Founding Made Plain every word, clause by clause
1801Examination 17:
1THE EXAMINATION.
2Number XVII.
3[New York, March 20, 1802]
4It was intended
5 to have concluded the argument
6 respecting the Judiciary Department
7 with the last number.
8But a speech*
9 lately delivered
10 in the House of Representatives,
11 having since appeared,
12 which brings forward one new position,
13 and reiterates some others
14 in a form well calculated
15 to excite prejudice,
16 it may not be useless
17 to devote some further attention
18 to the subject.
19The new position is,
20 that the clause of the Constitution,
21 enabling the judges
22 to hold their offices
23 during good behavior,
24 ought to be understood
25 to have reference
26 to the Executive only,
27 BECAUSE ALL OFFICES
28 ARE HOLDEN OF THE PRESIDENT!!
29This is the second example
30 of a doctrine
31 contrary to every republican idea,
32 broached in the course of this debate
33 by the advocates of the repealing law.†
34Had a federalist uttered the sentiment,
35 the cry of monarchy
36 would have resounded
37 from one extremity
38 of the United States to the other.
39It would have been loudly proclaimed
40 that the mask was thrown aside,
41 by a glaring attempt
42 to transform the servants of the people
43 into the supple tools
44 of Presidential ambition.
45But now,
46 to justify a plain violation
47 of the Constitution,
48 and serve a party purpose,
49 this bold and dangerous position
50 is avowed
51 without hesitation or scruple,
52 from a quarter remarkable, chiefly,
53 for the noisy promulgation
54 of popular tenets.
55The position is not correct;
56 and it is of a nature
57 to demand the indignant reprobation
58 of every real republican.
59In the theory
60 of all the American Constitutions,
61 offices are holden of the Government,
62 in other words,
63 of the PEOPLE through the GOVERNMENT.
64The appointment
65 is indeed confided to a particular organ,
66 and in instances
67 in which it is not otherwise provided
68 by the Constitution or the laws,
69 the removal of the officer
70 is left to the pleasure or discretion
71 of that organ.
72But both these acts
73 suppose merely an instrumentality
74 of the organ,
75 from the necessity or expediency
76 of the people's acting
77 in such case by an agent.—
78 They do not suppose
79 the substitution of the agent
80 to the people,
81 as the object
82 of the fealty or allegiance
83 of the officer.
84It is said
85 that the word holden
86 is a technical term denoting tenure,
87 and implying that there is one who holds;
88 another of whom the thing is holden.
89This assertion is indeed agreeable
90 to the common use of the word
91 in our law books.
92But it is hardly to be presumed
93 that it was employed in the Constitution
94 in so artificial a sense.
95It is more likely
96 that it was designed
97 to be the equivalent
98 of the words possess, enjoy.
99Yet let the assertion
100 be supposed correct.—
101In this case,
102 it must also be remembered
103 that the term in this technical sense
104 includes two things,
105 the quantity of interest
106 in the subject holden,
107 and the meritorious consideration
108 upon which the grant is made;
109 which in many cases
110 includes service or rent,
111 in all fealty;
112 this last forming emphatically
113 the link or tie
114 between the lord and the tenant,
115 the sovereign and the officer.
116Will any one dare to say
117 that fealty or allegiance,
118 as applied to the government
119 of the United States,
120 is due from the officer
121 to the President?
122Certainly it is not.
123It is due to the people
124 in their political capacity.
125If so, it will follow
126 that the office is holden
127 not of the President,
128 but of the Nation, State
129 or Government.
130It is remarkable
131 that the Constitution
132 has every where used the language
133 "Officers of the United States,"
134 as if to denote the relation
135 between the officer and the sovereignty;
136 as if to exclude
137 the dangerous pretension
138 that he is the mere creature
139 of the executive;
140 accordingly, he is to take an oath
141 to support the Constitution,
142 that is, an oath of fidelity
143 to the government;
144 but no oath of any kind
145 to the President.
146In the theory of the British government,
147 it is entirely different;
148 there the majesty of the nation
149 is understood to reside in the prince.
150He is deemed the real sovereign.
151He is, emphatically,
152 the fountain of honor.
153Allegiance is due to him;
154 and consequently, public offices are,
155 in the true notion of tenure,
156 holden of him.
157But in our Constitution
158 the President is not the sovereign;
159 the sovereignty is vested
160 in the government, collectively;
161 and it is of the sovereignty,
162 strictly and technically speaking,
163 that a public officer holds his office.
164If this view of the matter be just,
165 the basis of the argument,
166 in point of fact, fails;
167 and the principle of it
168 suggests an opposite conclusion,
169 namely, that the condition
170 of good behavior
171 is obligatory
172 on the whole government,
173 and ought to operate as a barrier
174 against any authority
175 by which the displacement
176 of the judges
177 may be directly or indirectly effected.
178In the same speech,
179 much stress has been laid
180 on the words
181 "during their continuance in office,"
182 as implying
183 that the compensation of the judge
184 was liable to cease
185 by a legislative discontinuance
186 of the office.
187If the words had been,
188 during the continuance of the office,
189 the argument would have been pertinent—
190 but as they stand,
191 a different inference, if any,
192 is to be drawn from them.
193They seem rather to relate
194 to the continuance of the officer
195 than to that of the office.
196But in truth,
197 an inference either way—
198 is a pitiful subtilty.
199The clause is neutral;
200 its plain and simple meaning being,
201 that the compensation
202 shall not be diminished
203 while the judge retains the office.
204It throws no light whatever
205 on the question
206 how he may lawfully cease
207 to possess it.
208Another point is pressed
209 with great earnestness,
210 and with greater plausibility.
211It is this,
212 that the Constitution
213 must have intended
214 to attach recompense to service,
215 and cannot be supposed
216 to have meant to bestow compensation,
217 where, in the opinion of the legislature,
218 no service was necessary.
219Without doubt,
220 the Constitution does contemplate service
221 as the ground of compensation;
222 but it likewise takes it for granted,
223 that the legislature
224 will be circumspect
225 in the institution of offices;
226 and especially,
227 that it will be careful
228 to establish none
229 of a permanent nature,
230 which will not be permanently useful.
231With this general presumption,
232 the Constitution anticipates
233 no material inconvenience
234 from the permanency
235 of judicial offices
236 connected with permanent emoluments.
237And though it should have foreseen
238 that cases might happen
239 in which the service was not needed,
240 yet there is no difficulty whatever
241 in the supposition,
242 that it was willing to encounter
243 the trivial contingent evil
244 of having to maintain
245 a few superfluous officers,
246 in order to obtain the immense good,
247 of establishing and securing
248 the independence
249 of the courts of justice.
250The readiness of the officer
251 to render service
252 at the will of the government
253 is the consideration, as to him,
254 for continuing the compensation.
255But the essential inducement
256 is the public utility incident
257 to the independency
258 of the judicial character.
259As to the supposition
260 of an enormous abuse of power,
261 by creating a long list of sinecures,
262 and a numerous host of pensioners;
263 whenever such a thing shall happen,
264 it will constitute one of those extreme cases,
265 which, on the principle of necessity,
266 may authorize extra-constitutional remedies.
267But these are cases
268 which can never be appealed to
269 for the interpretation of a Constitution,
270 which, in meting out
271 the powers of the government,
272 must be supposed to adjust them
273 on the presumption
274 of a fair execution.
275A further topic of argument is,
276 that our doctrine would equally restrain
277 the legislature
278 from abolishing offices
279 held during pleasure.
280But this is not true.
281The two things
282 stand on different ground.
283First, the executive has such an agency
284 in the enacting of laws,
285 that, as a general rule,
286 the displacement of the officer
287 cannot happen against his pleasure.
288Second, the pleasure of the President,
289 in all cases not particularly excepted,
290 is understood to be subject
291 to the direction of the law.
292Third, an officer during pleasure,
293 having merely a revocable interest,
294 the abolition of his office
295 is no infringement of his right.
296In substance,
297 he is a tenant at the will
298 of the government,
299 liable to be discontinued
300 by the executive organ,
301 in the form of a removal;
302 by the legislative,
303 in the form of an abolition
304 of the office.
305These different considerations
306 reconcile the legislative authority
307 to abolish,
308 with the prerogative
309 of the Chief Magistrate to remove,
310 and with the temporary right
311 of individuals to hold.—
312And therefore,
313 there is no reason
314 against the exercise
315 of such an authority;
316 nothing to form an exception
317 to the general competency
318 of the legislative power
319 to provide for the public welfare.
320Very different is the case
321 as to the judges.
322The most persuasive motives
323 of public policy,
324 the safety of liberty itself,
325 require that the judges
326 shall be independent
327 of the legislative body;
328 in order to maintain effectually
329 the separation
330 between the several departments.
331The provision
332 that their compensation
333 shall not be diminished,
334 is a clear constitutional indication,
335 that their independence
336 was intended to be guarded
337 against the legislature.
338The express declaration
339 that they shall hold their offices
340 during good behavior,
341 that is, upon a condition
342 dependent on themselves,
343 is repugnant to the hypothesis
344 that they shall hold
345 at the mere pleasure of others.
346Provisions which profess
347 to confer rights on individuals,
348 are always entitled
349 to a liberal interpretation
350 in support of the rights,
351 and ought not, without necessity,
352 to receive an interpretation
353 subversive of them.
354Provisions which respect
355 the organization
356 of a co-ordinate branch
357 of the government,
358 ought to be construed
359 in such a manner,
360 as to procure for it
361 stability and efficiency,
362 rather than in such a manner
363 as to render it weak,
364 precarious, and dependent.
365These various and weighty reasons
366 serve to establish
367 strong lines of discrimination
368 between judicial and other officers;
369 and to prove,
370 that no inference can be drawn
371 from the power of the legislature
372 as to the latter,
373 which will be applicable
374 to the former.
375One more defence
376 of this FORMIDABLE CLAIM
377 is attempted to be drawn
378 from the example
379 of the judiciary establishment
380 of Great Britain.
381It is observed,
382 that this establishment,
383 the theme of copious eulogy
384 on account of the independence
385 of the judges,
386 places those officers
387 upon a footing far less firm
388 than will be that
389 of the judges of the United States,
390 even admitting the right of Congress
391 to abolish their offices
392 by abolishing the courts
393 of which they are members.
394And as one proof of the assertion,
395 it is mentioned,
396 that the English judges
397 are removable by the king,
398 on the address
399 of the two houses of parliament.
400All this might be very true,
401 and yet would prove nothing
402 as to what is or ought to be
403 the construction of our Constitution
404 on this point.
405It is plain
406 from the provision
407 respecting compensation,
408 that the framers of that Constitution
409 intended to prop the independence
410 of our judges,
411 beyond the precautions
412 which have been adopted in England
413 in respect to the judges
414 of that country;
415 and the intention apparent
416 in this particular,
417 is an argument,
418 that the same spirit
419 may have governed other provisions.
420Cogent reasons have been assigned,
421 applicable to our system,
422 and not applicable
423 to the British system,
424 for securing the independence
425 of our judges
426 against the legislative,
427 as well as against
428 the executive power.
429It is alleged
430 that the statute of Great Britain
431 of the 13 of William III.
432 was the model
433 from which the framers
434 of our Constitution copied
435 the provisions
436 for the independence
437 of our judiciary.
438It is certainly true,
439 that the idea of the tenure of office
440 during good behavior,
441 found in several of our Constitutions,
442 is borrowed from that source.
443But it is evident
444 that the framers of our federal system
445 did not mean
446 to confine themselves
447 to that model.—
448Hence the restraint
449 of the legislative discretion,
450 as to compensation;
451 hence the omission of the provision
452 for the removal of the judges
453 by the executive,
454 on the application
455 of the two branches of the legislature;
456 a provision which has been imitated
457 in some of the State governments.
458This very omission
459 affords no light inference,
460 that it was the intention
461 to depart from the principle
462 of making the judges removable
463 from office,
464 by the co-operation or interposition
465 of the legislative body.
466Why else was this qualification
467 of the permanent tenure of the office,
468 which forms a conspicuous feature
469 in the British statute,
470 and in some of the State Constitutions,
471 dropped in the plan
472 of the federal government?
473The insertion of it
474 in the British statute,
475 may also be supposed
476 to have been dictated by the opinion,
477 that without a special reservation,
478 the words during good behavior
479 would have imported
480 an irrevocable tenure.
481If so, the precaution
482 will serve to fortify our construction.
483But, however it may seem in theory,
484 in fact, the difference
485 in the genius of the two governments
486 would tend to render
487 the independence of the judges
488 more secure under the British statute,
489 than it would be in this country,
490 upon the construction
491 which allows to Congress
492 the right to abolish.
493The reason is this.—
494From the Constitution
495 of the British monarchy,
496 the thing chiefly to be apprehended is,
497 an overbearing influence of the crown
498 upon the judges.
499The jealousy of executive influence
500 resting upon more powerful motives
501 in that country than in this,
502 it may be expected
503 to operate as a stronger obstacle
504 there than here,
505 to an improper combination
506 between the executive
507 and legislative departments
508 to invade the judiciary.
509Moreover, the British executive
510 has greater means
511 of resisting parliamentary control,
512 than an American executive has
513 of resisting the control
514 of an American legislature;
515 consequently, the former
516 would be in less danger than the latter,
517 of being driven to a concurrence
518 in measures hostile
519 to the independence of the judges.
520And in both these ways,
521 there would be greater security
522 for the British than for the American judges.
523Thus is it manifest,
524 that in every attitude
525 in which the subject has been placed,
526 the argument is victorious
527 against the power of Congress
528 to abolish the judges.
529But what, alas!
530 avails the demonstration
531 of this important truth?
532The fatal blow has been struck!
533It is no longer possible
534 to arrest the rash and daring arm
535 of power!
536Can the proof
537 that it has acted without right,
538 without warrant—
539 can this heal the wound?—
540 Can this renovate
541 the perishing Constitution?
542Yes, let us hope
543 that this will be the case.
544Let us trust
545 that the monitory voice
546 of true patriotism
547 will at length reach the ears
548 of a considerate people,
549 and will rouse them
550 to a united and vigorous exertion
551 for the restoration
552 of their VIOLATED CHARTER;
553 not by means,
554 either disorderly or guilty,
555 but by means
556 which the Constitution will sanction
557 and reason approve.
558Surely this will be so.—
559A people, who, descrying tyranny
560 at a distance,
561 and guided only
562 by the light of just principles,
563 before they had yet felt
564 the scourge of oppression,
565 could nobly hazard all
566 in the defence of their rights;
567 a people, who, sacrificing their prejudices
568 on the altar of experience,
569 and spurning the artifices
570 of insidious demagogues,
571 could, as a deliberate act
572 of national reason,
573 adopt and establish for themselves
574 a Constitution,
575 which bid fair
576 to immortalize their glory
577 and their happiness:
578 such a people, though misled
579 for a period,
580 will not be the final victims
581 of a delusion,
582 alike inauspicious
583 to their reputation
584 and to their welfare.
585They will not long forget
586 the fame they have so justly merited,
587 nor give the world occasion
588 to ascribe to accident,
589 what has hitherto been imputed
590 to wisdom.
591They will disdain
592 to herd with the too long list
593 of degraded nations,
594 who have bowed their necks
595 to unworthy idols
596 of their own creating—
597 who, immolating their best friends,
598 at the shrine of falsehood,
599 have sunk under the yoke
600 of sycophants and betrayers.
601They will open their eyes
602 and see the precipice
603 on which they stand!
604They will look around
605 and select from among the throng,
606 the men who have heretofore
607 established a claim to their confidence
608 on the solid basis
609 of able and faithful service;
610 and they will,
611 with indignation and scorn,
612 banish from their favor
613 the wretched impostors,
614 who, with honeyed lips
615 and guileful hearts,
616 are luring them to destruction!
617Admonished by the past,
618 and listening again
619 to the counsels of real friends,
620 they will make a timely retreat
621 from the danger which threatens—
622 they will once more arrange themselves
623 under the banners of the Constitution—
624 with anxious care will repair
625 the breaches that have been made,
626 and will raise new mounds
627 against the future assaults
628 of open or secret enemies!
629Lucius Crassus.
630New-York Evening Post, March 20, 1802.
631* By Mr. Giles.
632† The other is the denial
633 of the right of the courts
634 to keep the Legislature
635 within its constitutional bounds
636 by pronouncing laws
637 which transgress them, inoperative.

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