power,

460 and as such,

461 will the more readily yield

462 to any express provision

463 with which it may be inconsistent.

464The circumstance

465 of giving to Congress

466 a discretionary power

467 to establish inferior courts,

468 instead of establishing them

469 specifically in the Constitution,

470 has, with great reason,

471 been ascribed

472 to the impracticability

473 of ascertaining beforehand

474 the number and variety of courts,

475 which the development

476 of our national affairs

477 might indicate to be proper;

478 especially in relation

479 to the progress of new settlements,

480 and the creation of new States.

481This rendered

482 a discretionary power

483 to institute courts indispensable;

484 but it did not alike render indispensable

485 a power to abolish those

486 which were once instituted.

487It was conceivable

488 that with intelligence, caution, and care,

489 a plan might be pursued

490 in the institution of courts,

491 which would render

492 abolitions unnecessary.

493Indeed, it is not presumable

494 with regard to establishments

495 of such solemnity and importance,

496 making part of the organization

497 of a principal department

498 of the government,

499 that a fluctuation of plans

500 was anticipated.

501It is therefore not essential to suppose,

502 that the power to destroy

503 was intended to be included

504 in the power to create.

505Thus the words

506 "to ordain and establish,"

507 may be satisfied

508 by attributing to them

509 only the latter effect.—

510Consequently

511 when the grant of the power

512 to institute courts,

513 is immediately succeeded

514 by the declaration

515 that the judges of those courts

516 shall hold their offices

517 during good behavior;

518 if the exercise of the power

519 to abolish the courts,

520 cannot be reconciled

521 with the actual holding

522 or enjoyment of the office,

523 according to the prescribed tenure,

524 it will follow

525 that the power to abolish

526 is interdicted.

527The implied or hypothetical power,

528 to destroy the office,

529 must give way

530 to the express and positive right

531 of holding it

532 during good behavior.

533This is agreeable

534 to the soundest rules of construction;

535 the contrary is in subversion of them.

536Equally in vain

537 is a justification of the construction,

538 adopted by the advocates

539 of the repeal,

540 attempted to be derived

541 from a distinction

542 between the supreme

543 and inferior courts.

544The argument,

545 that as the former

546 is established by the Constitution,

547 it cannot be annulled

548 by a legislative act,

549 though the latter

550 which must owe their existence

551 to such an act

552 may by the same authority

553 be extinguished,

554 can afford no greater stability

555 to the office

556 of a judge of the supreme court

557 than to that

558 of a judge of an inferior court.

559The Constitution

560 does indeed establish

561 the supreme court;

562 but it is altogether silent

563 as to the number of judges.

564This is as fully left

565 to legislative discretion

566 as the institution

567 of inferior courts;

568 and the rule

569 that a power to undo

570 is implied in the power to do,

571 is therefore no less applicable

572 to the reduction of the number

573 of the judges

574 of the supreme court,

575 than to the abolition

576 of the inferior courts.

577If the former are not protected

578 by the clause

579 which fixes the tenure of office,

580 they are no less

581 at the mercy of the legislature

582 than the latter.

583And if that clause does protect them,

584 its protection must be equally effectual

585 for the judges

586 of the inferior courts.

587Its efficacy, in either case,

588 must be founded on the principle

589 that it operates as a restraint

590 upon the legislative discretion;

591 and if so,

592 there is the like restraint

593 in both cases,

594 because the very same words

595 in the very same sentence,

596 define conjunctly

597 the tenure of office

598 of the two classes of judges.

599No sophistry can elude this conclusion.

600It is therefore plain to a demonstration,

601 that the doctrine

602 which affirms the right of Congress

603 to abolish the Judges

604 of the Inferior Courts

605 is absolutely fatal

606 to the independence

607 of the Judiciary department.

608The observation

609 that so gross an abuse of power

610 as would be implied

611 in the abolition of the Judges

612 of the Supreme Court,

613 ought not to be supposed,

614 can afford no consolation

615 against the extreme danger

616 of the doctrine.

617The terrible examples before us

618 forbid our placing the least confidence

619 in that delusive observation.

620Experience, sad experience

621 warns us to dread every extremity—

622 to be prepared

623 for the worst catastrophe

624 that can happen.

625Lucius Crassus.

626New-York Evening Post, February 23, 1802.

627* As in the parliament of Great Britain.