1801 Examination 16 · Founding Made Plain

1THE EXAMINATION.

2Number XVI.

3[New York, March 19, 1802]

4The President, as a politician,

5 is in one sense particularly unfortunate.

6He furnishes frequent opportunities

7 of arraying him against himself—

8 of combating his opinions at one period

9 by his opinions at another.

10Without doubt,

11 a wise and good man may,

12 on proper grounds,

13 relinquish an opinion

14 which he has once entertained,

15 and the change may even serve

16 as a proof of candor and integrity.

17But with such a man,

18 changes of this sort,

19 especially in matters

20 of high public importance,

21 must be rare.

22The contrary is always a mark,

23 either of a weak and versatile mind,

24 or of an artificial and designing character;

25 which, accommodating its creed

26 to circumstances,

27 takes up or lays down

28 an article of faith,

29 just as may suit

30 a present convenience.

31The question in agitation,

32 respecting the Judiciary Department,

33 calls up another instance

34 of opposition

35 between the former ideas

36 of Mr. Jefferson,

37 and his recent conduct.

38The leading positions

39 which have been advanced

40 as explanatory of the policy

41 of the Constitution

42 in the structure

43 of the different departments,

44 and as proper to direct

45 the interpretation of the provisions,

46 which were contrived

47 to secure the independence

48 and firmness of the judges,

49 are to be seen

50 in a very emphatical and distinct form,

51 in the Notes on Virginia.

52The passage in which they appear,

53 deserves to be cited at length,

54 as well for its intrinsic merit,

55 as by way of comment

56 upon the true character of its author;

57 presenting an interesting contrast

58 between the maxims,

59 which experience had taught him

60 while Governor of Virginia,

61 and those which now guide him

62 as the official head

63 of a great party

64 in the United States.

65It is in these words:—

66 "All the powers of government,

67 legislative, executive, and judiciary,

68 result to the legislative body.

69 The concentrating these

70 in the same hands,

71 is precisely the definition

72 of despotic government.

73 It will be no alleviation

74 that these powers will be exercised

75 by a plurality of hands,

76 and not by a single one.

77 One hundred and seventy-three despots

78 would surely be as oppressive as one.

79 Let those who doubt it,

80 turn their eyes

81 on the Republic of Venice.

82 As little will it avail us

83 that they are chosen by ourselves.

84 An elective despotism

85 was not the government we fought for;

86 but one which should not only

87 be founded on free principles,

88 but in which the powers of government

89 should be so divided and balanced

90 among several bodies of magistracy,

91 as that no one

92 could transcend their legal limits

93 without being effectually checked

94 and restrained by the others.

95 For this reason,

96 that Convention

97 which passed the ordinance of government,

98 laid its foundation on this basis,

99 that the legislative, executive,

100 and judiciary departments,

101 should be separate and distinct,

102 so that no person

103 should exercise the powers

104 of more than one of them

105 at the same time.

106 But no barrier was provided

107 between these several powers.

108 The judiciary and executive members

109 were left dependent on the legislative

110 for their subsistence in office,

111 and some of them

112 for their continuance in it.

113 If, therefore, the legislature assumes

114 executive and judiciary powers,

115 no opposition is likely to be made,—

116 nor if made, can be effectual;

117 because in that case,

118 they may put their proceedings

119 into the form of an act of assembly,

120 which will render them obligatory

121 on the other branches.

122 They have accordingly

123 in many instances decided rights

124 which should have been left

125 to judiciary controversy;

126 and the direction of the Executive,

127 during the whole time of their session,

128 is becoming habitual and familiar."

129This passage fully recognizes

130 these several important truths:

131 that the tendency of our governments

132 is towards a CONCENTRATION

133 of the POWERS

134 of the different departments

135 in the LEGISLATIVE BODY;

136 that such a CONCENTRATION,

137 is precisely the DEFINITION

138 of DESPOTISM,

139 and that an effectual barrier

140 between the respective departments

141 ought to exist.

142It also, by a strong implication,

143 admits that officers

144 during good behavior

145 are independent of their legislature

146 for their continuance in office.

147This implication seems to be contained

148 in the following sentence:

149 "The judiciary and executive members

150 were left dependent on the legislature

151 for their subsistence in office,

152 and some of them

153 for their continuance in it."

154The word "some" implies

155 that others were not left thus dependent;

156 and to what description of officers

157 can the exception be better applied

158 than to the judges,

159 the tenure of whose offices

160 was during good behavior?

161The sentiments of the President,

162 delivered at a period

163 when he can be supposed

164 to have been under no improper bias,

165 must be regarded

166 by all those

167 who respect his judgment,

168 as no light evidence

169 of the truth of the doctrine

170 for which we contend.

171Let us, however,

172 resume and pursue the subject

173 on its merits,

174 without relying upon the aid

175 of so variable and fallible

176 an authority.

177At an early part of the discussion

178 in this Examination,

179 a construction of the Constitution

180 was suggested,

181 to which it may not be amiss

182 to return.

183It amounts to this,

184 that Congress have power

185 to new-model,

186 or even to abrogate

187 an Inferior Court,

188 but not to abolish the office

189 or emoluments of a Judge

190 of such court

191 previously appointed.

192In the Congressional debates,

193 some of the speakers

194 against the repealing law,

195 appear to have taken it for granted,

196 that the abrogation of the court

197 must draw with it

198 the abolition of the Judges,

199 and therefore have denied in totality,

200 the power of abrogation.

201In the course of these papers, too,

202 it has been admitted,

203 that if the preservation of the judges

204 cannot be reconciled

205 with the power to annul the court,

206 then the existence of this power

207 is rightly denied.

208But in an affair of such vast magnitude,

209 it is all-important

210 to survey with the utmost caution,

211 the ground to be taken,

212 and then to take and maintain it

213 with inflexible fortitude

214 and perseverance.

215Truth will be most likely to prevail,

216 when the arguments which support it,

217 stop at a temperate mean,

218 consistent with practical convenience.

219Excess is always error.

220There is hardly any theoretic hypothesis,

221 which, carried to a certain extreme,

222 does not become practically false.

223In construing a Constitution,

224 it is wise, as far as possible

225 to pursue a course,

226 which will reconcile essential principles

227 with convenient modifications.

228If guided by this spirit,

229 in the great question

230 which seems destined

231 to decide the fate

232 of our government,

233 it is believed that the result

234 will accord with the construction,

235 that Congress have a right

236 to change or abolish Inferior Courts,

237 but not to abolish the actual Judges.

238Towards the support of this construction,

239 it has been shown in another place,

240 that the courts and the judges

241 are distinct legal entities,

242 which, in contemplation of law,

243 may exist,

244 independently

245 the one of the other—

246 mutually related,

247 but not inseparable.

248The act proposed to be repealed

249 exemplifies this idea in practice.

250It abolishes

251 the District Courts

252 of Tennessee and Kentucky,

253 and transfers their judges

254 to one of the Circuit Courts.

255Though the authorities and jurisdiction

256 of those courts

257 are vested in the Circuit Court,

258 to which the judges are transferred;

259 yet the identity of the courts ceases.

260It cannot be maintained

261 that courts,

262 so different in their organization

263 and jurisdiction,

264 are the same;

265 nor could a legislative transfer

266 of the judges have been constitutional,

267 but upon the hypothesis,

268 that the office of a judge

269 may survive the court

270 of which he is a member.

271A new appointment by the Executive,

272 of two additional judges

273 for the Circuit Court,

274 would otherwise have been necessary.

275This precedent in all its points,

276 is correct,

277 and exhibits a rational operation

278 of the construction,

279 which regards the office of the judge,

280 as distinct from the court;

281 as one of the elements,

282 or constituent parts,

283 of which it is composed;

284 not as a mere incident

285 that must perish with its principal.

286It will not be disputed,

287 that the Constitution

288 might have provided in terms,

289 and with effect,

290 that an Inferior Court

291 which had been established by law,

292 might by law be abolished,

293 so, nevertheless,

294 that the judges of such court

295 should retain the offices

296 of judges of the United States

297 with the emoluments

298 before attached to their offices.

299The operation of such a provision

300 would be,

301 that when the court was abolished,

302 all the functions

303 to be executed in that court

304 would be suspended,

305 and the judge could only continue

306 to exert the authorities

307 and perform the duties,

308 which might before have been performed,

309 without reference

310 to causes pending in court;

311 but he would have the capacity

312 to be annexed to another court,

313 without the intervention

314 of a new appointment,

315 and by that annexation, simply

316 to renew the exercise

317 of the authorities and duties

318 which had been suspended.

319If this might have been the effect

320 of positive and explicit provision,

321 why may it not likewise be the result

322 of provisions,

323 which, presenting opposite considerations,

324 point to the same conclusion:

325 as a compromise

326 calculated to reconcile

327 those considerations

328 with each other

329 and to unite different objects

330 of public utility?

331Surely the affirmative

332 infringes no principle

333 of legal construction;

334 transgresses no rule of good sense.

335Let us then inquire,

336 whether there are not in this case

337 opposite and conflicting considerations,

338 demanding a compromise

339 of this nature?

340On the one hand, it is evident,

341 that if an inferior court

342 once instituted,

343 though found inconvenient,

344 cannot be abolished,

345 this is to entail upon the community

346 the mischief, be it more or less,

347 of a first error

348 in the administration

349 of the government:

350 on the other hand, it is no less evident,

351 that if the judges hold their offices

352 at the discretion of the legislature,

353 they cease to be a co-ordinate,

354 and become a dependent branch

355 of the government;

356 from which dependence,

357 mischiefs infinitely greater

358 are to be expected.

359All these mischiefs,

360 the lesser as well as the greater,

361 are avoided by saying,

362 "Congress may abolish the Courts,

363 but the Judges shall retain their offices

364 with the appurtenant emoluments."

365The only remaining inconvenience then,

366 will be one too insignificant

367 to weigh in a national scale,

368 that is, the expence

369 of the compensations of the Incumbents,

370 during their lives.

371The future and permanent expense

372 will be done away.

373But will this construction

374 secure the benefits

375 intended by the Constitution

376 to be derived

377 from the INDEPENDENT TENURE

378 OF JUDICIAL OFFICE?—

379Substantially it will.—

380The main object

381 is to preserve the judges

382 from being influenced

383 by an apprehension

384 of the loss

385 of the advantages of office.

386As this loss could not be incurred,

387 that influence would not exist.

388Their firmness could not be assailed

389 by the danger of being superseded,

390 and perhaps consigned to want.

391Let it be added,

392 that when it was once understood

393 not to be in the power of the legislature

394 to deprive the judges

395 of their offices and emoluments,

396 it would be a great restraint

397 upon the factious motives,

398 which might induce

399 the abolition of a court.

400This would be much less likely to happen

401 unless for genuine reasons

402 of public utility;

403 and of course there would be

404 a much better prospect

405 of the stability

406 of judiciary establishments.

407Lucius Crassus.

408New-York Evening Post, March 19, 1802.