THE NORTH-CAROLINA MINERVA.
1
L E IG H Iusii i4 hed e ve r.v T XJ E S D A Y i y H 0 DG E & BO YL Aft
Tvieifts-f' Shillings per Tor
CONGRESS,
rouse, of Representatives,
Tuesday, February 10-
Debate on the ' bill received from the owr
,'ntiieri" An A3 to repeal ceriam . u,
'efftSmg the organization of . the courts of
'tU IT' Statet."
i Mr. HlMDSRSOM OF N- CAROLINA' -
I fliould oot rife to offer, my pinion
ch the great , queftioo . now before the
tofenmittee, were I not placed. in a fitua
fan different from that in which I have
been fince I have had the honor of a feat
19 this honfe. The legiflature of the (late,
of North Carolina one of whofe reprefen
tatives I ain on thia floor, Jiave feen pro
per to inftrud their fenators, and to re
tommed to their reprefentatives in cod
ferefs, to ufe 'their, .exertions to procure a
icpeal of the law paffed the laft fcffioo oT
'conqrr'cfs for the more convenient organi
Vatto'J wi J"jt courts of the United Statea
and as the b'u on your table has for K
'cbjeA the repeat of, this l.'&f.nd as 1 (hall
Aprobably vote againll its paffge, decent
efpeftfor the opinions ot thofe v-hrfhave
framed and Tent forward tbofe refolutiont,
demand that I Jhould. give the reafons
which influence mv conduft.
And here,. Sir, I ,cpnno't Cbrbear la-
mentinejurcfpely that I fhQOjU untor
unately be . placea firWtaatiiwherft
he highea obljitrttV. duty pej
e to act in oppomii to Ihe wr oF
that community to which 1 immediately
belong." It ia certainly of great i mpor
tance that a public funftionariea we
fhnuld not only difcharge the trufts com
mitted to us with fidelity, and for the
general good, but in fuch a manner aa to
give fatiifa&ion to thofc for whom we' are
ading." V
And if I know the. feeangs of my own
heart, I declare, that next to the conrciouf "'
'irefr'iof hififtf"to?5Md-nirifr
uprightDrfa, is the ioowlcc'ge that in the
difcharce of this duty I ' meet th sptt-
bation of my fellcf-mcn. But, Sir, if
this approbatjon 13 only to be obtained by
the unconditional furrender of my tinder-
Handing, and the violation of my oath, I
ope I (hall be excuied it l do not make
hia faciiGce at the altar of public opinion.
Indeed, Sir, 'wefe'rifpofed to ToregaTmy"
own opinion and adopt that of the legif
lature of my ftate were I inclined to fay
thy will bev done and not mine, I fhould
firft demand of them an abfolution from the
oath which I have lately taken to fuppawt'
the conltitution ot tne United otates. as
long aa that oath is binding on me, I fee
an infuperable objeflion to my adtngin
conformity to their wifhes.
1 will further remaik W, that I am
nota little furprifed that, that augutt bo-.
dy fhould have undertaken to decide on a
qtieftion not neccfluiilV before them with
out having a"a opportunity of hearing the
argument which may be ufed here either
on one liclc. or the otrer. 1 will not per
tnit myfelf for a moment to' belicvi the
meafute originated in a want of confidence
in tbofe who reprefent the flate and the
ople in this aflembly.- Ahd yet, if that
nfidence exifts; the jeafons for this pro.
v dure do not iratncdiately prtfent tbem.
felves to the mind.
.. 1 hope, Sir, it will not be underlVood
that I mean to call the molt diftanl fhade
v uurcipcti on : mat ooay. 1 jeel too
1. i . 1 1 11 1 1 a w . . .
;:eat a relpect for the legiQature of my
native ftate to,, be ; guilty of fuch an at
tempt. No' doubt but they were ir.Sii-
; enced by the pureft anil the mod cortea
undcrdanding, ' It does" not follow by
iany means, that btcaufe my weak and
feeble mind cannot difcover nerfeA nm.
pi ietyln the condud of men. that there, i
fore it doeanbt, exift. Having premifed
iuus mucn mr. vtiairman, 1 will proceed
to an examination of the queftion under
. confideration,. It has been ufual to divide
it into two parts i firft," the expediency j
and fecondly, the authority of congrefs to
nafs the bill on the table. This is a na
xural. and correft' divifin t but I.-' hall
invert the order. of confidcing thequefli.
en, and firft examine our power to aft '
bcroie we cooCder the expcdleocv of
on. na it atter a calm ? and candid"reT
;y,ew of the confluutioo, it (hould be found
b.lt, there will b, no neceffit, fbinq;,,.
!nV.d f 'ft IT1? of 7Pli"g the law
p-f!ed laft feflion cf congref.for omanieing
or the old, aud ccw iud c arr.ft
' ' . . . . . I. . ' i 'i WU1 W1U
T U E SD A
be entirely' out of iew. ' For I amconG
dent that th"e dnot a member of this
body who would wifh to pafa the bill on
your table), if i n doing it we mull violate
the facred charter undet which wC are now
affembled." ' ' .
! The people of America have ordained
and ellablillicd that the powtts of govern
ment fhall be veiled', in three great depart
mentsthe Legiflative, the Executive, and
the Judicial. They have fa id that there
fhall be. an houfe of " reprefeotatives, the
members . of which fhall be chr.fen by the
people ff the feveral fta?es, every ffcond
year. Though this houfe is compofed of
members cholcn by the" people immediate
ly i though ihcy can have no other infr
eft than the great community fro-.i which
they were fent t thbngh"they muft return;
to the common raals, 3 the fhort period of
vo years', yet enligntened America d"irj
not fee proper to entruft the power of
making laws to this body alone they
koc that the hiftory of man and the
tf,y.'yjrj agM bore teflimony agatntt
the iuTtity ot cmr.itting this high power
to any one all'cmbly not checked by fame
other body.
They bare therefore erefted another
braochofthc legiflatare, called the fen-l
ate, -the raetnbers ' of fwhich arc not to be
elciSed by the people immediately, but by
the fovcreigatjes of the feveral Siates : they
are to be chofen for fix years and not for
Ltwo, and the qualification rcquifite to in-
I. .1 r r 1- r .
j;itre moie to a u-at is anereut trom tuat
pfa member of thia Houfe. To thtfe
bodies arc-given the power of initiating all
laws, but after a bill has paffed both of
thefe Houfcs, before it becomes of binding
obligation on the nation, it muft be ap
proved of by the Pielident , it 19 a dead
letter until life is given by the executive.
The Pietident is e'lected hot by the people,
not Dy tne itguuturet ot tne leveral State,
not by either. Houfe of congrefs, but by
Lcelataie&Jbyctbepeiie4a-
hold his olace during lour years ; thi is
t.c tccoaa gret cepattment ot the govern,
inent. It will be. ealily difcovered from
this curfory yicw of our conltittitiun, lhe
caution and jealou?7 wth which the peo
ple have conferred tne power of making
laws.ot commantling ' whai is na;ht, ano
prohibiting what is wrong. But, fir.
aficerThTs lawiwas made, atteF its author!
ttive mandate was acknowledged by the
nation, it became nccellary to ettablifii
fone tribunal to judge of the txtent and
obligatiou ot this law. 1 he people did
not . fee proper- to entruft this "power of
to the legillature or to the executive, be
caufe", tlicy all participated in iheiaking
of thefe laws j and experience had ilio,
that it is 'effeutial for the prefervatinn of
liberty, that the judicial and legiflaUve
authorities flvoulJ be kept feparate arid
diltinft. They therefore, ertded a third
departmcnr, tailed the judicial, and fak!
tbat " the judicial power of the United
StatcJ, 'fhall be ye.'ied in ouefupTenie' court .
and in fuch kifcrior 'couits is Tcngrtfe may
from time to time ordain and tlf.Mlli. The
judges loth of the fuptstn-AnA infaqotlStfnurs,
(hall hold their offices during good behaviour,
and (hall at Itated times receive fbr-thei'r '
fcrvices, a comprnfatiou which dial! not
be diwinifned during their continuance in
office." It is' admitted, I underrtand by
all parties, by eyeiy dfcn'pt!on of perfpns,
that thefc wore)?, fhall hold I thtir offices dur
ing good behaviour are fintcneded as a limi.-
tation of power. The quejlion is j what
power is thus to be limited and checked I
I ahfwer, that all and every power which
would have had til?' authority1 of impair
irtg the tenure vby. wKich the ' juJges hold
their offices (if thefe words were not ir
ferted) is checked and limited . by tliefe
words ; whether that power fhoulj be
found to refidc in congrefs, or in the ex
ecutive. The words are broad and txten.
five HKthctr fignific'ationi aad-caw- only Je,'
Satisfied by being epnftrued to controLthe
legiilative as wc(Las theexecutive power.
But genlTemen contend, that they mud be
confined to limltintf the power of th Pie
fideot. . I ailtl gentlemen, vnfeat is there in,
he cohftitution to point their fignification
to this end alone J When yon ered a court,
and ftlt it with a jiidge, and tell hint in
plain limpJc language, that he fhall hold
nis office during good behaviour, or as long
as he fhall bthave well j what t befeech
youj fir, will any man whofe mind is not
bewildered in the mazes ot mefdern meta
phyGcs infer from the declaration ? Cct
taiuly that thexffice will not. be taken j
Y, Marci 9,
from hint intil he mifbcKaves $ nor that he
wiu be tike n from the office during his
good beha.vioar.''' Under this imprilfiun he
enters apoo his duty, performing it with
the tnoft perft'd fatisfadion to'till petfons'
wno nave outiriels betore him j and the
legiflatare jfithoet whifpering a complaint,
aboli(bci-f he? office f and thereby turns out
the judge.. '' The judge ia told thia is no
violation of "the comp'ad,' although you
have behaved well, although we have pro.
mifed, that as long as yon did behave well,
you fhould iontinue in office; yet, there is
now no farther ncceffity for yoifr.1 fer
vice, anu ou may .retire. Thefe worJs,
during' g&od -.behaviour, are intended to
prevent the 'Prefident frop difmifling you
from ofCce aeionot the legiflatute from
deftroying" your office. Do you fuppofe,
nr, ijiat mere is a man ot common under
Hand ing iu the nation whofe mind .is not
alive to the influence of party fpirit, that
would yield his affent : to this reafoning
I hope and Relieve, there is not. But", fir,
hpw is it proved that the Prefident would
have hattKbe power of removing the judg
c tiom iheu olBce, if :hef words "during
good cVhaviour had not been inferted in
the , COtlfrttUtion ? Is there anv utnnU ta
tht inttronunt which give the Prefident
exprefsly the power ofereaioving sny officer
$i picaiure i 11 mere are 1 call upon
gentlemen to point them o,ut It does not'
refult front the fctlhionable "axiom, that the
power which can cteate can deftroy. The
Prefident cao nominate, but 'he can appoint
to office only by the advice and cohfentof
the fenatt I herefore, J. would follow,
if the poiver tf difplacing rtfulu from that
ol creating $ that the feoate fliould parti
cipate ia difpijeing as "well a creating of
ficers. B"ut bswevec. tlrfs may be,1t isctr
tnly a mtre4oi)rtru6tivc power which" he
has exeKifeff, becaule the legiflature have
irom motiys of expediency acknowledged,
that; he hil it. If the conllitution dw.
not Mefirafily give..the Pjefidentihe. right
i rciuu'iug omvrrs ae pieaturr, ano it that
iglt dcjjwad upon legiflative ad or con-
ItrdiotlS, ' srttra Wfrnkt hjiir'hten. th
neceility for-inferting thefe emphatic word
as a cnecK. and limitation of executive
power,, where without them the PrefidVnt
has no fuch power- You jrc. taking great
pains tc control a power which does not
exitt. The '"perfuns who framed our con
llitution, knew that a power of removal in
ordinary cafes muft exilt fomewhere. Tbey
look care therefore; that in whatevef hands
it might fall, the language of the conltitu
tion lefpeding the tenme of the office of a
judge fhould be co extenfive with the whole
power of removal, whether it fhould jefide
in one or in more hands.
But, fir thefe words, dtiring good be-
haviout, are familiar to the Anien'can peo.
pie ; when the political bands which united
ua with Great Britain Were burlt afunder,
and. we affnmed among the nations of the
erth- an incepeudent Hation, moft, if not
all the dates introduced thefe words into
their conllitutions. - They were deemed
effential, and a meaning has br;en (lamped
Upon them which if is not in the power of
tf'ia houfe to change. Let us for a moment
examine lome ot the Kate conlluutions
and fee what Jignilication muft of necefiity
be given to theie words. I will firlt, ad
vert to the conltitution of North Carolina
as being one with which I am beft iicqnaint-
ed. In that inllrument it is (aid " that
the General Affenfbly fhall, by joint ballot,
ot bota.houles, appoiat judges of the fu
preme court of law and equity; judges of
admiralty and an attorney -genera!, who
iRall be coaimifil'ined by the Governor,
and hold their offices during good beha
viour." I fk gentlemen what power is
otend'ed here to be limited and checked by
the words fhall hold their offices during
good behaviour ?" jJJot the executive, tor
it is well known that the, Governor of that
(late cannot appoint even a conllable. It
could not be,xlifrneaning -of thii eonfli-
t ut ton to check his power ot removal, tor
that of appointment is not any "where given
to him. Then thefe words mufl meart
that the Iegiflatu" fhould not have the
power of removing the jtidges from office
asvlong as they behaved well. If you do
not give this figriincation tol .lhe words they
are of no importance, and might as well
have been left out of the iaftrument". I
opTrM'feelinga of. the people ofNorth-
A 'II a ' ., . - 1 .1-
Carolina wiu not oeaiurt, ana tneir un
derllaiidings infulted by telling ius that
the meaning of the words may be fatisfied
by conllruiog them to extend to a prohibi
tip.1 of the .legiflature difplacing the judg-
Vol. VI. Numb.-369
ei end proceeding t the eledion of athe'
without thofe difplaced being guilty of
mibebavieur. If this is cdrrcdt, what fe
curity, fir, have the people then for the
independence of their judges ? The con
Ititution has told them that they fhould be
judged by 'men who, during the time they
behaved well (hould continue in office, or
what is the fame thing, fhould, hold theraY
during good behaviour. But they are now
informed that this was intended to operate
as a check upon the legiflature's difplacin
them by felcding others to fill their offices
when tbey had not mtloehaved. but rtBt to
prevent their paffing a law repealing that
ad by which the appointment to olifice was
WtSff. . m ntliw n .. J fT" I I
i..mu. , vi ih . muiuof uur Muciiipiy arc
exprefsly foi bidden til impair the tenute by
which our judges hold their offices, aS
long as they behave well s btu tbey cait
repeat the law, and the judges' are out of
office, "though they may be the molt vir
tuous, upright and able men in the coun
try, and have difcharged their duties fa it hi
fully. Are the 'gentlemen bn this floor
from N. Carolina prepared to give this
CoottruCtioii. to . that tomlitution f Are
they prepared to tell their coaftiruenta
that the provibons ot their conftitutioa
may i thus evaded, and the whole nower
Of government, 'legiflative, executive and
judicial be concentrated in-. th. nnrat
aHcmbly, and abfolute defpotifm impofed
upon ttiem I If they are not I conjure
them to paufe before they give their vote.
tor the pallage ot tlie bill on the table. I
will twttier oblerve, Mr. Chairman, that
words of the fame impart with thofe I have
quoted' from the cunltuution ofNoith-
Caiolioa, are to be futind in tlie Viitr'nia
v,uuiii-aiuiiiia cunuitununs, in nei
ther of which ttaks hath the Governor
the. riffht ot appointiner iuiltrf In VT,
ginia, tif, the judges of the tuoieme'eourfi
in 1791; declared that' the affeinbly of that
uaie naa not tne power oi .mpofing chan
ctrvi dutiea on "the diftriflt: 1,i,T5 j" -
delivering their Opinions,' defcanttd at larae
on the independence of the judiciary, nJ
fatd th-it ik ff,mMf 'ionld ivt 'annihilate
the office of a judge, - which was fecured ti
him by the conduution lf thjs is a true
cKpo.UO" the cPnfttut'on of thefe ftates
l a Ik" Lt-ntltmen by what authoritv thfv
now attempt to impofe a di.Tetent mean
ing on the lame words, when (otin.j in the :
conllitution of the United States? Are
we to fuppofe that the whole people f
America were Ills regardful of .their rightu,
lefs foifcitous for independent judges, than
ihe peopleof particular (lutes And tin
lels tins is conceded the docirine of gen-'
tlem.en who advocate the paffage of this
bill uiuff be incorre&.v
But it has been faid" that the powe ra of
each congrefs aie equal, aud t,hat a fnbfc- .
qucnt legiflature can repeal be ads of a
former. Add as this law was paffed by the
laftcongrefa, we have the f,i me- power to
repeal it which they had to en:id it. This
obj.cd!on"t'j more plaufible than folid. It
is not toiittrtitd by ns that legiflaturea
who are not .limited in their .poweifl, have
not the fame authority. The queftion i
dot what omhirrcicp.t aflcmbliea can do. but
what we can do under a conltitution defin
ing & limiting with accuracy, the extent &
boundaries of our authority. The very"
fedion in the conftitution, art. 3,, fed ion 1,
which! have read, is a proof again (I the
power of everj congrefs to repeal the ads
of their ptedeceffors- In the latter part of
the fi".ne fedion it is. provided that the.
judges (hall receive for their fcrvicef a com
penfation which fhall not he diminidied dur
ing their continuance in office. I fuppofe
that it will not be contended that we can -diminiih
this componfation during the con
tinuance of the office, and yet the falary
was fixed and afccrtainrd by a formcrcon- '
grefs ; the fame obfervations may be made
with refped to compenfation to the Prcfi-
,deut, which ran neither be encreafed nor
dtrainiflied during the period for which he
fhall have-been- cleded. - It is not compe-
terit for this congrefs to vary the compenfa
tion to him which has been fixed by a prior
legiflature. It is clearly feen upon a little
inveftigatioa that the pofition which ceii-'
tlemen take i too extenfive, and U ads im '
mediately toM a deftru&ioo of the "cohftitu-
tion.- It does away all check and makes;
the legiflature omnipotent. If has been
aflccd that if a corrupt and unprinciolecf
congrefs" fhould make an army of judges. --
have not a fubfequed congrefs the right of
repealing the law eitablifhing th,is mondroua - ;
faflicial fyftem- I anfwer, that they have
, ' ($etkflpzcj - - "