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are subjects of legislative discretion; and has contended that the word may includes all power respecting the subject to which it is applied, consequently to raise up and to put down, to create and to destroy. I must en
I treat your patience, sir, while I go more into this subject than I ever supposed would be necessary. By the article, so often quoted, it is declared, “ that the judicial power of the United States, shall be vested in one supreme court, and in such inferior courts, as the Congress may from time to time establish.” I beg leave to recall
your attention to what I have already said of these inferior courts. That the original jurisdiction of various subjects being given exclusively to them, it became the bounden duty of Congress to establish such courts. I will not repeat the argument already used on that subject. But I will ask those, who urge the distinction between the supreme court and the inferior tribunals, whether a law was not previously necessary before the supreme court could be organized. They reply, that the constitution says, there shall be a supreme court, and therefore the Congress are commanded to organize it, while the rest is left to their discretion. This, sir, is not the fact. The constitution says, the judicial power shall be vested in one supreme court, and in inferior courts. The legislature can, therefore, only organize one supreme court, but they may establish as many inferior courts as they shall think proper. The designation made of them by the constitution is, such inferior courts as the Congress may from time to time ordain and establish. But why, say gentlemen, fix precisely one supreme court, and leave the rest to legislative discretion? The answer is simple: it results from the nature of things, from the existent and probable state of our country. There was no difficulty in deciding that one and only one supreme court would be proper or necessary, to which should lie appeals from inferior tribunals. Not so as to these. The United States were advancing in rapid progression. Their population of three millions was soon to become five, then ten, afterwards twenty millions. This was well known, as far as the future can become an object of human comprehension. In this increase of numbers, with a still greater increase of wealth, with
a the extension of our commerce and the progress of the arts, it was evident, that although a great many tribunals would become necessary, it was impossible to determine either on the precise number or the most convenient form. The convention did not pretend to this prescience; but had they possessed it, would it have been proper to have established then all the tribunals necessary for all future times ? Would it have been wise to have planted courts among the Chickasaws, the Chocktaws, the Cherokees, the Tuscaroras, and God knows how many more, because at some future day the regions over which they roam might be cultivated by polished men? Was it not proper, wise and necessary, to leave in the discretion of Congress, the number and the kind of courts which they might find it proper to establish for the purpose designated by the constitution? This simple statement of facts, facts of public notoriety, is alone a sufficient comment on, and expli
a cation of, the word on which gentlemen have so much relied. The convention in framing, the people in adopting, this compact, say the judicial power shall extend to many cases, the original cognizance whereof shall be by the inferior courts; but it is neither necessary, nor even possible, now to determine their number or their form: that essential power, therefore, shall vest in such inferior courts as the Congress may, from time to time, in the progression of time and according to the indication of circumstances, establish: not provide, or determine, but establish. Not a mere temporary provision, but an establishment. If, after this, it had said in general terms, that judges should hold their offices during good behaviour, could a doubt have existed on the interpretation of this act, under all its attending circumstances, that the judges of the inferior courts were intended, as well as those of the supreme
court? But did the framers of the constitution stop there? Is there then nothing more? Did they risk on these grammatical niceties the fate of America? Did they rest here the most important branch of our government? Little important, indeed, as to foreign danger: but infinitely valuable to our domestic peace, and to personal protection against the oppression of our rulers. No; lest a doubt should be raised, they have carefully connected the judges of both courts in the same sentence; they have said “ the judges both of the supreme and inferior courts,” thus coupling them inseparably together. You may cut the bands, but you can never untie them. With salutary caution they devised this clause, to arrest the overbearing temper which they knew belonged to legislative bodies. They do not say the judges simply, but the judges of the supreme and inferior courts shall hold their offices during good behaviour. They say, therefore, to the legislature, you may judge of the propriety, the utility, the necessity of organizing these courts; but when established, you have done your duty. Anticipating the course of passion in future times, they say to the legislature, you shall not disgrace yourselves by exhibiting the indecent spectacle of judges established by one legislature removed by another: we will save you also from yourselves: we say these judges shall hold their offices; and surely, sir, to pretend that they can hold their office after the office is destroyed, is contemptible.
The framers of this constitution had seen much, read much, and deeply reflected. They knew by experience the violence of popular bodies, and let it be remembered, that since that day, many of the states, taught by experience, have found it necessary to change their forms of government to avoid the effects of that violence. The convention contemplated the very act you now attempt. They knew also the jealousy and the power of the states: and they established for your and for their protection, this most important department. I beg gentlemen to hear and remember what I
is this department alone, and it is the independence of this department, which can save you from civil war. Yes, sir, adopt the language of gentlemen, say with them, by the act to which you are urged, “if we cannot remove the judges, we can destroy them." Establish thus the dependence of the judiciary department; who will resort to them for protection against you? Who will confide in, who will be bound by their decrees? Are we then to resort to the ultimate reason of kings? Are our arguments to fly from the mouths of our cannon?
We are told, that we may violate our constitution, because similar constitutions have been violated elsewhere. Two states have been cited to that effect, Maryland and Virginia. The honorable gentleman from Virginia tells us, that when this happened in the state he belongs to, no complaint was made by the judges. I will not inquire into that fact, although I have the protest of the judges now lying before me; judges eminent for their talents, renowned for their learning, respectable for their virtue. I will not in
I quire what constitutions have been violated. I will not ask either when or where this dangerous practice began, or has been followed; I will admit the fact. What does it prove? Does it prove, that because they have violated, we also may violate? Does it not prove directly the contrary? Is it not the strongest reason on earth for preserving the independence of our tribunals? If it be true, that they have, with strong hand, seized their courts, and bent them to their will, ought we not to give suitors a fair chance for justice in our courts, or must the suffering citizen be deprived of all protection?
The gentleman from Virginia has called our attention to certain cases which he considers as forming necessary exceptions to the principles for which we contend. Permit me to say, that necessity is a hard law, and frequently proves too much; and let the gentleman recollect, that arguments, which prove too may be
much, prove nothing. He has instanced a case where it
proper to appoint commissioners, for a limited time, to settle some particular description of controversies. Undoubtedly it is always in the power of Congress to form a board of commissioners for particular purposes. He asks, are these inferior courts, and must they also exist forever? I answer, that the nature of their offices must depend on the law by which they are created; if called to exercise the judicial functions designated by the constitution, they must have an existence conformable to its injunctions.
Again, he has instanced the Mississippi Territory, claimed by and which may be surrendered to the state of Georgia ; and a part of the union, which may be conquered by a foreign enemy. And he asks triumphantly, are our inferior courts to remain after our jurisdiction is gone? This case rests upon a principle so simple, that I am surprised the honorable member did not perceive the answer in the very moment when he made the objection. Is it by our act that a country is taken from us by a foreign enemy? Is it by our consent that our jurisdiction is lost? I had the honor, in speaking the other day, expressly, and for the most obvious reasons, to except the case of conquest. As well might we contend for the government of a town swallowed up by an earthquake.
[Mr. Mason explained: he had supposed the case of territory conquered, and afterwards ceded to the conqueror, or some other territory ceded in lieu of it.]
The case is precisely the same: until after the peace the conquest is not complete. Every body knows, that until the cession by treaty, the original owner has the postliminary right to a territory taken from him. Beyond all question, where Congress are compelled to cede the territory, the judges can no longer exist, unless the new sovereign confer the office. Over such territory the authority of the constitution ceases, and of course the rights which it confers.
It is said, the judicial institution is intended for the