1801 Examination 14 · Founding Made Plain

1THE EXAMINATION.

2Number XIV.

3[New York, March 2, 1802]

4In the course of the debate

5 in the Senate,

6 much verbal criticism

7 has been indulged;

8 many important inferences

9 have been attempted to be drawn

10 from distinctions

11 between the words shall and may.

12This species of discussion

13 will not be imitated,

14 because it is seldom

15 very instructive or satisfactory.

16These terms, in particular cases,

17 are frequently synonymous,

18 and are imperative or permissive,

19 directing or enabling,

20 according to the relations

21 in which they stand

22 to other words.

23It is, however, certain,

24 that the arguments

25 even from this source,

26 greatly preponderate

27 against the right of Congress

28 to abolish the Judges.

29But there has been one argument,

30 rather of a verbal nature,

31 upon which some stress has been laid,

32 which shall be analyzed;

33 principally to furnish a specimen

34 of the wretched expedients

35 to which the supporters of the repeal

36 are driven.

37It is this,

38 "The tenure of an office

39 is not synonymous with its existence.

40 Though Congress may not annul

41 the tenure of a Judicial office,

42 while the office itself continues;

43 yet it does not follow

44 that they may not destroy

45 its existence."

46The constituent parts of an office

47 are its authorities, duties, and duration.

48These may be denominated

49 the elements of which it is composed.

50Together they form

51 its essence or existence.*

52It is impossible

53 to separate even in idea

54 the duration from the existence:

55 the office must cease to exist

56 when it ceases to have duration.

57Hence let it be observed,

58 that the word tenure

59 is not used in the Constitution,

60 and that in the debate

61 it has been the substitute

62 for duration.

63The words,

64 "The judges shall hold their offices

65 during good behavior,"

66 are equivalent to these other words;

67 The offices of the judges

68 shall endure or last

69 so long as they behave well.

70The conclusions from these principles are,

71 that existence is a whole,

72 which includes tenure and duration

73 as a part;

74 that it is impossible

75 to annul the existence of an office

76 without destroying its tenure;

77 and consequently

78 that a prohibition

79 to destroy the tenure

80 is virtually and substantially

81 a prohibition to abolish the office.

82How contemptible then the sophism

83 that Congress may not destroy the tenure,

84 but may annihilate the office!

85It has now been seen,

86 that this power of annihilation

87 is not reconcilable

88 with the language

89 of the constitutional instrument,

90 and that no rule

91 of constitutional law,

92 which has been relied upon,

93 will afford it support.

94Can it be better defended

95 by any principle

96 of constitutional policy?

97To establish the affirmative

98 of this question,

99 it has been argued,

100 that if the judges hold their offices

101 by a title

102 absolutely independent

103 of the legislative will,

104 the judicial department becomes

105 a colossal and overbearing power,

106 capable of degenerating

107 into a permanent tyranny;

108 at liberty,

109 if audacious and corrupt enough,

110 to render the authority

111 of the legislature nugatory,

112 by expounding away the laws,

113 and to assume a despotic control

114 over the rights

115 of person and property.

116To this argument

117 (which supposes the case

118 of a palpable abuse of power)

119 a plain and conclusive answer is,

120 that the Constitution

121 has provided a complete safeguard

122 in the authority

123 of the House of Representatives

124 to impeach;

125 of the Senate to condemn.

126The judges are in this way

127 amenable to public justice

128 for misconduct:

129 and upon conviction,

130 removable from office.

131In the hands of the legislature itself,

132 is placed the weapon

133 by which they may be put down

134 and the other branches

135 of the government protected.

136The pretended danger, therefore,

137 is evidently imaginary—

138 the security perfect.

139Reverse the medal.

140Concede to the legislature

141 a legal discretion

142 to abolish the judges;

143 where is the defence?

144 where the security

145 for the judicial department?

146There is absolutely none.

147This most valuable member

148 of the government,

149 when rightly constituted

150 the surest guardian

151 of person and property,

152 of which stability

153 is a prime characteristic;

154 losing at once

155 its most essential attributes,

156 and doomed to fluctuate

157 with the variable tide of faction,

158 degenerates into a disgusting mirror

159 of all the various, malignant,

160 and turbulent humors

161 of party spirit.

162Let us not be deceived.

163The real danger

164 is on the side

165 of that foul and fatal doctrine,

166 which emboldens its votaries,

167 with daring front

168 and unhallowed step,

169 to enter the holy temple of justice,

170 and pluck from their seats

171 the venerable personages,

172 who, under the solemn sanction

173 of the Constitution,

174 are commissioned

175 to officiate there—

176 to guard that sacred compact

177 with jealous vigilance:

178 to dispense the laws

179 with a steady and impartial hand—

180 unmoved by the storms of faction,

181 unawed by its powers,

182 unseduced by its favors—

183 shielding, right and innocence

184 from every attack—

185 resisting and repressing violence

186 from every quarter.

187'Tis from the triumph

188 of that execrable doctrine,

189 that we may have to date

190 the downfall of our government,

191 and with it,

192 of the whole fabric

193 of republican liberty.

194Who will have the folly to deny

195 that the definition of despotism

196 is the concentration

197 of all the powers of government

198 in one person

199 or in one body?

200Who is so blind as not to see,

201 that the right of the legislature

202 to abolish the judges at pleasure,

203 destroys the independence

204 of the judicial department,

205 and swallows it up

206 in the impetuous vortex

207 of legislative influence?

208Who is so weak as to hope

209 that the executive,

210 deprived of so powerful an auxiliary,

211 will long survive?

212What dispassionate man

213 can withstand the conviction

214 that the boundaries

215 between the departments

216 will be thenceforth nominal;

217 and that there will be no longer

218 more than one active

219 and efficient department?

220It is a fundamental maxim

221 of free government,

222 that the three great departments

223 of power,

224 legislative, executive, and judiciary,

225 shall be essentially distinct

226 and independent,

227 the one of the other.

228This principle,

229 very influential

230 in most of our State constitutions,

231 has been particularly attended to

232 in the Constitution

233 of the United States;

234 which, in order to give effect to it,

235 has adopted a precaution

236 peculiar to itself,

237 in the provisions

238 that forbid the legislature

239 to vary in any way

240 the compensation of the President,

241 to diminish that of a judge.

242It is a principle equally sound,

243 that though in a government

244 like that of Great Britain,

245 having an hereditary chief

246 with vast prerogatives,

247 the danger to liberty,

248 by the predominance

249 of one department over the other,

250 is on the side of the executive;

251 yet in popular forms of government,

252 this danger is chiefly

253 to be apprehended

254 from the legislative branch.

255The power of legislation is,

256 in its own nature,

257 the most comprehensive and potent

258 of the three great subdivisions

259 of sovereignty.

260It is the will of the government;

261 it prescribes universally

262 the rule of action,

263 and the sanctions

264 which are to enforce it.

265It creates and regulates

266 the public force,

267 and it commands the public purse.

268If deposited

269 in an elective representative

270 of the people,

271 it has, in most cases,

272 the body of the nation

273 for its auxiliary,

274 and generally acts

275 with all the momentum

276 of popular favor.

277In every such government

278 it is consequently an organ

279 of immense strength.

280But when there is

281 an hereditary chief magistrate,

282 clothed with dazzling prerogatives

283 and a great patronage,

284 there is a powerful counterpoise,

285 which, in most cases,

286 is sufficient to preserve

287 the equilibrium of the government;

288 in some cases,

289 to incline the scale

290 too much to its own side.

291In governments

292 wholly popular or representative,

293 there is no adequate counterpoise.

294Confidence in the most numerous,

295 or legislative department,

296 and jealousy of the executive chief,

297 form the genius

298 of every such government.

299That jealousy,

300 operating in the constitution

301 of the executive,

302 causes this organ

303 to be intrinsically feeble;

304 and, withholding

305 in the course of administration

306 accessory means

307 of force and influence,

308 is for the most part vigilant

309 to continue it

310 in a state of impotence.

311The result is

312 that the legislative body,

313 in this species of government,

314 possesses additional resources

315 of power and weight;

316 while the executive

317 is rendered much too weak

318 for competition;

319 almost too weak for self-defence.

320A third principle,

321 not less well founded

322 than the other two,

323 is that the judiciary department

324 is naturally the weakest of the three.

325The sources of strength

326 to the legislative branches

327 have been briefly delineated.

328The Executive,

329 by means of its several active powers,

330 of the dispensation

331 of honors and emoluments,

332 and of the direction

333 of the public force,

334 is evidently the second in strength.

335The judiciary, on the other hand,

336 can ordain nothing.

337It commands neither the purse

338 nor the sword.

339It has scarcely any patronage.

340Its functions are not active

341 but deliberative.

342Its main province

343 is to declare the meaning of the laws;

344 and in extraordinary cases,

345 it must even look up

346 to the Executive aid

347 for the execution of its decisions.

348Its chief strength

349 is in the veneration

350 which it is able to inspire

351 by the wisdom and rectitude

352 of its judgments.

353This character of the judiciary

354 clearly indicates

355 that it is not only

356 the weakest

357 of the three departments of power,

358 but, also,

359 as it regards the security

360 and preservation of civil liberty,

361 by far the safest.

362In a conflict

363 with the other departments,

364 it will be happy

365 if it can defend itself—

366 to annoy them is beyond its power.

367In vain would it singly attempt

368 enterprises against the rights

369 of the citizen.

370The other departments

371 could quickly arrest its arm,

372 and punish its temerity.

373It can only then become

374 an effectual instrument of oppression,

375 when it is combined

376 with one of the more active

377 and powerful organs;

378 and against a combination

379 of this sort,

380 the true and best guard

381 is a complete independence

382 of each and both of them.

383Its dependence on either

384 will imply and involve

385 a subserviency

386 to the views

387 of the department

388 on which it shall depend.

389Its independence of both

390 will render it a powerful check

391 upon the others,

392 and a precious shield

393 to the rights

394 of persons and property.

395Safety, liberty,

396 are therefore inseparably connected

397 with the real and substantial

398 independence

399 of the courts and judges.

400It is plainly to be inferred

401 from the instrument itself,

402 that these were governing principles

403 in the formation

404 of our Constitution:

405 that they were in fact so,

406 will hereafter be proved

407 by the cotemporary exposition

408 of persons who,

409 having been themselves members

410 of the body that framed it,

411 must be supposed

412 to have understood the views

413 with which it was framed.

414Those principles suggest

415 the highest motives

416 of constitutional policy

417 against that construction

418 which places the existence

419 of the judges

420 at the mercy of the legislature.

421They instruct us,

422 that to prevent a concentration of powers,

423 the essence of despotism,

424 it is essential,

425 that the departments

426 among which they shall be distributed,

427 should be effectually independent

428 of each other;

429 and that, it being impossible

430 to reconcile this independence

431 with a right in any one or two of them

432 to annihilate at discretion

433 the organs of the other,

434 it is contrary to all just reasoning

435 to imply or infer such a right.

436So far from its being correct,

437 that an express interdiction

438 is requisite

439 to deprive the legislature

440 of the power to abolish the judges,

441 the very reverse is the true position.

442It would require

443 a more express provision

444 susceptible of no other interpretation,

445 to confer on that branch

446 of the government an authority,

447 so dangerous to the others,

448 in opposition

449 to the strong presumptions,

450 which arise from the care taken

451 in the Constitution,

452 in conformity

453 with the fundamental maxims

454 of free governments,

455 to establish and preserve

456 the reciprocal and complete

457 independence

458 of the respective branches,

459 first by a separate organization

460 of the departments;

461 next by a precise definition

462 of the powers of each;

463 lastly by precautions

464 to secure to each

465 a permanent support.

466Lucius Crassus.

467New-York Evening Post, March 2, 1802.

468* The remuneration or recompense

469 is not added,

470 because it is most properly an accessory.