1802.
THE JUDICIARY DEBATE.
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charge of monarchical tendencies. On the constitutional point involved in the Bill before the House, Bayard was equally distinct:—
- "The point on which I rely is that you can do no act which impairs the independence of a judge. When gentlemen assert that the office may be vacated notwithstanding the incumbency of a judge, do they consider that they beg the very point which is in controversy? The office cannot be vacated without violating the express provision of the Constitution in relation to the tenure. . . . The second plain, unequivocal provision on this subject is that the compensation of the judge shall not be diminished during the time he continues in office. This provision is directly levelled at the power of the legislature: they alone could reduce the salary. Could this provision have any other design than to place the judge out of the power of Congress? You cannot reduce a part of the compensation, but you may extinguish the whole. What is the sum of this notable reasoning? You cannot remove the judge from the office, but you may take the office from the judge; you cannot take the compensation from the judge, but you may separate the judge from the compensation. If your Constitution cannot resist reasoning like this, then indeed it is waste paper."
When Bayard reached Giles's favorite doctrine that patronage was a Federalist system, and the charge that two senators who voted for the Judiciary Act of 1801 were rewarded by the offices vacated in consequence of promotions to circuit judgeships, he produced a true oratorical sensation by a retort that sank deep into the public memory:—
