CHAPTER XIV

THE RECALL OF JUDGES

[REPEAL OF THE JUDICIARY ACT OF 1801]

Debate in the Senate on the Bill to Repeal the Judiciary Law of 1801: In Favor of Repeal, John Breckinridge [Ky.], James Jackson [Ga.], Stevens T. Mason [Va.], David Stone [N. C.]; Opposed, Jonathan Mason [Mass.], Gouverneur Morris [N. Y.], Uriah Tracy [Ct.]-Debate in the House on the Repeal of the Judiciary Bill: Partisan Speeches by Thomas T. Davis [Ky.], Philip R. Thompson [Va.], William B. Giles [Va.], John Randolph [Va.], Republicans, and Archibald Henderson [N. C.], Thomas Morris [N. Y.], Joseph Hemphill [Pa.], John Stanley [N. C.], James A. Bayard, Sr. [Del.], Federalists—Impeachment of Justice Samuel Chase-Constitutional Amendment Proposed by John Randolph (1805) for the Removal of Federal Judges.

O

NE of the first subjects to claim the attention of the first Congress was the organization of the Federal judiciary. This was felt to be the weakest of the three departments of government, and every effort was made to give it power within the limitations of the Constitution, and to impart to it impressive dignity.

The first judiciary act became law on September 24, 1789. It provided for a Supreme Court consisting of a chief justice and five associate justices, and holding two sessions a year beginning, respectively, in February and August; for Circuit Courts holding two sessions annually within their several districts, one of the Supreme Court justices and the district judge presiding; for a marshal and an attorney for each district; for an Attorney-General of the United States; for forms of writs,

etc.

Since then the number of Supreme Court justices has increased to nine, and a distinct class of circuit judges

has been created, while, of course, the number of districts has vastly increased with the growth of the country.

THE MIDNIGHT JUDGES

The first organization of a distinct class of Circuit Courts took place in the closing days of John Adams's Administration, when the Federalists planned to create, for certain of the faithful of their party, positions from which they could not be removed by the incoming party. In this plan President Adams, who had taken no part in the scheme to elect Burr in order to provide places for Federalists [see page 400 ss.], now came to the aid of his party, probably being incited to the act by an impulse of anger at the election of Jefferson.

On February 18, 1801, the day following the decisive ballot for Jefferson in the House, Adams signed an act of Congress creating twenty-three new judgeships. That this act was intended to make places for supporters of the Administration is clearly shown by the fact that at the time there was insufficient business to occupy the attention of the existing Federal judiciary. Adams, however, postponed rather contemptuously the appointment of the new judges until the evening of the last day of his Administration, when he spent the time until midnight affixing his signature to the necessary papers, whence the appointees received the name of the "midnight judges." A few of them, whose papers he hastily gathered into his pocket as the representative of the new President, fearing Adams's action, was taking possession of the executive office on the stroke of twelve, were dubbed throughout their short judicial careers "Adams's pocket judges."

The new Congress, being overwhelmingly Democratic, was desirous of annulling these acts of the Federalists, but were somewhat at a loss how most safely to proceed, since the Constitution provides that the terms of all Federal judges shall be for life, or during good behavior. They finally decided that if they could not remove the man from the office they could accomplish the same result by removing the office from the man.

Accordingly, on January 8, 1802, John Breckinridge [Ky.], the Administration leader in the Senate, introduced in that body a resolution to repeal the Judiciary act of February 18, 1801. The measure met with great opposition from the Federalists, who retained much of their former power in the Upper House.

At this session the proceedings of the Senate began to be reported, and so we are able for the first time in the history of that body extensively to reproduce one of its debates.

Other supporters of the repeal than Breckinridge were James Jackson, of Georgia, Stevens T. Mason, of Virginia, and David Stone, of North Carolina. Leading opponents of the repeal were Jonathan Mason, of Massachusetts, Gouverneur Morris, of New York, and Uriah Tracy, of Connecticut.

REPEAL OF THE JUDICIARY ACT

SENATE, JANUARY 8-FEBRUARY 3, 1802

SENATOR BRECKINRIDGE.-Because the Constitution declares that a judge shall hold his office during good behavior, can it be tortured to mean that he shall hold his office after it is abolished? Can it mean that his tenure should be limited by behaving well in an office which did not exist? Can it mean that an office may exist although its duties are extinct? Can it mean, in short, that the shadow, to wit, the judge, can remain when the substance, to wit, the office, is removed? It must have intended all these absurdities, or it must admit a construction which will avoid them.

The construction obviously is that a judge should hold an existing office so long as he did his duty in that office; and not that he should hold an office that did not exist, and perform duties not provided by law.

SENATOR J. MASON.-The judges hold their appointments for life, unless they misbehave themselves. Why? For this reason: They are not the depositaries of the high prerogatives of government, such as are the President, the Senators, and the Representatives. They neither appoint to office, nor hold the purse-strings of the country, nor legislate for it. They depend entirely upon their talents, which is all they have to recom

mend them. They cannot, therefore, be disposed to pervert their power to improper purposes. What are their duties? To expound and apply the laws. To do this with fidelity and skill requires a length of time. The requisite knowledge is not to be procured in a day. These are the plain and strong reasons which must strike every mind for the different tenure by which the judges hold their offices, and they are such as will eternally endure wherever liberty exists.

On examination it will be found that the people, in forming their Constitution, meant to make the judges as independent of the legislature as of the Executive. Because the duties which they have to perform call upon them to expound not only the laws but the Constitution also; in which is involved the power of checking the legislature in case it should pass any laws in violation of the Constitution. For this reason it was more important that the judges in this country should be placed beyond the control of the legislature than in other countries where no such power attaches to them.

SENATOR MORRIS.-What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be that the check established by the Constitution, wished for by the people, and necessary in every contemplation of common sense is destroyed. It had been said, and truly, too, that governments are made to provide against the follies and vices of men. For to suppose that governments rest upon reason is pitiful solecism. If mankind were reasonable, they would want no government. Hence checks are required in the distribution of the power among those who are to exercise it for the benefit of the people. Did the people of America vest all power in the legislature? No; they had vested in the judges a check intended to be efficient a check of the first necessity, to prevent an invasion of the Constitution by unconstitutional laws-a check which might prevent any faction from intimidating or annihilating the tribunals themselves.

SENATOR JACKSON.-We have been asked if we are afraid of having an army of judges? For myself, I am more afraid of an army of judges, under the patronage of the President, than of an army of soldiers. The former can do us more harm. They may deprive us of our liberties, if attached to the Executive, from their decisions; and from the tenure of office contended for we cannot remove them; while the soldier, however he may act, is enlisted, or, if not enlisted, only subsisted for

two years; while the judge is enlisted for life, for his salary cannot be taken from him. Sir, it is said these evils will not happen. But what security have we for the truth of the declaration? Have we not seen sedition laws? Have we not heard judges crying out through the land sedition, and asking those whose duty it was to inquire, Is there no sedition here? It is true, the sedition law had expired with the last Administration, and he trusted it would not exist, or, at least, be acted on, under the virtuous Jefferson. But hereafter, if it should exist, your judges, under the cry of sedition and political heresy, may place half your citizens in irons. I thank God that no such law now exists or is likely to exist. I thank God that we are not now under the influence of an intolerant clergy, as is evident from their abuse of the President; and that we are not under dread of the patronage of judges is manifest from their attack on the Secretary of State [James Madison]. And I trust that we shall long keep this patronage off by not sanctioning the religious persecution of the clergy on the one hand nor the political violence of the judges on the other.

But, upon the principles of gentlemen, the law which creates a judge cannot be touched. The moment it is passed it exists to the end of time. What is the implication of this doctrine? To alter or amend what may greatly require alteration or amendment it is necessary to return to the creator, and to inquire what this creator is. My principle is that the creator is the people themselves; that very people of the United States whom the gentleman from New York had declared ourselves to be the guardians of, to save the people themselves from their greatest enemies; and to save whom from destroying themselves he had invoked this House. Good God! is it possible that I have heard such a sentiment in this body? Rather should I have expected to have heard it sounded from the despots of Turkey, or the deserts of Siberia, than to have heard it uttered by an enlightened legislator of a free country, and on this floor.

I am clearly, therefore, of opinion that, if the power to alter the judiciary system vests not here, it vests nowhere. It follows, from the ideas of gentlemen, that we must submit to all the evils of the present system though it should exhibit all the horrors of the Inquisition.

It has been remarked by a celebrated writer on the English Constitution that one of the greatest political evils that could befall a people was the existence of large judiciary bodies. To illustrate his ideas he had instanced the Parliaments of