Selected Works of
R. Carter Pittman
Georgia Bar Journal, Vol. 16, p. 148, and the
Federation of Insurance Counsel Journal of December 1953.
Its Colonial and Constitutional History
By R. Carter Pittman
at its 1953 Convention held at the Bedford Springs Hotel, Bedford, Pennsylvania, August 19-22, 1953.
NE of the great American tragedies of the twentieth century is our ignorance as to the foundations of American government. The prevalence of such ignorance among law school professors, and hence many judges, is appalling. Our children graduate from the law schools of this nation knowing nothing of the legal institutions, the legal principles and the customary law that grew out of American experiences between the first settlements of this continent around 1620 and the achievement of our independence at the American Revolution more than 150 years later. The foundation stones of our freedom have become as discarded rubble.
As a member of the Board of Bar Examiners of the State of Georgia I read the papers of graduates from many leading law schools of the nation. More than eighty-five per cent of those graduates are failing questions that relate to fundamental principles of constitutional government in America. Our helpless children are being taught the philosophy of judges -- not fundamentals of American government. The case method of instruction has completely fallen down in the area of constitutionalism.
Can it be true that our ancestors, who fled from old world tyranny to settle this continent and who lived under laws and institutions of their own making developed in their assemblies, courts and customs over a period of 150 years, were so devoid of wisdom and virtue as not to leave to us a heritage worth notice or preserving? Can it be true that our forebears were able to spawn such men as George Mason, Gouverneur Morris, George Washington, John Adams, Patrick Henry, Thomas Jefferson, John Hancock, Samuel Adams, Benjamin Franklin, James Madison, Alexander Hamilton and hundreds of such others, yet were not able to evolve legal principles and governmental institutions upon which we may look with pride, with profit?
We are taught that our forefathers had great sexual potency, but that they had great intellectual sterility in the fields of government and law; that America has no constitutional or legal history back of 1776; that there was a hiatus of 150 years, and that we must look back to laws and institutions developed in the Parliament and in the courts, customs and Privy Council of a little island 3,000 miles from American shores, during that one and one-half centuries.
A law library containing 150,000 volumes tells us nothing of consequence about the early growth of constitutional liberty, or the growth of law and legal institutions in our own native land. In it is to be found the ancient legal records of every civilization -- except our own.
One of the areas in which little of consequence has been written, either fair or foul, is that relating to the colonial and constitutional history of our judicial branches of government, state and federal; the emancipation of judges and elevation of the judiciary to the position of supremacy. Maybe some charitable foundation built by the fruits of American industry will some day be dedicated to a noble cause and the job correctly done.
The great American universities, supported by the fruits of American industry, expend millions on socialistic research projects, but spend nothing on projects designed to find and nourish the roots of constitutional liberty in America.
But for some really great teachers I know, and the poor teacher that I once was, I would be tempted to say with Aristotle: "Schoolmasters are the apes of tyranny."
Men side with their passions against their reason, and their sinister interests have so strong a bias upon their minds, that they lean to them against the good of the things they know. . . .
George Mason's Virginia Bill of Rights of June 12, 1776, has, as its 15th paragraph, the following:
That no free Government, or the Blessing of Liberty, can be preserved to any People but by a firm Adherence to Justice, Moderation, Temperance, Frugality, and Virtue, and by frequent Recurrence to fundamental Principles.
Wisdom and virtue are no longer "propagated by a virtuous education of youth" in America. We no longer adhere to "justice, moderation, temperance, frugality, and virtue." It is infrequent indeed that we recur to "fundamental principles." As a result "free government, and the blessing of liberty" is not being preserved in America and the history we now make is not an honored history.
In all the historic struggles against despotism and the abuse of power, historical minded men have been in the forefront. The common law is but the filtered essence of history. It has been lawyers, principally, who have found the precedents against power and in behalf of human liberty and dignity in all ages past. Constitutional liberty has always stood in need of historical and legal precedents and always will. As Jefferson said, "One precedent for power is worth a hundred for liberty." In fact, power needs no precedent. All it needs is servile judges.
Charles I pursued Cotton because he furnished Pym and other English patriots with precedents before and during the Puritan Revolution. George III marked Samuel Adams, John Hancock, James Otis, William Henry Drayton and others for the halter because they furnished American patriots with precedents leading to the American Revolution. We would be remiss if we did not here mention the name of the master of them all, who was not a lawyer -- he was George Mason of Gunston Hall.(2) It was his precedents that kept a fire burning under Washington and Jefferson. It was his precedents that saved all the territory north of the Ohio River from British dominion after the Revolution. He knew history. History is the great precedent. Historical research is the natural guardian of constitutional liberty.
Without exception, despotic rulers have excluded instruction in history from any plan of general education, or they have sought to make history books a mere aggregation of lies. They have sought to substitute abstract thinking, or "new philosophies," for the stark realities that are cried out by history's prophetic voice. They have always sought to substitute the worship of man for the worship of institutions and the worship of God. Need we be reminded of Caesar, Napoleon, Hitler, Mussolini, Stalin or Peron?
Philosophers have usually thrived in the midst of tryannies.
Those who have urged historic precedents in defense of practical liberty have always been the ones to be led off to knives and halters. Vane, Sidney and Lilburne refused to sit upon the extraordinary court that sentenced Charles I to be beheaded, because there was no precedent for such a court. They urged that if it could be used to execute a king, it might be used to execute subjects. The successors of Charles I sent Vane and Sidney to the same block because they urged that there was no precedent for their assumption of despotic power. Lilburne lived long in prison and went to his grave with a thousand scars, inflicted by irregular courts, because he consistently urged the same precedents for subjects that he urged against the extraordinary tribunal that tried Charles I. To illustrate the shocking indifference to the truths of history in America today, we cite a painful example :
The staff of Editors of Life Magazine issued a publication in 1951 entitled "Life's Picture History of Western Man." On page 288, this book speaks of the Constitutional Convention of 1787, saying :
The delegates were fortunate in two respects. First, there were among them several great men -- notably Adams, Hamilton and Madison -- who not only believed in the Declaration (meaning the Declaration of Independence) but had taught themselves to know more about political philosophy than any men of their time.
In the next paragraph, Life's Editors described the limitations of powers re-enforced by "Jefferson's Bill of Rights." In the same paragraph it was stated that Jefferson "aimed to give The Supreme Court a democratic bent by making it the guardian of his Bill of Rights." They then gave John Locke credit for Jefferson's "pursuit of happiness" phrase.
(1) John Adams did not attend the Constitutional Convention. He was in England. (2) Jefferson never wrote a single provision of any Constitution or Bill of Rights that has ever been adopted in America except a sterile preamble to the Constitution of Virginia of 1776. He never sat in a Constitutional Convention in his life. (3) He formulated his preamble to the Declaration of Independence, containing "the pursuit of happiness" phrase from George Mason's Virginia Bill of Rights, adopted June 12, 1776, and John Locke had nothing to do with it. (4) The only connection Jefferson ever had with the Federal Bill of Rights was that he wrote letters from France, and used his influence upon returning, for the adoption of the Bill of Rights that George Mason prepared in Richmond in 1788, which was much like his Virginia Bill of Rights of 1776. (5) Furthermore, "political philosophy" played no respectable part in the framing of our Constitution. Experience was the guide. John Dickinson expressed the idea well on August 13, 1787, on the floor of the Constitutional Convention, when he said: "Experience must be our only guide. Reason may mislead us."
There was only one philosopher in the Constitutional Convention of 1787. His name was Benjamin Franklin -- one of the least influential men there. It has been noticed by several students of the Convention that he seemed to be the proponent of more rejected proposals than any other delegate.(3)
If the Editors of a great publication such as Life Magazine pay such homage to philosophy and falsehood, how can we expect our children to know the historic truths that made and kept our ancestors free?
The framers of our constitutions of government filtered liberty preserving provisions from all history, and largely American history. Those provisions that vouchsafed to us our freedom and dignity were the distilled essence of history's bitter fruits, gathered from its gardens of Gethsemane.
Had theorists taken over in Philadelphia we would likely have had another Constitution such as the philosopher John Locke wrote for the Carolinas 100 years earlier. It robbed man of all dignity and left him the pathetic victim of despotic power. It was the worst constitution in the history of the Anglo-Saxon race and died in childhood from congenital deformities.
If we search the history of every other country except our own, and all of the writings of philosophers, we will find no precedent for the distinctly American doctrine of judicial supremacy. England emancipated her judges in her Act of Settlement of 1701. The struggle to accomplish the same thing in America dates back to the first settlements here. We have dealt with that subject fragmentarily in another place.(4) England has never known judicial supremacy. She has never had a "supreme" court.
The cardinal contribution of the American experience to the science of government was the separation of the judiciary from the executive and legislative and its elevation to supremacy in our constitutional scheme of government.
The development of judicial supremacy has a long and honored history in the American colonies and in the American states prior to 1787. Many decades before our Revolutionary patriots were born many American colonial judges were standing upon the outer wall, using every feeble weapon at hand to shield our forefathers from the usurpations and abuse of power by kings and commons, by colonial governors and assemblies. It is that American experience that has given to us our great measure of freedom. Without an emancipated and supreme judiciary to guard liberty against ever encroaching power, there can be no liberty. America learned that truth in the harsh school of experience. .
Of the many cases that lie in the background of that American principle of government, we here discuss only one, and briefly refer to another that grew out of it.
The case of "William Cosby, Esq. Captain, General, and Governor in Chief, of the Provinces of New-York, New Jersie, and Territories thereon depending in America, Vice Admiral of the same, and Collonel in his Majesties Army, &c. vs. Van Dam, Lt. Gov. of New York and New Jersey" (l733),(5) was one in which Chief Justice Lewis Morris of New York held a servile court of exchequer, with an equity side, set up by Cosby under authority granted in instructions from the king, to be unconstitutional, in violation of the fundamental charter of the Colony of New York and the fundamental laws of England.
In Crown colonies a Lieutenant Governor served as Governor during the absence of a Governor. Many of the Governors were mere sinecures and habitually resided in England for months and years. When doing so they were entitled, under the King's instructions and proclamations, to draw one-half of the salary and perquisites of government, while the Lieutenant Governor, who was in America doing all of the work, should draw the other half of the salary and perquisites. The salary in New York came from the pockets of the people and was appropriated by the Assembly for services -- not sinecures. Lt. Gov. Van Dam drew all of the salary and perquisites in the absence of Cosby. When Cosby arrived and took over the reins of government in the Colony of New York, he demanded one-half of the salary and perquisites from Van Dam. Van Dam refused to pay and asserted a counterclaim. Cosby, realizing that he could not win his case against Van Dam before a jury in an impartial court of justice, fired off a proclamation in which he set up a "Court of Exchequer with an equity side," in order that his case against Van Dam might be tried both as to law and facts before judges who held their offices at his pleasure and that of the King. He then had his Majesties Attorney General bring suit in that court for the sums claimed to be due to him. (Any likeness of this new invention of the 1730's to federal NLRB's or WXYZ's of the I930's is purely coincidental.)
The matter came before the Supreme Court, composed of Chief Justice Lewis Morris and Justices DeLancey and Phillips on April 9, 1733. The matter had been pending for argument since February 1st and Chief Justice Morris had already thoroughly briefed, analyzed and digested the questions of constitutional law involved in the case. After argument on April 9th he pulled from his pocket his written opinion holding the court to be unconstitutional. That opinion consists of 15 closely printed pages. It is a great milestone in the history of judicial supremacy and American freedom. The last sentence of it was as follows:
"I take it, the giving of a new Jurisdiction in Equity by Letters Patent to an old Court, that never had such Jurisdiction before, or Erecting a new court of Equity by Letters Patent or Ordinance of the Governour and Council, without Assent of the Legislature, are equally unlawful, and not a sufficient Warrant to justify this Court to proceed in a Court of Equity. And therefore by the Grace of God, I, as Chief Justice of this Province, shall not pay any Obedience to them in that Point."
Governor Cosby immediately demanded that Chief Justice Morris give to him a copy of his opinion. The Judge not only accommodated the Governor but gave a copy to the poor printer, John Peter Zenger. To the opinion he added a note, in part, as follows:
If Judges are to be intimidated so as not to dare to give any Opinion but what is pleasing to a Governour, and agreeable to his private Views the People of this Province, who are verry much concern'd both with Respect to their lives and Fortunes in the Freedom and Independency of those who are to Judge of them, may possibly not think themselves so secure in either of them as the Laws and his Majestie intends they should be . . .
As Morris expected, he was promptly dismissed as Chief Justice of New York, and retired to a private station.
Cosby had his case reopened by Judge DeLancey, the pliant tool that succeeded Morris as Chief Justice, who, according to Cosby, rendered a "hansome"(6) opinion in his favor, but he never collected. That ended Cosby's "Court of Exchequer with an equity side."(7)
In 1766 Thomas Pownall, former Governor of Massachusetts Bay, South Carolina and New Jersey, wrote a book entitled The Administration of the Colonies which he dedicated to the instruction of the Right Honorable George Grenville, First Lord of the Treasury and Chancellor of the Exchequer in England, in which he said:(8)
The crown directs its governor to erect courts and appoint the judges thereto. -- The actual appointment of the judges is no where directly disputed. -- But the power of erecting courts, according to this instruction, is, I, believe, universally disputed; it being a maxim universally maintained by the Colonists, that no court can be erected but by act of legislature.
Thus it appears that the decision of Chief Justice Lewis Morris in 1733 was in accord with "a maxim universally maintained by the colonists" that executive power could not erect and maintain any tribunal as a tool of executive power.
Zenger not only published Morris's opinion, but published many political phillippics furnished to him by Judge Morris after his dismissal. One of the articles contained the following words:
WE SEE MENS DEEDS DESTROYED, JUDGES ARBITRARILY DISPLACED, NEW COURTS ERECTED WITHOUT CONSENT OF THE LEGISLATURE BY WHICH IT SEEMS TO ME, TRIALS BY JURIES ARE TAKEN AWAY WHEN A GOVERNOR PLEASES . . . WHO IS THEN IN THAT PROVINCE THAT CAN CALL ANYTHING HIS OWN, OR ENJOY ANY LIBERTY LONGER THAN THOSE IN THE ADMINISTRATION WILL CONDESCEND TO LET THEM DO IT, . . .(9) [Capitalized as in the Information against Zenger].
The foregoing "libel" against Cosby was the principal basis for the Information filed against John Peter Zenger for criminal libel, in 1734, after a grand jury (one of whom by a strange quirk of irony was an ancestor of Franklin D. Roosevelt) refused to indict. Zenger was imprisoned for many months awaiting trial.
On his trial before a jury represented by Andrew Hamilton of Philadelphia (after his local attorneys Smith and Alexander were disbarred for filing a plea urging the disqualification of the successors of Chief Justice Morris by reason of their dependence on the Governor for tenure), the jury, in violation of the positive instructions of the servile judges, acquitted Zenger.(10)
That case was a sequel to the Van Dam case. The two cases went far toward establishing freedom of the judiciary, freedom of the juries and freedom of the press in America.
Later Morris was restored to the good graces of the throne and was appointed Governor of New Jersey. One of his first acts in 1738 was to violate an instruction from his king, and grant tenure to the judges of New Jersey "during good behavior."
Upon the automatic termination of those tenures at the death of George II, Governor Hardy renewed them. One of those judges was Chief Justice John Hunter Morris, son of Lewis Morris. Governor Hardy was removed from his office by George III for renewing those judges' commissions in the exact form originally granted by Lewis Morris. This was done in spite of the fact that Parliament at the suggestion of George III had just passed an Act extending judicial tenures in England without respect to the death of kings.
Lewis Morris II, a son of the old Chief Justice, had engaged Andrew Hamilton to defend Zenger. Lewis Morris III, son of Lewis II and grandson of the old Chief Justice, helped to write the bitter experiences of his grandfather into the Declaration of Independence, which he signed. Gouverneur Morris, son of Lewis II and grandson of the old Chief Justice, helped to write the same experiences into the United States Constitution in the Convention of 1787. On the floor of the Convention and on the Committee of Style he helped to establish a federal judiciary that was emancipated from control by either the executive or the legislative, and gave to it all of the "judicial power of the United States" so that never again should the American people be ruled by any tribunals composed of servile executive tools such as now judge the American people under specious alphabetical titles.
Reminiscing, after a long and fruitful life, Gouverneur Morris once said:
Gouverneur Morris was too modest. "The morning star of that liberty which subsequently revolutionized America" was the colonial grandfather who stood upon the outer walls and pronounced a judgment, the effect of which was to set into the bedrock of American history the doctrine that judicial power may stop arbitrary power in its tracks with judgment; that law is bigger than men.
Is it any wonder that Gouverneur Morris believed in judicial supremacy and the emancipation of those who should exercise powers of such a judiciary?
From the beginning of the reign of George III in the year 1761 to the year 1773, the Supreme Courts of Rhode Island, Connecticut, New York, Pennsylvania, Maryland, East Florida, Georgia, South Carolina and Virginia refused to grant writs of assistance on the ground that such writs were "unconstitutional." Massachusetts and New Hampshire alone furnish the judicial tools of executive power for breaking open the castles and cottages of our forefathers in the nighttime.(12)
James Otis is the only known lawyer in colonial America that ever lost a writ of assistance case before an American colonial court. All of the other American colonial lawyers prior to 1773 won their cases, so far as we have been able to find. Find the name of one of them in a history book.
Scores of American colonial judges who refused to grant writs of assistance were removed from their judgeships and were replaced by servile tools of tyranny during the ten years immediately preceding the American Revolution.
George III and his ministers could find no instance in all recorded history where people had been robbed of their liberties in any other manner than through the instrumentality of servile judges or the sword. Common sense told them that the colonial judiciary in America had to be remodeled. History told him that people are free only as their judges are free. Towers had to come down and tools had to go up. Up they went!
Without exception, the American States, in their constitutions, most of them framed in the midst of revolution, took judges off the executive team. Ten of them put them behind the plate as impartial umpires to call the strikes as they saw them in governments of law. Georgia alone put the judges on the legislative team.(13)
In the Declaration of Independence we may read the echo: "he has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries."
The Declaration of Independence merely attempted to catalogue the "long train of abuses and usurpations" leading to "absolute despotism" that started with the coronation of George III. That was ample to justify revolution, but was not ample to explain the principles of the new governments.
It was to destroy a government of men and to re-establish a government of law that our forefathers mutually pledged to each other their lives, their fortunes and their sacred honor.
Between the close of the Revolution and the end of the Constitutional Convention of 1787 the Supreme Courts of New Jersey, Virginia, the Mayors Court of New York City, the Supreme Court of Rhode Island, the Supreme Court of North Carolina and the Supreme Court of New Hampshire demonstrated judicial supremacy and independence to declare legislative acts unconstitutional.(14)
The American tradition lived on. Judicial supremacy was not established in Philadelphia - it was constitutionalized there. The fruits of sanguinary struggles in America's yesterdays were safely preserved in the Constitution for its tomorrows. The crippled colonial judicial institution that had been stricken down by George III, because it tried to guard liberty and repel usurped powers, was rejuvenated and exalted to the highest position ever attained by a judiciary in all the annals of time, that it might forever stand on the outer walls and guard life, liberty and property from violation or confiscation, by whatever hands.
The constitutional debates in Philadelphia and in the various ratifying conventions conclusively reveal that the framers meant exactly what they said when they left the Congress powerless to legislate except in subordination to the Constitution, and yet extended the judicial power to every case or controversy that might arise under the Constitution. Not a single member of the Constitutional Convention of 1787 ever claimed in convention, that the courts were not made the guardians of the Constitution with power to strike down legislative acts, proclamations and decrees, from whatever source, that contravened that document. A few insignificant members of the convention opposed the power but not one denied the existence of that power.(16)
The only criticism of the provisions giving independency to the judges who should preside over the courts, was that they didn't go far enough. In Philadelphia and in the ratifying conventions it was strenuously urged that there should be no increase or decrease of salaries of judges while in office. A "parity" plan of flexible salaries was proposed to compensate for the rise and fall of the value of money, but was finally rejected in Philadelphia as impractical.
Not only did the Constitution make the federal courts guardians of the Constitution but the very last article of the Constitution authorized and commanded the judges of the courts of the various states to maintain the integrity of the Constitution. The very last paragraph of Article VI makes it a condition precedent to the assumption of office by any judicial officer of the United States or of the several states that he first be bound by oath or affirmation to "support this Constitution."
The very first act passed by the 1st Congress and approved by Washington on June 1, 1789, prescribed that solemn oath as required by the Constitution.(17) The new government couldn't move a further step until that oath had been taken. The idea that the Constitution imposes an oath that cannot be obeyed is revolting to every man except a theorist. How may a judicial officer "support" the Constitution except by judgment?
Against a background of English history the case of Marbury v. Madison, 5 U.S. 137, might be considered revolutionary, but this is America. Against the background of American history and the Constitution that grew out of it, that decision was juvenile, commonplace, and humdrum. That we should be taught that John Marshall was a new Columbus charting an unknown sea, is a reflection upon the intelligence and learning of the teacher. The only thing remarkable about that case is the fact that we consider it so, unless we consider how remarkable it was that Marshall lacked the courage of his forefathers for a frontal assault, and tiptoed to his goal through a side door.
Article X of the Bill of Rights reserves to the States and to the people every legislative, executive and judicial power not delegated to the respective branches of the federal government by the Constitution. On June 8, 1789, James Madison, while urging the adoption of our Bill of Rights on the floor of Congress, said:
If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.
Madison's prophecy held true for nearly 150 years. It holds true no more. What happened gradually in America during the last twenty years, happened suddenly in Italy, Germany, Russia and Argentina within our own memory. The stability of every free government rests upon the stability of its institutions of justice. We find that truth demonstrated in the rise and fall of all free governments. Those who successfully strike down free governments always strike at the institutions of impartial justice first. When they fall it is in the long shadows of a setting sun. No philosopher ever mastered that subject so well as did Karl Marx. We built by the blueprint of our fathers. We destroy by the blueprint of Karl Marx. Marx teaches in Das Kapital that independent tribunals of justice are impenetrable bulwarks that must be rendered dependent or by-passed with pliant class courts for the "class struggle." A few days ago American newspapers carried a story about a manufacturer that was fined, $2,000,000.00 because it divorced a union and moved to another climate for its health. The "judge" who imposed the fine was probably an "expert" who became such by changing his title from "ribbon clerk" for a bargain store to "Examiner" for a class court. No, it didn't happen in Russia! It happened in America! Twenty-five years ago the lawyers in America would have risen in arms at such a thing. They are now callous to it. Instead of killing we now domesticate skunks.
The United States Constitution is the oldest written constitution in the world today. The average age of all of the constitutions of the nations of the earth this day is less than 25 years.(18) The secret of the longevity of the American Constitution lies in the principle of judicial supremacy. Without it, Constitutions are mere parchments.
The life expectancy of the constitutions of this world, that do not establish judicial supremacy, is less than that of a frail and sickly child. Ours too will pass. It is in crisis now and we fail to recognize it.
Quasi-judicial and "class" tribunals now operate out of Washington, D.C. by the scores. Their judges or "members" are dependent upon the president for their tenure and upon the Congress for their pay. They are mere tools of power. Yet they exercise a part of "the judicial power of the United States" in violating the plain, unambiguous words of the Tribunal Clause of Article I and the provisions of Article III of the Constitution. The principle of independency and supremacy is fast becoming just a faded inscription upon an abandoned and forgotten tomb.
For want of that "chief pillar;" for want of separation of powers, making the judiciary a "pillar" rather than a tool, the life blood of the innocent, the brave and the good of every race has discolored all the annals of time. For lack of such a "pillar" on which to build and anchor governments, life, liberty, property and happiness ebb and flow with tides and perish in swells.
The Constitution of the United States gives to Congress the power "to constitute tribunals inferior to the Supreme Court." Article III then vests "the judicial power of the United States in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish" under the power granted by the Tribunal Clause. "The judges, both of the Supreme and inferior courts" created under the Tribunal Clause, "shall hold their offices during good behavior" and shall receive undiminishable pay. Like the Ten Commandments, those provisions of our Constitution leave nothing to construction -- but they leave all to depravity.
The Supreme Court has several times defended the provisions of Section I of Article III of the Constitution against assaults made upon the purses of judges. In Evans v. Gore, 253 U.S. 245, the court did much research, and came up with the doctrine that a cardinal purpose for nonprecarious tenure and pay for judges was to relieve judges of their duty to bear their pro rata share of the tax burdens of their country.
When and where has the court defended nonprecarious tenure and pay in order to protect the purses and liberties of the people? Those provisions of the Constitution were not written by our forefathers in order to make a penthouse for judges. They were constructed as a refuge and a shelter to which all men might repair to escape the incidents of abuse and usurpation of power. Our forefathers did not intend merely to make judges fat. They designed to keep men free. If nonprecarious tenure and pay and judicial supremacy are to be merely artesian teats for judges, instead of everlasting springs of impartial justice, the helpless people have been defrauded of their birthrights by the treachery of their own trustees.
Any Supreme Court Judge who would willfully sanction and enforce the orders and decrees of any servile federal judge, whether he be a "member" of a Hawaiian, a District of Columbia, or an Alaskan District Court, a commerce court, a tax court, a labor court, or any other court, or "board" regardless of name, if he exercises a part of "the judicial power of the United States," should, in the light of our history, in the light of the plain words of our Constitution, and in the light of his perjured oath and plighted faith, become odious to every American who believes either in human integrity or in a government of laws. If the unsullied judicial robe must become the tarnished finery of a prostitute, we can at least floodlight the trysting places!
It is only fair to all of our Supreme Court judges that we point out that no Supreme Court Judge ever has upheld and no honest judge ever will uphold, the constitutionality of any federal law setting up a servile judicial board, against an attack based on the Tribunal Clause of Article I and the provisions of Article III. When we Shepardize the Tribunal Clause, we find that no Supreme Court Judge has ever been called on to apply it to one of our "Star Chambers." The lawyers are to blame for that. Justice Jackson has been telling the lawyers of America that there can be no independent judiciary unless it is backed by an independent and dynamic bar. We echo his call to repentance and shout -- Amen!
When cowardice becomes a virtue, men become slaves. In Aswander v. Tennessee Valley Authority, 297 U.S. 288, 346-348, Justice Brandeis laid down seven self-imposed limitations on the power of the Supreme Court to review issues of constitutionality -- seven ways for the court to duck and dodge. Some call it "judicial deference." A dynamic bar would call it "judicial cowardice." A judge who lives by the code of a coward is a "judicial Quisling," and a lawyer who lives by such a code is worse. Lawyers must become callous to the calls of decency before judges become callous to the pangs of conscience.
Call them what you may -- every despotism in history has had its servile "Star Chambers" for the trial of cases between governments and men. "Board" sounds better to the ear but the sense of smell makes no distinction. Of what consequence is it that helpless people are robbed by a "fine" imposed by a servile bench of judges, or if it be called an "order," or "restitution" by a servile bench of "members"? The result is the same. One must reduce quibbling to a science in order to make a distinction. Justice has always had its free course in suits between Roe and Doe in the worst of tyrannies. It is in the case of the State v. Doe, where man has always cried for impartial justice. Justice has become an effigy in America -- on the altar of a "new philosophy" that is as old as tyranny itself. That "new philosophy" has been the aide-de-camp of every despot that has ever stalked across the pages of history.
The exponents of that "new philosophy" call themselves "Liberals" in America. In the prison camp of Korea they called themselves "Progressives." Both in America and in Korea they are traitors to their Constitution, to their Country and to their God!
2. Some of the writings of George Mason were published in Rowland's Life of George Mason about 65 years ago, in two volumes. These volumes are now on rare book shelves, and cannot be purchased for less than $50.00, if at all. He was a libertarian and stood at the opposite pole from the self-styled "liberals" of today. The writer has searched for and found many hundreds of pages of his writings that have never been printed. Maybe some "angel" will help place his complete writings on American book shelves someday. The job is too big for one country lawyer.
3. Thomas Jefferson has been described by many as a "philosopher." It is a doubtful compliment. If he was a philosopher, his example strengthens the thesis that constitutions are the children of history rather than philosophy. The constitution he wrote for Virginia in 1776 was unanimously rejected in Williamsburg in favor of that written by George Mason. (See Randolph, MS History of Virginia.) Jefferson died nearly 50 years later surrounded by many manuscript constitutions for Virginia that his contemporaries were too wise to adopt. His Constitution of 1776 placed many kingly prerogatives in the hands of the Virginia executive, including headship of the established church. It forbade the payment of salaries to the servants of the people, so that only the rich and well-born might govern the people. That was one of Franklin's rejected proposals in Philadelphia. As to Jefferson, see Boyd, Papers of Thomas Jefferson, Vol. I, 342, 345, 363, 366; Vol. 6, 398. As to Franklin, see "Documentary History of the Constitution" Vol. I, 206 -- Madison Papers, 771-775; "Formation of the Union", 92.
4. "Emancipated Judiciary in America: Its Colonial and Constitutional History," American Bar Association Journal (July and August, 1951, issues) Vol. 37, ABAJ 485 and 587.
See, "Writs of Assistance, as a Cause of Revolution," -- O. M. Dickerson, pp. 40-75 of Era of
the American Revolution. (N.Y. 1939), and citations.
South Carolina, March 1776, Thorpe's, Constitutions and Charters, pp. 3241, 3246; Virginia,
June 1776, Ibid., 3812, 3817; New Jersey, July 1776, Ibid., 2594; Maryland, August 1776, Ibid.,
1686; Pennsylvania, Sept. 1776, Ibid., 3081; Delaware, August, 1776, Ibid., 562-564; North
Carolina, Dec. 1776, Ibid., 2887; New York, April 1777, Ibid., 2623; Vermont, July 1777, Ibid.,
3737 (it was a "state" at home but not abroad); Massachusetts, 1780, Ibid., 1888; New Hampshire,
1784, Ibid., 2453.
Holmes v. Walton, (N.J.) American Historical Papers, 45-47, cited in State vs. Parkhurst, 9
N.J. 549. Referred to in 1785 by Gouverneur Morris, Spark's Life of Gouverneur Morris, Vol. Ill,
p. 438, where he commented that without such power in the courts "the time employed in framing a
bill of rights and form of government was merely thrown away." Commonwealth v. Caton, 4 Call.
(Va.) 5. Elizabeth Rutgers v. Joshua Waddington, (New York) with a historical introduction by
Henry B. Dawson. (N.Y. 1866.)
Bancroft, History of the Constitution, Vol. II, 473.