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trine supported in the memorable case of the mandamus, lately before the supreme court ? Was it not there said, that though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years; that it was right in making the justices, but unconstitutional in limiting their periods of office; that being a judicial officer, he had a right to hold his office during life, (or what is about the same thing,) during good behaviour, in despite of the law which created him, and in the very act of creation, limiting his official life to five vears.

I may notice another case, more likely to happen, to show the absurdity of this construction. Congress have assumed jurisdiction over the Mississippi territory, and have established a court composed of three judges, which court is as much an inferior court, as the circuit or district courts. Of this jurisdiction, Georgia denies the validity. The contest is in a train of settlement. Suppose it shall turn out that the United States are convinced of the injustice of their claim, relinquish it, and restore the territory to Georgia, what becomes of the judges ? Their offices, their duties are gone! Yet they will tell you, we are vested with certain constitutional rights of which you cannot deprive us. It is true the territory is no longer yours. You have no jurisdiction, and we have no power; yet we are judges by the constitution. We hold our offices during good behaviour, and we will behave well as long as you will let us. Is not this a strange situation? You have judges in a territory over which you have no jurisdiction; and you have officers which are perfect sinecures, pensioners for life. Such an absurdity, I am sure the constitution never meant to justify. It is an absurdity equally repugnant to the letter and the genius of the constitution.

Suppose another case. Suppose, what I trust will never happen, a war should take place. Suppose that a part of the United States should be conquered, and that we should be compelled to cede it to a foreign nation. In this district your jurisdiction is gone; your power is gone; the office of a judge is destroyed, and yet the officer holds his appointment for life: this case may be considered as inapplicable to the United States. It may be said, that we have no right to cede a state, or a part of a state. But I believe a different sentiment has been entertained, and perhaps in this House.

But suppose this event to occur in relation to territory not attached to a state. Suppose the government

. should find it necessary to establish an inferior court in an island of Lake Superior. Suppose it should be the fortune of war to place in the possession of the enemy, one of the states; and the question shall be, will you give up this territory in the frozen regions of the lakes, or suffer the state to remain in the possession of the enemy, you being unable to take it from him ? If you give up the territory, your court is annihilated, yet the judges claim a tenure in their offices for life; and this in a country that no longer belongs to you-does not such a result strike every mind as absurd ? Is it not apparent, that whatever claim such men might have upon the generosity of the government, they can have no claim to offices that do not exist. Nay, further; it might, upon the construction now contended for, be insisted, that the constitution forbids you to make a peace upon those terms; that by ceding an inconsiderable territory which you did not

want to secure a whole state, you would abolish the office of a judge, which the legislature had there erected; that this would be an express violation of your constitution; and therefore you must leave a whole state in the possession of the enemy, unless this judge would give you leave to make terms by resigning his office.

I believe, sir, that we should not differ much, if we came to a proper understanding of the true principle on which this question depends. If we establish the principle, that from the nature and essence of the pub

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lic institutions, they are made for the good of the people, and not for that of the individual who administers them, we shall experience no difficulty. Gentlemen, in speaking of a judge, had emphatically called it his office. But it is not his office, but the office of the people. He is only the person appointed to perform certain services required by the public good, and when those services are no longer necessary for that public good, his duties are at an end, his service may be dispensed with, and he ought to retire to private life.

The case had been assimilated to a bridge. But he who builds a bridge does a public good, that entitles him to a growing remuneration forever. But here the good is temporary. The truth is, the judge is more like the man who collects the toll, and who receives the promise of an annual payment, as long as he discharges his duties faithfully. But a flood comes, and sweeps away the bridge; will the toll gatherer, like the judge, contend, that though the bridge is gone, and the owner ruined, that he shall notwithstanding receive his compensation for life, though he cannot continue those services for which his annual stipend was to be the compensation and reward.

But it would seem, that the argument urged on this occasion, and the general course of our legislation had been grounded more on the convenience and emoluments of those appointed to office, than on grounds of public utility. First, we appointed six judges of the supreme court, divided the United States into three circuits, two judges to ride each circuit, in which, with the district judge, to form a court. The law fixed the duties and the compensation, and gentlemen of the first character were ready to accept the places. The salaries, indeed, had been thought high; in some parts of the union they were thought enormous. But a little time passed before they complained of the hardships of their duties; and the law was altered, not so much for public good, as for their personal convenience. Where two judges

were required to hold a court, one was now declared sufficient. Thus you continued their full salaries, while you lopped off half their duties. Shortly after, you assigned them, under the pension law, inconsiderable duties; and they refused to perform them. Thus, while they showed themselves ready to abate of their duties, they adhered to their salaries. Next came the law of last session which takes away all their duties. It leaves them simply a court of appeals. And what have they got to do? To try ten suits; for such is the number now on their docket, as appears from a certificate just put into my hands; and the average number on their docket amounts to from eight to ten. Thus, for the trial of the immense number of eight or ten suits, you have six judges, one with a salary of four thousand, and five others with salaries of three thousand, five hundred dollars each.

I fear that if you take away from these judges, that which they ought officially to do, they will be induced, from the want of employment, to do that which they ought not to do, they may do harm. They may be induced, perhaps, to set about that work gentlemen seem so fond of. They may, as gentlemen have told us, hold the constitution in one hand, and the law in the other, and say to the departments of government, so far shall you go and no farther. This independence of the judiciary, so much desired, will, I fear, sir, if encouraged or tolerated, soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently become so strong, as to crush and absorb all the others into their solid mass.

We have been told, that no state in the union has presumed to touch the judiciary establishment, excepting the state of Maryland. I will not answer for others; but with respect to Virginia, I will answer, that she has touched it. Her constitutional provision for the independence of the judges is nearly similar to that of the United States, and yet she has established, modified and entirely put down particular departments of her system.

[Here Mr. Mason went into a particularization of the different changes the judiciary system of Virginia had undergone. After the particularization, Mr. Mason proceeded]

And yet our judges, who are extremely tenacious of their rights, did not complain. They thought, as I think, that they should not be removed from their offices, that others might be placed in them; and that while they did continue in office, their salaries should be preserved to them. And I believe the whole of our constitutional provision amounts to this ; that, unlike other officers appointed by the President, they shall not be removed by him; that their salaries shall not be diminished by the legislature; and that, while the legislature may continue any particular judicial establishment under which a judge is appointed, he shall hold that appointment in defiance of both the other departments of government. A judge may say, I am not to be turned out of office by the President on the one hand, or starved by the legislature on the other. He may say to the legislature or the Presi. dent, and to both of them combined, you shall not turn me out of this office as long as it exists, to gratify your enmity to me, or your favoritism to another person ; so long as the interest and convenience of the people require this institution, they are entitled to my services; they shall have them, and I will be paid for them to the utmost farthing, in spite of your displeasure or caprice.

Notwithstanding the remarks of gentlemen, I am inclined to think these ideas of the extreme independence of the judges, and the limited powers of the legislature, are not very old, but they are of modern origin, and have grown up since the last session of Congress. For, in the law passed last session, that very law which it is now proposed to repeal, is to be found a practical

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