The party attainted is seized and brought before a federal court, and an award of execution pa.s.sed against him. He opens the const.i.tution and points to this line, "no bill of attainder or _ex_ _post_ _facto_ law shall be pa.s.sed." The attorney for the United States reads the bill of attainder.

The courts are bound to decide, but they have only the alternative of p.r.o.nouncing the law or the const.i.tution invalid. It is left to them only to say that the law vacates the const.i.tution, or the const.i.tution voids the law. So, in the other case stated, the heir after the death of his ancestor, brings his ejectment in one of the courts of the United States to recover his inheritance. The law by which it is confiscated is shown. The const.i.tution gave no power to pa.s.s such a law. On the contrary, it expressly denied it to the government. The t.i.tle of the heir is rested on the const.i.tution, the t.i.tle of the government on the law. The effect of one destroys the effect of the other; the court must determine which is effectual.

There are many other cases, Mr. Chairman, of a similar nature to which I might allude. There is the case of the privilege of _habeas_ _corpus_, which cannot be suspended but in times of rebellion or invasion. Suppose a law prohibiting the issue of the writ at a moment of profound peace! If, in such case, the writ were demanded of a court, could they say, it is true the legislature were restrained from pa.s.sing the law suspending the privilege of this writ, at such a time as that which now exists, but their mighty power has broken the bonds of the const.i.tution, and fettered the authority of the court? I am not, sir, disposed to vaunt, but standing on this ground, I throw the gauntlet to any champion upon the other side. I call upon them to maintain, that, in a collision between a law and the const.i.tution, the judges are bound to support the law, and annul the const.i.tution. Can the gentlemen relieve themselves from this dilemma? Will they say, though a judge has no power to p.r.o.nounce a law void, he has a power to declare the const.i.tution invalid?

The doctrine for which I am contending, is not only clearly inferable from the plain language of the const.i.tution, but by law has been expressly declared and established in practice since the existence of the government.

The second section of the third article of the const.i.tution expressly extends the judicial power to all cases arising under the const.i.tution, laws, etc. The provision in the second clause of the sixth article leaves nothing to doubt. "This const.i.tution and the laws of the United States, which shall be made in pursuance thereof etc., shall be the supreme law of the land." The const.i.tution is absolutely the supreme law. Not so the acts of the legislature!

Such only are the law of the land as are made in pursuance of the const.i.tution.

I beg the indulgence of the committee one moment, while I read the following provision from the twenty-fifth section of the judicial act of the year 1789: "A final judgment or decree in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity, etc., may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error." Thus, as early as the year 1789, among the first acts of the government, the legislature explicitly recognized the right of a State court to declare a treaty, a statute, and an authority exercised under the United States, void, subject to the revision of the Supreme Court of the United States; and it has expressly given the final power to the Supreme Court to affirm a judgment which is against the validity, either of a treaty, statute, or an authority of the government.

I humbly trust, Mr. Chairman, that I have given abundant proofs from the nature of our government, from the language of the const.i.tution, and from legislative acknowledgment, that the judges of our courts have the power to judge and determine upon the const.i.tutionality of our laws.

Let me now suppose that, in our frame of government, the judges are a check upon the legislature; that the const.i.tution is deposited in their keeping. Will you say afterwards that their existence depends upon the legislature? That the body whom they are to check has the power to destroy them? Will you say that the const.i.tution may be taken out of their hands by a power the most to be distrusted, because the only power which could violate it with impunity? Can anything be more absurd than to admit that the judges are a check upon the legislature, and yet to contend that they exist at the will of the legislature? A check must necessarily imply a power commensurate to its end. The political body, designed to check another, must be independent of it, otherwise there can be no check.

What check can there be when the power designed to be checked can annihilate the body which is to restrain?

I go further, Mr. Chairman, and take a stronger ground. I say, in the nature of things, the dependence of the judges upon the legislature, and their right to declare the acts of the legislature void, are repugnant, and cannot exist together. The doctrine, sir, supposes two rights--first, the right of the legislature to destroy the office of the judge, and the right of the judge to vacate the act of the legislature. You have a right to abolish by a law the offices of the judges of the circuit courts; they have a right to declare the law void. It unavoidably follows, in the exercise of these rights, either that you destroy their rights, or that they destroy yours. This doctrine is not a harmless absurdity, it is a most dangerous heresy. It is a doctrine which cannot be practiced without producing not discord only, but bloodshed. If you pa.s.s the bill upon your table, the judges have a const.i.tutional right to declare it void. I hope they will have courage to exercise that right; and if, sir, I am called upon to take my side, standing acquitted in ray conscience, and before my G.o.d, of all motives but the support of the const.i.tution of my country, I shall not tremble at the consequences.

The const.i.tution may have its enemies, but I know that it has also its friends. I beg gentlemen to pause, before they take this rash step. There are many, very many, who believe, if you strike this blow, you inflict a mortal wound on the const.i.tution. There are many now willing to spill their blood to defend that const.i.tution. Are gentlemen disposed to risk the consequences? Sir, I mean no threats, I have no expectation of appalling the stout hearts of my adversaries; but if gentlemen are regardless of themselves, let them consider their wives and children, their neighbors and their friends. Will they risk civil dissension, will they hazard the welfare, will they jeopardize the peace of the country, to save a paltry sum of money, less than thirty thousand dollars?

Mr. Chairman, I am confident that the friends of this measure are not apprised of the nature of its operation, nor sensible of the mischievous consequences which are likely to attend it. Sir, the morals of your people, the peace of the country, the stability of the government, rest upon the maintenance of the independence of the judiciary. It is not of half the importance in England, that the judges should be independent of the crown, as it is with us that they should be independent of the legislature. Am I asked, would you render the judges superior to the legislature? I answer, no, but co-ordinate. Would you render them independent of the legislature? I answer, yes, independent of every power on earth, while they behave themselves well. The essential interests, the permanent welfare of society, require this independence; not, sir, on account of the judge; that is a small consideration, but on account of those between whom he is to decide. You calculate on the weaknesses of human nature, and you suffer the judge to be dependent on no one, lest he should be partial to those on whom he depends.

Justice does not exist where partiality prevails. A dependent judge cannot be impartial. Independence is, therefore, essential to the purity of your judicial tribunals.

Let it be remembered, that no power is so sensibly felt by society, as that of the judiciary. The life and property of every man is liable to be in the hands of the judges. Is it not our great interest to place our judges upon such high ground that no fear can intimidate, no hope seduce them? The present measure humbles them in the dust, it prostrates them at the feet of faction, it renders them the tools of every dominant party. It is this effect which I deprecate, it is this consequence which I deeply deplore. What does reason, what does argument avail, when party spirit presides?

Subject your bench to the influence of this spirit, and justice bids a final adieu to your tribunals. We are asked, sir, if the judges are to be independent of the people? The question presents a false and delusive view. We are all the people. We are, and as long as we enjoy our freedom, we shall be divided into parties. The true question is, shall the judiciary be permanent, or fluctuate with the tide of public opinion? I beg, I implore gentlemen to consider the magnitude and value of the principle which they are about to annihilate. If your judges are independent of political changes, they may have their preferences, but they will not enter into the spirit of party. But let their existence depend upon the support of the power of a certain set of men, and they cannot be impartial.

Justice will be trodden under foot. Your courts will lose all public confidence and respect.

The judges will be supported by their partisans, who, in their turn, will expect impunity for the wrongs and violence they commit. The spirit of party will be inflamed to madness: and the moment is not far off, when this fair country is to be desolated by a civil war.

Do not say that you render the judges dependent only on the people You make them dependent on your President. This is his measure.

The same tide of public opinion which changes a President will change the majorities in the branches of the legislature The legislature will be the instrument of his ambition, and he will have the courts as the instruments of his vengeance. He uses the legislature to remove the judges, that he may appoint creatures of his own. In effect, the powers of the government will be concentrated in the hands of one man, who will dare to act with more boldness, because he will be sheltered from responsibility. The independence of the judiciary was the felicity of our const.i.tution.

It was this principle which was to curb the fury of party on sudden changes. The first movements of power gained by a struggle are the most vindictive and intemperate. Raised above the storm it was the judiciary which was to control the fiery zeal, and to quell the fierce pa.s.sions of a victorious faction.

We are standing on the brink of that revolutionary torrent, which deluged in blood one of the fairest countries of Europe.

France had her national a.s.sembly, more numerous than, and equally popular with, our own. She had her tribunals of justice, and her juries. But the legislature and her courts were but the instruments of her destruction. Acts of proscription and sentences of banishment and death were pa.s.sed in the cabinet of a tyrant. Prostrate your judges at the feet of party, and you break down the mounds which defend you from this torrent.

I am done. I should have thanked my G.o.d for greater power to resist a measure so destructive to the peace and happiness of the country. My feeble efforts can avail nothing. But it was my duty to make them. The meditated blow is mortal, and from the moment it is struck, we may bid a final adieu to the const.i.tution.

COMMERCE AND NAVAL POWER (United States Senate, February 12th, 1810)

G.o.d has decided that the people of this country should be commercial people. You read that decree in the seacoast of seventeen hundred miles which he has given you; in the numerous navigable waters which penetrate the interior of the country; in the various ports and harbors scattered alone your sh.o.r.es; in your fisheries; in the redundant productions of your soil; and, more than all, in the enterprising and adventurous spirit of your people. It is no more a question whether the people of this country shall be allowed to plough the ocean, than it is whether they shall be permitted to plough the land. It is not in the power of this government, nor would it be if it were as strong as the most despotic upon the earth, to subdue the commercial spirit, or to destroy the commercial habits of the country. Young as we are, our tonnage and commerce surpa.s.s those of every nation upon the globe but one, and if not wasted by the deprivations to which they were exposed by their defenseless situation, and the more ruinous restrictions to which this government subjected them, it would require not many more years to have made them the greatest in the world. Is this immense wealth always to be exposed as a prey to the rapacity of freebooters? Why will you protect your citizens and their property upon land, and leave them defenseless upon the ocean? As your mercantile property increases, the prize becomes more tempting to the cupidity of foreign nations. In the course of things, the ruins and aggressions which you have experienced will multiply, nor will they be restrained while we have no appearance of a naval force.

I have always been in favor of a naval establishment--not from the unworthy motives attributed by the gentleman from Georgia to a former administration, in order to increase patronage, but from a profound conviction that the safety of the Union and the prosperity of the nation depended greatly upon its commerce, which never could be securely enjoyed without the protection of naval power. I offer, sir, abundant proof for the satisfaction of the liberal mind of that gentleman, that patronage was not formerly a motive in voting an increase in the navy, when I give now the same vote, when surely I and my friends have nothing to hope, and for myself, I thank G.o.d, nothing to wish from the patronage it may confer.

You must and will have a navy; but it is not to be created in a day, nor is it to be expected that, in its infancy, it will be able to cope, foot to foot with the full-grown vigor of the navy of England. But we are even now capable of maintaining a naval force formidable enough to threaten the British commerce, and to render this nation an object of more respect and consideration.

In another point of view, the protection of commerce has become more indispensable. The discovery is completely made, that it is from commerce that the revenue is to be drawn which is to support this government, A direct tax, a stamp act, a carriage tax, and an excise, have been tried; and I believe, sir, after the lesson which experience has given on the subject, no set of men in power will ever repeat them again, for all they are likely to produce. The burden must be pretty light upon the people of this country, or the rider is in great danger. You may be allowed to sell your back lands for some time longer, but the permanent fund for the support of this government is the imports.

If the people were willing to part with commerce, can the government dispense with it? But when it belongs equally to the interest of the people and of the government to encourage and protect it, will you not spare a few of those dollars which it brings into your treasury, to defend and protect it?

In relation to the increase of a permanent military force, a free people cannot cherish too great a jealousy. An army may wrest the power from the hands of the people, and deprive them of their liberty. It becomes us, therefore, to be extremely cautious how we augment it. But a navy of any magnitude can never threaten us with the same danger. Upon land, at this time, we have nothing--and probably, at any future time, we shall have but little--to fear from any foreign power. It is upon the ocean we meet them; it is there our collisions arise; it is there we are most feeble, most vulnerable, and most exposed; it is there by consequence, that our safety and prosperity must require an augmented force.

THOMAS F. BAYARD (1828-1898)

In 1876, when the country was in imminent danger of the renewal of civil war as a result of the contested presidential election, the conservative element of the Democratic party, advised by Mr. Tilden himself, determined to avoid anything which might result in extreme measures. The ma.s.ses of the people were excited as they had not been since the close of the Civil War, and the great majority of the Democrats of the country were undoubtedly opposed to making concessions. Thomas F. Bayard, who took the lead in the Senate as the representative of the moderate policy favored by Mr. Tilden, met the reproaches sure to be visited in such cases on the peacemaker.

Nevertheless, he advocated the Electoral Commission as a method of settling the contest, and his speech in supporting it, without doubt one of the best as it was certainly the most important of his life, paved the way for the final adoption of the bill. It is no more than justice to say that the speech is worthy of the dignity of that great occasion.

Mr. Bayard inherited the equable temperament shown by his father and his grandfather. He was a warm-hearted man with a long memory for services done him, but he had a faculty of containing himself which few men exercise to the degree that he exercised it habitually, both in his public and private life. The habit was so strong, in fact, that he indulged only on rare occasions that emotion which is necessary for the highest success as an orator. The calmness of his thought shows itself in logic which, while it may invite confidence, does not compel admiration. When he is moved, however, the freedom of his utterances from exaggeration and from that tendency to rant which mars many orations makes such periods as those with which he closes his speech on the Electoral Bill models of expression for all who wish to realize the highest possibilities of c.u.mulative force.

The son of one United States Senator, James A. Bayard, of Delaware, and the grandson of another, Mr. Bayard represented well the family tradition of integrity. Born in 1828, he succeeded to his father's place in the Senate when forty-one years of age, and remained in the public service until within a short time of his death. He was Secretary of State under the first Cleveland administration and amba.s.sador to England under the second. In the convention which nominated Mr. Cleveland in 1884, Mr. Bayard, who had been strongly supported for the Democratic presidential nomination in 1880, was so close to the presidency at the beginning of the balloting that his managers confidently expected his success. He became much attached to President Cleveland, and in 1896 he took a course on the financial issue then uppermost, which alienated many of his friends, as far as friends could be alienated by the political action of a man whose public and private life were so full of dignity, simplicity, and the qualities which result from habitual good faith.

Mr. Bayard survived almost into the twentieth century as a last representative of the colonial gentlemen who debated the Federal Const.i.tution. Supposed to be cold and unapproachable, he was really warm in his friendships, with a memory which never allowed an act of service done him to escape it. Few better men have had anything to do with the politics of the second half of the century. He died in 1898.

W. V. B.

A PLEA FOR CONCILIATION IN 1876

("Counting the Electoral Votes," United States Senate, January 24th, 1877)

Mr. President, I might have been content as a friend of this measure to allow it to go before the Senate and the country unaccompanied by any remarks of mine had it not been the pleasure of the Senate to a.s.sign me as one of the minority in this Chamber to a place upon the select committee appointed for the purpose of reporting a bill intended to meet the exigencies of the hour in relation to the electoral votes. There is for every man in a matter of such gravity his own measure of responsibility, and that measure I desire to a.s.sume. Nothing less important than the decision, into whose hands the entire executive power of this government shall be vested in the next four years, is embraced in the provisions of this bill. The election for President and Vice-President has been held, but as to the results of that election the two great political parties of the country stand opposed in serious controversy. Each party claims success for its candidate and insists that he and he alone shall be declared by the two houses of Congress ent.i.tled to exercise the executive power of this government for the next four years. The canva.s.s was prolonged and unprecedented in its excitement and even bitterness. The period of advocacy of either candidate has pa.s.sed, and the time for judgment has almost come. How shall we who purpose to make laws for others do better than to exhibit our own reverence for law and set the example here of subordination to the spirit of law?

It cannot be disguised that an issue has been sought, if not actually raised, in this country, between a settlement of this great question by sheer force and arbitrary exercise of power or by the peaceful, orderly, permanent methods of law and reason. Ours is, as we are wont to boast, a government of laws, and not of will; and we must not permit it to pa.s.s away from us by changing its nature.

"O, yet a n.o.bler task awaits thy hand, For what can war but endless war still breed?"

By this measure now before the Senate it is proposed to have a peaceful conquest over partisan animosity and lawless action, to procure a settlement grounded on reason and justice, and not upon force. Therefore, it is meant to lift this great question of determining who has been lawfully elected President and Vice-President of these United States out of the possibility of popular broils and tumult, and elevate it with all dignity to the higher atmosphere of legal and judicial decision. In such a spirit I desire to approach the consideration of the subject and shall seek to deal with it at least worthily, with a sense of public duty un.o.bstructed, I trust, by prejudice or party animosity. The truth of Lord Bacon's aphorism that "great empire and little minds go ill together," should warn us now against the obtrusion of narrow or technical views in adjusting such a question and at such a time in our country's history.

Mr. President, from the very commencement of the attempt to form the government under which we live, the apportionment of power in the executive branch and the means of choosing the chief magistrate have been the subject of the greatest difficulty. Those who founded this government and preceded us in its control had felt the hand of kingly power, and it was from the abuse of executive power that they dreaded the worst results. Therefore it was that when the Const.i.tution came to be framed that was the point upon which they met and upon which they parted, less able to agree than upon almost all others combined. A glance at the history of the convention that met at Philadelphia on the fourteenth of May, 1787, but did not organize until the twenty-fifth day of the same month, will show that three days after the convention a.s.sembled two plans of a Const.i.tution were presented, respectively, by Mr. Edmund Randolph, of Virginia, and Mr. Charles Pinckney, of South Carolina. The first proposed the election of the executive by the legislature, as the two houses were then termed, for a term of seven years, with ineligibility for re-election. The other proposed an election, but left the power to elect or the term of office in blank. Both of these features in the schemes proposed came up early for consideration, and, as I have said before, as the grave and able minds of that day approached this subject they were unable to agree, and accordingly, from time to time, the question was postponed and no advance whatever made in the settlement of the question. Indeed, so vital and wide was the difference that each attempt made during the course of the five months in which that convention was a.s.sembled only seemed to result in renewed failure. So it stood until the fourth day of September had arrived. The labors of the convention by that time had resulted in the framing of a Const.i.tution, wise and good and fairly balanced, calculated to preserve power sufficient in the government, and yet leaving that individual freedom and liberty essential for the protection of the States and their citizens. Then it was that this question, so long postponed, came up for consideration and had to be decided. As it was decided then, it appears in the Const.i.tution as submitted to the States in 1787; but an amendment of the second article was proposed in 1804, which, meeting the approval of the States, became part of the Const.i.tution.

I must be pardoned if I repeat something of what has preceded in this debate, by way of citation from the Const.i.tution of the United States, in order that we may find there our warrant for the present measure. There were difficulties of which these fathers of our government were thoroughly conscious. The very difficulties that surround the question to-day are suggested in the debates of 1800, in which the history of double returns is foretold by Mr. Pinckney in his objections to the measure then before the Senate. The very t.i.tle of that act, "A Bill Prescribing a Mode of Deciding Disputed Elections of President and Vice-President of the United States,"

will show the difficulties which they then perceived and of which they felt the future was to be so full. They made the attempt in 1800 to meet those difficulties. They did not succeed. Again and again the question came before them. In 1824 a second attempt was made at legislation. It met the approval of the Senate. It seemed to meet the approval of the Committee on the Judiciary of the House, by whom it was reported without amendment, but never was acted upon in that body, and failed to become a law. This all shows to us that there has been a postponement from generation to generation of a subject of great difficulty that we of to-day are called upon to meet under circ.u.mstances of peculiar and additional disadvantage; for while in the convention of 1787 there was a difference arising from interest, from all the infinite variances of prejudice and opinion upon subjects of local, geographical, and pecuniary interests, and making mutual concessions and patriotic considerations necessary at all times, yet they were spared the most dangerous of all feelings under which our country has suffered of late; for, amid all the perturbing causes to interfere with and distract their counsels, partisan animosity was at least unknown. There was in that day no such thing as political party in the United States:--

"Then none were for a party, But all were for the State."

Political parties were formed afterward and have grown in strength since, and to-day the troubles that afflict our country chiefly may be said to arise from the dangerous excess of party feeling in our councils.

But I propose to refer to the condition of the law and the Const.i.tution as we now find it. The second article of the first section of the Const.i.tution provides for the vesting of the executive power in the President and also for the election of a Vice-President. First it provides that "each State" shall, through its legislature, appoint the number of electors to which it is ent.i.tled, which shall be the number of its Representatives in Congress and its Senators combined. The power there is to the State to appoint. The grant is as complete and perfect that the State shall have that power as is another clause of the Const.i.tution giving to "each State" the power to be represented by the Senators in this branch of Congress. There is given to the electors prescribed duties, which I will read:--

The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves: they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.

Then follows the duty and power of Congress in connection with this subject to determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. The next clause provides for the qualifications of the candidates for the presidency and vice-presidency. The next clause gives power to the Congress of the United States to provide for filling the office of President and Vice-President in the event of the death, resignation, or inability of the inc.u.mbents to vest the powers and duties of the said office.

The other clause empowers Congress thus to designate a temporary President. The other clauses simply relate to the compensation of the President and the oath he shall take to perform the duties of the office. Connected with that delegation of power is to be considered the eighth section of the first article which gives to the Congress of the United States power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Const.i.tution in the government of the United States, or in any department or officer thereof."

It will be observed, so far, that the Const.i.tution has provided the power but has not provided the regulations for carrying that power into effect. The Supreme Court of the United States sixty-odd years ago defined so well the character of that power and the method of its use that I will quote it from the first volume of _Wheaton's Reports, page 326:_

Leaving it to the legislature from time to time to adopt its own means to effectuate, legitimate, and mold and model the exercise of its powers as its own wisdom and public interest should require.