case, however, there is no need of presumptive evidence; for the fact exists, that the Convention not only reserved, but exercised the pow. er, leaving nothing to be appropriated by the General Assembly exexcept what was specially delegated. The effect of this bill would be to give us two Supreme Courts, in direct conflict with each other; one created by the Constitution, deriving its power and jurisdiction from that instrument, the other created by the General Assembly, and deriving its power and jurisdiction from that body. But the 13th Section attempts to disembarrass the question, by repealing the law of 1851, organizing the Supreme Court ; supposing, that the Justices elected under the provisions of the Constitution, would be thereby removed from office, in which event, the Legislative Justices would be enabled to get possession of the Constiutional tribunal. Suppose this could be done, would a Court Constitutionally created, and unconstitutionally supplied with Justices, be a Court capable of action? The tribunal itself can adjudicate nothing, and however ample its powers or jurisdiction, if there are no officers to exercise these powers, they must remain in a state of inaction. Nor would the usurpation of these powers by unauthorized parties relieve the matter. It is conceded that the powers vested in, and jurisdiction conferred upon the Supreme Court are ample for all purposes. Now suppose that the Constitutionally elected Justices should all die, resign, or be removed, and circumstances prevented their places from being supplied for a length of time; would the fact that the most ample powers have been conferred upon the appellate tribunal, authorize the General Assembly to take possession of that tribunal, and exercise its powers? Certainly not. Then, if on the removal of the Justices, the General Assembly cannot take possession of the tribunal, and exercise its powers, can it confer authority upon another party to do so? Or can a body confer upon its agent, powers which it does not itself possess? I think not. To show the danger of conceding the power claimed, by this bill for the General Assembly, I will offer an illustration taken from the legislative department of the government. The 13th Section of the 4th Article of the Constitution provides that " the General Assembly shall make provision by law for filling vacancies that may occur in either House by death, resignation, or otherwise, of any of its members." In obedience to this mandate, the General Assembly passed a law authorizing the qualified electors of the County, or senatorial district, in which such vacancy might exist, to fill it by election.Now suppose that on the fourth Monday in the present month, it should be found that nine new Senators are occupying seats upon the floor of the Senate Chamber, elected by the people, to supply : : : : nine vacancies caused by resignations since the adjournment in January last. Suppose these wine Senators should be personally or politically disagreeable to the remaining ten, and they, in concurrence with a majority of one in the other House, repeal the law under which the people had elected these Senators. Would such repeal vacate their seats, by removing them from office? I suppose not; and for the simple reason that they would not be the officers or agents of the Legislature, but of the people, and holding their offices by a Constitutional tenure. But by way of making the case more strikingly analogous, let us suppose the General Assembly not only undertakes to remove the nine Senators by repealing the election law, but that it proceeds to confer senatorial powers, and devolve senatorial duties upon nine members of the House of Representatives.These Representatives were constitutionally elected by the people, as much so, as the dismissed Senators, but like the Circuit Court Judges, they were elected to a different station. Now I ask whether the General Assembly would feel authorized, either to remove the Senators or to manufacture their successors out of Representatives? If it would not, then on what grounds does it undertake to remove Justices of the Supreme Court, and appoint their successors from the Circuit Judges? But would the Justices be removed by repealing the law? This is a point worthy of investigation. The Act is based upon the second Section of the fifth Article of the Constitution, which confers upon the General Assembly power to "prescribe" for the Supreme Court "restrictions and regulations not repugnant to this Constitution." Under this authority, the General Assembly organized the Court, restricting the number of Justices to three, and their salaries to the minimum fixed by the Constitution. The other portions of the law relate only to the duties of the Court-the times and places at which it should hold its sessions, and comprise the necessary "regulations." The section fixing the number of Justices and providing for their election, is the only one pertinent to this inquiry.That section provides that the Justices shall be "elected according to the provisions of the Constitution." Now what were the "provisions of the Constitution" under which the present Justices were elected? They were that the Justices should be elected by the qualified electors, voting by general ticket, and for the term of six years. They were elected in accordance with those provisions, and so far as they are concerned, the law has been executed, and has passed beyond the control of the General Assembly. The bill under consideration seeks to limit the term of the present Justices to two years or less, but I humbly conceive that such a "restriction" would be "repugnant to the Constitution," and therefore void. But sup pose it could restrict, the effect would be to remove the Justices and render their seats vacant, and in such case the Constitution fixes the manner in which they are to be supplied. Section four of the amendment of 1853, provides "That should a vacancy occur in either the Supreme, Chancery, or Circuit Courts, by death, resignation, removal or otherwise, it shall be the duty of the Governor to issue a writ of election to fill such vacancy," &c., and further "Provided however, That should it become necessary to fill any such vacancy before an election can be held under the provisions of this Constitution, the Governor shall have power to fill such vacancy by appointment," &c. Now if the power either to fill the vacancy, or to provide for an election for that purpose, has been specially conferred upon the Governor, then the second Section of the Second Article of the Constitution expressly prohibits the General Assembly from exercising it. It provides as follows: "No person or collection of persons, being of one of those departments, (Legislative, Executive or Judicial,) shall exercise any power properly belonging to either of the others, except in the instances expressly provided in this Constitution." As this is not one of the "instances expressly provided" for, it is apparent that even admitting the power of the General Assembly to remove the Justices, they could not supply their places, for that duty has been expressly assigned to the Executive. But if it is true, that the grant of a part of any particular power operates as a special reservation of the balance, then on the subject of the removal and appointment of Justices, the General Assembly is expressly prohibited by the Constitution itself. The 19th Section of the 6th Article requires that "The General Assembly shall by law provide for the appointment or election, and the removal from office of all officers, civil and military, in this State, not provided for in this Constitution." Having already shown fully, that the Constitution does provide for the election of Justices of the Supreme Court, it is hardly necessary to enlarge the argument to show that under this 19th Section, the General Assembly is prohibited from exercising that power. Let us now see whether the Constitution has made provision for their removal. The 20th Section of the 6th Article provides that "the power of impeachment shall be vested in the House of Representatives." The 21st Section provides that "All impeachments shall be tried by the Senate; and when setting for that purpose, the Senators shall be upon oath or affirmation, and no person shall be convicted, without the concurrence of two-thirds of the members present." The 22d Section provides that the Governor and all civil officers shall be liable to impeachment for any misdemeanor in office." The 12th Section of the fifth Article provides as follows: "And for wilful neglect of duty, or other reasonable cause, which shall not be sufficient ground for impeachment, the Governor shall remove any of them, (the Judges or Justices,) on the address of two thirds of each House of the General Assembly; provided, however, the cause or causes shall be stated at length in such address, and entered on the journals of each House; and provided further, that the cause or causes, shall be notified to the Judge so intended to be removed, and he shall be admitted to a hearing, in his own defence, before any vote for such address shall pass; and in such cases, the vote shall be taken by yeas and nays and entered on the journals of each House respectively." These sections provide fully for the removal of Judges and Justices, and therefore, the General Assembly is prohibited by the 19th Section of the 6th Article from providing for such a service. This, however, does not prevent it from discharging the duty assigned it, as the agent of the Convention, in the removal of those officers by address or impeachment. The House of Representatives possesses, under the Constitution, the impeaching power, and the Senate is authorized to organize, under a special oath, as a high Court, to try the impeachment, and if two thirds of its members concur in a verdict against an impeached Judge or Justice, he is removed. And for offences insufficient to justify impeachment, the Judge or Justice may be removed by the Governor, upon the address of two thirds of both houses. But it must be remarked that no address can ever be voted on, until the Judge or Justice is notified of the charges preferred against him, and an opportunity offered him to be heard in his own defence. Until this is done, there is no power in either, or both houses, nor in both, united with the Governor, to displace a Judge or Justice. The right to be heard before he is condemned, is guaranteed by our Constitution to the vilest culprit that has ever darkened the records of our courts, and should certainly never be denied to those in whom the people have reposed the highest trust. The bill under consideration seeks to remove the whole bench of Justices, without prefering a single charge-without giving them notice-without hearing them in their own defence-without organizing a Senatorial Court-without an address to the Governor-without a two third vote, ard by the repealing clause of a simple act of legislation, requiring for its passage only a majority of a bare quorum in each house. Is such the agency which the Constitution has conferred upon the General Assembly? But suppose I am mistaken in the whole matter, and that notwithstanding all the Constitutional provisions against it, the General As sembly may, by repealing the law, remove the Justices, and may appoint others to perform their duties. I would then respectfully ask, would it be good policy to do so? If this General Assembly should repeal the law and remove the Justices, the next would probably re-organize the Court, and order another election "in accordance with the provisions of the Constitution." If the Justices then elec ted by the people, should be disagreeable to the succeeding General Assembly, the organic law would again be repealed, and the Jus tices displaced, and so on ad infinitem. Such a policy would divest the Court of that dignity and elevation which should characterize such a tribunal-would put it into the arena of every political contest, and would secure for the bench the services of groveling partiUnder such circumstances, our Judiciary would of course occupy a very humble position-our reports would be quoted only to be ridiculed, and our noble State would acquire a most unenviable reputation for stability of purpose. sans. But suppose the General Assembly may Constitutionally do all that the bill undertakes to do, and that no such unfavorable result as I have apprehended would follow; what advantage should we probably derive from the change? So far as the question of expense is concerned, the saving would be small. The salaries of the present Justices amount to six thousand dollars. The allowance made in the bill, of a per diem and mileage, with the expenses of an additional Court, would not be less than five thousand dollars; showing that as a purely financial question the saving to the treasury would be about one thousand dollars per annum. But can the Circuit Judges discharge their duties, and hold five sessions of the Supreme Court at points remote from each other? Our population is rapidly increasing, and we shall be peculiarly fortunate if our littigation does not increase with it. Aside from this, we have in our State vast amounts of property, under mortgage to insolvent Banking institutions, whose charters are soon to expire, and out of this will doubtless grow an amount of Chancery business, which will give both Judges and Justices a large amount of additional employment. But claiming nothing for this prospective increase, let us make a calculation upon the basis of the present business. The Justices have been actively employed for four months of the present year, in holding their Courts, and in traveling to and from the places fixed by law for their sessions. If their successors under this bill should be so fortunate as to hold five Courts in the same length of time, then they would each devote four months in the year to Supreme Court duties. Add to these the months of August and September, in which it is ordinarily impracticable to hold Courts of any : : : |
