United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-01-30 00:00:00, page 1

Just arrived and for sole.
An excellent aiiortmenf of
Fresh bnchsh ^ Scotch
-GOODS,
BY
J. P. WHYTE,
- /tithe Store of Mr Abrahamlfear'
CONSISTING OF
^FEARNOUGHTS, Baizes,
, Flannels, Hats, Threads,
cotton and worsted Hose, Calli
€oc<, Shawls, Handkerchief^ and
^ed Ticks of the firft qualities,
^hich wiH.be foil for Cafb, at very low
prices, or approved notes at 6o davs
He rennins but a few days here, so ihafe
who wlfhesa birgpin, wib please t>come
wrward immediately.
TO BE L£TT.
A Large Commodi
' " ons r.nd Convenient
,DWELLING HOUSE
m"''''" '" 'h e cenfre °f 'he
p##£i=7t wn of Haverhill, within a
f ew rods of the great Bridge ;is well cal
culaird for a public haul©, having been
purpofelv fried for that hulinefs ; is one
of the best fbnds fcr a tavern in the State
of M+ffachufetts. Any perlon wishing
to hire the fame may know the 'errrs by
applying^ PE FER'OSGOOD.
HiroahiH, Dec. 1801.
muCTrforwr!^^•&* ttr< yr^-^^—^^CTra
NEW-HAMt'SHIKE
Turnpike Road.
THE Proprieters are notified,
that the annual meeting for the
choice of Officers, will be held at the
east chamber of the State Houle in Ports.
^mouth, on Tuefday, the tyh day of Feb
ripry next, at 5 o'cloc k in the afternoon.
ISAAC WALDRON, jr.
Prairies '/ Clerk.
Porfobuth, ^an. 16, 1802.
United States,)
New-Hantyhire Diftrifl ,
^[OriCE is hereby given to
A. N the creditors of
JACOB PEARSON,
of Exeter, Trailer, against whom a Com
miffinn of Bankruptcy has been duly if
filed and pr^cte/fil no ; that any of hid
gredt>rs may be heard rs they shall think
fir, before the fobferiher, one of rhe cir
cuit [udfesof the United Stites, for the
firfl Circuit on Monday the eighth day
pf February next, at ten ofthe clock in
(he forenoon, at the office of William
Parker, Ehl. in Exeter, against making
@nd allowing certficait^ of difeharge to
(nd Bankrupt— before which time ex
ceptioub tofuch allowar c & nmv be exhib
tA. TEREMVAH" SMITH.
^-yr^wy 4^A4l^-l)rWn^M*M«M^ ef >M UL'CXan>
* Portfakth.
fofeph & Joihua Haven,
&roejufl receded an additional
Real American made
Beaver HATS,
ofa superior manuraflure and firmed in
[he newest fafliioo.
Their aflortment of
European & India
GOODS,
is large and well suited to the Seaton.
They wave also, A fro Pieces
Russia & Ravens Duck,
,and Russia SHEETINGS-all
'which are offered for sale at the lowest
prices. Dec. 11, 18(Q
SEINE TWINE,
A quantity of a foperior cuality,
. FOR SALE, by'
Robert Rice,
Fore-freet, Noth End,
On good terms, for cam. nr approved
credit. — LIKEWISE—
Bbls. Herring, in prime order for
Shipping.
Lines, Nets, Twine,
Wefrlndia Goods ^c.
ns nfnal. %numy 16, xSc2.
gmflfeuqqEfyfflngpireflrcaßaTKL z ^H#iKY- fc^n^i ^i—^gßwfoX^m
^ORTSMOUrH, N.H. Punted and Published every
Printers of the Laws &c. of the
Os ALL THE DISPOSITIONS AND HABITS WHICH LEAD TO POLITICAL ")
~ prosperity, RELIGION and MORALITY are indispensable,
COPYORTS. - WASHINGTON'S Legacy. ' J
^.XI/] SATURDAY, JANUARY 30, 1802,
AMERICAN INDEPENDENCE, TWENTY-SIXTH YEAR.
Portsmouth
©mtm ^ tates
ICONGERSS.
The grand debate,
The popular harrangue, the tart reply,
IThe logic, and the wifaom, and the wit."
SENATE of the UNITED STATES,
AT WASHINGTON, FRIDAY, JAN. 8, xßot.
— 0
JUDICIARY ESTABLISHMENT.
MR, Brackenridge. It will be expeded of
me, I presume, Sir, as I introduced the
I evolution now under confide ration, to assign
I ray reasons for wishing a repeal of this law.—
This! (hall do; and (hall endeavor to (hew,
I, That the law is unnecessary and improp
er, and was so at its passage; and
2. That the Courts and Judges created by it,
can and ought to be abolished.
ift. That the a& under confidcratiort, was
unnecessary and improper, is, to my mind, no
difficult talk to prove. No increase of courts
or judges could be necessary or juftifiable, un-
Jess the existing courts and judges were incom
petent to the prompt and proper difeharge of
the duties configbed to them. To bold out a
(hew of litigation, when in fad little cixfts —
must be impolitic ; and to multiply expensive
systems, and create hods of expensive officers,
without having experienced an adual necessity
for them, must be a wanton watte of the pub
lic treasure.
The document before us (hews, that at the
paffuge of this a&, the exiting courts, not on
ly from their number, but from the suits de
pending before them, were fully competent to a
speedy decision of those fairs—lt (hews, that on
the 15th day of June lag, there were depend
ing in all the Circuit Courts (that of Mary
land only excepted, whole docket we have not
been furnifhed with) 1539 suits. It Ihcws
that 8276 suits of every description have come
before those courts, in 10 years and upwards.
From this it appears, that the annual average
amount of suits has been about 800.
But sundry contingent things have conspired
to (well the Circuit Court dockets. In Mary
land, Virginia, and in all the southern and
south-western Bates, a great number of suits
has been brought by British creditors : this
species of controversy is nearly at an end.
In Pennfylyania, the docket has been fuell
ed by prosecutions in consequence of the wef
tern infarreaion, by the disturbances in Bucks,
ahd Northampton Tountie,; and by the Sedi
tion Ad. Thefc I find amount in this State
to 240 suits.
In Kentucky non-resident land claimants
have gone into the Federal Court from a tem
. porary convenience ; because, until within a
year or two past, there existed no court of gen
eral jurifdidion co-extensive with the whole
State. I find too, that of the fix hundred and
odd suits which have been commenced there,
196 of them have been prosecutions under the
laws of the United States,
In mod of the States there have been profe
tutions under the Sedition All. This source
of litigation is I trust forever dried up. Aud
hilly, in atl the States a number of suits have
arisen under the excise law; which source of
controversy, will, I hope, before this session ter
minates, be also dried up.
But this fame document discloses another im
portant faA ; which is, that ncvevetthelefs all
these untoward and temporary sources of feder
al adjudication, the suits in those courts are de
creeping ; for from the dockets exhibited (except
Kentucky, and Tennelfee, whose suits are sum
med up in the aggregate) it appears, that in
1799 there were 1274 ; and in 1800 there
were 687 suits commenced; (hewing a de
crease of 587 suits.
Could it be necessary then to increaf courts
when suits were decreasing ? Could it be neces
sary to multiply judges when their duties were
I diminishing ? And will I not be juftifled there
forejn affirming that the law was unnecessary,
and that Congress adted under a mistaken im
pression, when they multiplied courts and judg
, cs at a time when litigation was actually de
creasing.
But, Sir, the decrease of business goes a final!
way in fixing my opinion on this fubjedt. lam
inclined to think, that so far from there having
been a necessity at this time for an increase of
courts and judges ; that the time never will ar
rive, when America will Band in need of 38
federal judges. Look, Sir, at your Confuta
tion, and fee the judicial power there consign
ed to federal courts, and ferioufty ask youtfeff,
can there be fairly extracted from those powers
fubjeds of litigation fufficient for fir supreme
and thirty-two inferior court judges? To me
it appears impossible.
The judicial powers given to the federal
courts were never intended by the Constitution
to embrace, exclusively, fubje&s of litigation,
which could with propriety be left with the
State courts, Their jurifdi&on was intended
principally to extend to great national and for
eign concerns. Except cases arising under the
laws of the United States, I do not at present
recoiled, hut three or four kinds in which their
power extends to fubjeds of litigation, in which
private persons only are concerned. And can
it be poflihle, that with a jurifdiaion embracing
so small a portion of private litigation, in great
part of which the State courts might, and ought
to participate, that we can Band in need of 38
judges ; and expend in judiciary regulations
the annual sum of 137,000 dollars ?
No other country, whose regulations I have
any knowledge of, furnifhes an example of a sys
tem so prodigal and extepfive. In England,
whose courts are the boast, and said to be the se
curity of the rights of the nation, every man
knows there are but 12 judges and three princi
pal courts. These courts embrace is their
original or appellate jurifdiaion almost the
whole circle of human concerns.
The King's bench and Common Pleas,
which consist of four, judges each, embrace all
the common law suits of 40s. and upwards,
originating among nine millions of the most
commercial people in the world. They more
over revise the proceedings of not only all the
petty courts of record in the kingdom, even
down to the courts of Piepoudre ; but also of
the Court of King's bench in Ireland; and
these supreme courts after centuries of experi
ment, are found to be fully competent to all
the business of the kingdom.
1 will now enquire into the power of Congress
—to put down these additional courts and
judges.
Xft. As to the Courts—Congress are Em
powered by the Constitution " from time to
time, to ordain and establish inferior courts."—
The art now under confederation, is a legisla
tive confruflisn of this clause in the Constitu
tion, that Congress may abolfo as well astre
ate these judicial officers ; because it does CT
-1 preffy in the 27th fe&ion of the aa, atotifo
the then exiting inferior courts, for the pur
pose of making way for the present. This
conftru&on I contend is correct ; but it is
equally pertinent to my objeA, whether it be,
or be not. If it be correct, then the present in
ferior courts may be abolished as constitutional
ly a, the last ; if it be not, then the law for
abolishing the former courts, and eftablilbing
the present, was unconftkutional and conse
quently repealable,
But independent of this Egiflative contrac
tion on which 1 do not found my opinion, nor
mean to rely my argument, there is little doubt
indeed, in my mind, as to the power of Cou
grefs on this law. The xft. Tedion of the 3d|
art. veftsthe judicial power of the United States ;
in one supreme court and fab inferior courts as|
Congress may from time to time, ordain and es-1
tabliffi. By this clause, Congress may froml
time to time eftabliih inferior courts; but it is ;
already a difcretional power, and they may net 1
establish them. The language of the Condi-|
tution iavery different wheriregulations are not|
left difcretional. For example—" The trial,j
fays the Constitution, of all crimes (except in I
cases of impeachment) fa// be by jury. Rep- 1
refematives and dired taxes JBa// be applied ac-|
cording to numbers. All revenue bills fall
originate in the House of Representatives, &c.,
It would therefore in my view be a perversion
not only of language, but of intellect, to lay,
that although Congress may from time to time
eflablifh inferior courts, yet when established,
that they fall not be abolished by a subsequent
Congress possessing equal powers. It would be
a poradox in legislation,
ad. As to the Judges. The judiciary de
partment is so concluded as to be fufficiently
secured against the improper influence of either
the executive or legislative departments. The
courts are organized and established by the lc
giflature, and the executive creates the judges.
Being thus organized, the constitution affords
the proper checks to secure their honesty and
independence in office. It declares they (ball
not be removed from office during good be
haviour ; nor their salaries diminished during
their continuance in office. From this it results,
that a judge, after his appointment, is totally
out of the power of the President, and his (ala
ry secured against legillative diminution, during
bis continuance fa office. The firft of these checks,
which protean a judge in his office during
good behaviour, applies to the Pre, dent only,
who would otherwise have possessed the power
of removing him like all other officers otplcaf
ure; and the other check forbidding a diminu
tion of their salaries, applies to the legislature on
ly. They are two separate and diftina checks,
furnished by the constitution against two dif
tina departments of the government ; and they
are the only ones which are or ought to have
been furnifhed on the fubjea.
But because the couflitution declares that a
judge (ball hold his office during good behaviour,
can it be tortured to mean, that he (hall hold
his office after Jr 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 cxift although its du
ties are extin& ? Can it mean, in short, that
the shadow, to wit. the judge, can remain,
when the substance, to wit, the office, is re
moved ? It must have intended all these ab
surdities, or it must admit a conftrudlion which
will avoid them.
That conftruaion obviously is, that a judge
should hold an exiting office, so long as h^ did his
duty in that office : and not that he ffiould
hold an office that did not exist, and perform
duties not provided by law. Had the con
firudlion which I contend against been con
templated by those who framed the constitution
—it would have been nectffary to have de
clared explicitly, that judges should hold their
offices and salaries during good behaviour.
Such a conftrudion is not only irreconcilea
ble with reason and propriety, but is repug
nant to the principles of the constitution. It is
a principle of our constitution, as well as of
common bonefly, that no man shall receive pub
lic money,but in confident ion of public ferviccs.
Sinecure offices therefore are not permitted by*
our laws 01 constitution. By this conftru&ion,
complete sinecure offices wlp be created ; hosts
of constitutional pensioners trill be fettled on us,
and we cannot calculate tew long. This is
really creating a new fpecics t%ublic debt ;not
like any other of our debts, vfe cannot difeharge
the principle at ary fixed time. It is worse
than the deferred flock; for on that $ you pay
an annual intereO only, and the principal is re
deemable at a given period. But here, you pay
an annual principle, and that } principal irredeem
able except by the will of Providence. It may
suit countries where public debts are considered
as public blessings; for in this way a people
might soon become fuperlat vdy blessed indeed.
Let me not be told, fir, th* the salaries in the
present case, are inconfideta/ble, and ought not
to be withheld ; ana that the dodhine is Bot a
dangerous one. I answer, ±is the principle I
contend against ; and if it fy hetrodox for one
dollar, it is equally so for anillion. But I con
tend the principle, if once admitted; may be
, extended to deftruaive lengths. Suppose it
should hereafters happen that those iu power
I fhould combine to provide handsomely for
; their friends, could any way so plain, easy and
Icfft dual, present itfelf, as by creating courts,
iand filling them with those friends:—Might
I not sixty, as well as fifteen, with salaries of
twenty tffopfend, instead of two thousand dol-
Ihrs, be provided for in this way ? b
The thing I trust will not happen. Itje pre
suming a high degree of corruption ; but it
might happen under the conftruaion contend
ed for fas the constitution pfefumes corruption
;may happen in any department of the govern
ment, by the checks it has furnifhed against it ;
and as this conflrudlion does opeh a wide door
for corruption, it is but fair reafooing to Crew
the dangers which may grow out of it ; for in
the conftru&ion of all instruments, that which
will lead to inconvenience, mifehief or absurdi
ty, ought to be avoided. This doctrine has
another difficulty to reconcile ; —After the law
is repealed, they are either judges, or they are
rot. If they are judges, they can be impeach
ed ; but for what ? For ril-jeofor.ee in office
only. How, I would ask, can they be impeach
ed for mabfeafance in office, when their offices
are abolished ? They are not officers, but still
they are intitled to the emoluments annexed
to an office. Although they are judges, they
cannot be guilty of mal-feafance, because they
have no office. They are only qutf judges so
far as regards the duties,^ut real judges so far as
regards m.fola?,. It must be the frier, then,
land1 and not the duties, which corftitutt a judge.—
I For my part, I do not know under what class
! of things to range them, or what name to give
them. They afe unacknowledged^ by the let
ter, spirit, or genius of our conflithtion, and
I are to me non defcrips.
IThere is another difficulty under this con-
Iftrußion still to encounter, and which a!fd
I grows out of the constitution.—By the confti
; tution, a new date may be formed by the junc-
Ition of two or more states, with their assent
I and that of Congress. If this doctrine, once a
I judge and always a judge be correct, what
would you do in such an event, with the dif
trid ljudges of the states who formed that junc
-1 tion ? Both would be unnecessary, and you
would have in a single (late, two judges of
equal and concurrent jurifdi&ion ; or one a
real judge with an office, and another a quasi
judge without an office. The States also form
ing such junction, would be equally embarrass
ed with their State judges; for the fame cau-
Urudion would be equally applicable to them.
Upon this conftruaion also, an infallibility
is predicated, which it would be arrogance in
any human institution to assume, and which goes
to cut up legislation by the roots. —We should
be debarred from that, which is indulged to ur
from a higher source, and on fubjedts of higher
concern than legislation, 1 mean a retraction
from, and correction of our errors .On all
other fubjeds of legislation we are allowed it
seems to change our minds, except on judicial
Subjects which of all others is the molt com
plex and difficult. I appeal to our own Sta
tute book to prove this difficulty ; for in ten
years Congress have p^fcd no less than twenty- °
fix laws on this fubje&.
I conceive fir, that th? tenure by which a
judge holds his office, i< evidently bottomed on
rhe idea of feinting his honesty and indepen
dence, whilst exercising his office. The idea
was introduced in England, to counteract the
influence of the crown over the judges; but if
the construction now contended for Shall pre
vail, we Shall in one mistaken imitation of this
our favorite prototype outstrip them ; by eftab
lifning, what they have not. a judicioligarchy ;
for there, their judges are removeabie, by a
joint vote of Lords and Commons. Here ours
are not removeable, except for mal-feafance in
office, which mal-feafance could not be commit
ted, as they would have no office.
Upon the whole fir, as all courts under any
free government must be created with an eye
to the administration ofjuftice only; and not
with any regard to the advancement or emolu
ment of individual men ; as we have undenia
ble evidence before us. that the creation of the
courts now under consideration was totally un- -
necessary ; and as no government can. I appre
hend, ferfoufly deny that this legislature has a
right to repeal a law enabled by a preceding
one; we will, in any event, difeharge out duty
by repealing this law : and thereby doing all
in our power to correct the evil. If the judges
are intitkd to their salaries, under the conflitu-,
tion, car repeal will not affed them ; and they
will no doubt resort to their proper remedy;
For where there is a constitutional right, there
mull be a remedy.
——o
Mr. Jona. Mason, of Massachusetts
said it would be agreed to on all hands
that this was one of the most import
ant questions that ever came before a
legislature. Were he not of this opin
ion he would not have risen to offer
his fentimenrs. But he felt so deep an
inteteft in the question, and from the
refpe& which he entertained for the
diftrid of country he represented, h^
deemed it his duty to moct the fubjed,
and not to be fatisfed with giving to
it his silent negative.
It was well known, and he pfefum
ed it would be readily agreed to, that
no people on earth, for the last twenty,
four years, had been so much in the
habit of forming fyflems of govern
ment as the people of thaUnitedStates.
Nor had any people been so forunatei,
situated for cool and correft delibera
tion. In the constitutions they had
formed, it would appear that there had
been an uniform concurrence in the es
Saturday Morning, by WILLIAM TREADWELL, & C °
United States; in New-Hamp(hire.
{C^AD vERTISEMEN FS reasonably ^ccnsficuously inserted—COMMU
NICATIONS dub attended to—and every FAVOR THANKFULLY
ACKNOWLEDGED.
wmjiw i"Mi linn i^.mt Wo ^#j&&&to: ±t ^^*^raß^^n^^MrorareßmmßgreTOCTen^rc3tagreCT3rHmmamflrera.p
PRICE I DOLLAR 50 CENTS Per Annim. [No. 13
FEDERAL GOVERNMENT, THIRTEENTH YEAR.
Advertiser.
®<^€l€ anti
1
tablifhment of one great prominent
feature, and also in the application of
one uniform principle to that feature,
that the legislative, the executive and
the judicial Should form the three great
departments of government, and that
they should be diftintt from and inde
pendent of each other.— And the more
the proceedings and Sentiments of the
people were examined, the more clear
ly would it appear trat all the new &
additional checks created, had been ap
plied to adjust the relative weakness or
strength of the several departments of
government. The fame principle had
been observed in the old world, when
ever an opportunity presented for form
ing a constitution, having for its abje&
the prote&ion of individual rights. It
' accorded too with the uniform opinions
of the molt celebrated historians and
politicians both of Europe and Ameri
ca ; with the opinions and practices of
all our legislatures. Nor had Mr.Mafori
ever heard any one hardy enough to
deny the propriety of its observance.
He well recollected that among the
;great grievances, which had roused us
iinto an assertion of our independence
!of England, it was declared in the in
;ftrument alerting that independence
;"that the crown had the appointment
of judges dependent on its will and fa
vor."
From all these cTcumftances he con
cluded that the people of America,
when they formed a system fortheir fed
eral government, intended to etlablifh
this great principle ; and the conclu
sion would be confirmed by an exami
nation of the constitution, which in ev
ery feCtion recognized or referred to it*
The constitution, in the conftrudion
of the executive,legislative & judiciary
departments had assigned to each a dif
ferent tenure—The President was chofi
en for four years ; the Senate for fix
years, fubjed to a prescribed rotation
biennially ; the House of Representa
tives for two years.; and the judiciary
during good behaviour. It fays to the
President, at the expiration of every
four years, you Shall revert to the char
after of a private citizen, howev#
splendid your talents or conspicuous
your virtue# Why ? because you haveafc
Signed to you "powers which it is dange
rous to exercise.—-You have the power
of treating offices and officers.—You
have prerogatives—The temptation tQ
an abuse of your power js great. Such
has been the uniform experience of
ages. The constitution holds the fame
language to the Senate and House of
Representatives ; It fays, it is necef
far, for the good of society that you
also should revert at short periods to
the mass of the people, because to you
are consigned the moll important duties
of government, and because you hold
the purse firings of the nation.
To the judiciary: What is the lan
guage applied to therm? The judges
are not appointed for two, four, or any
given number of years ; but they held
their appointments for life unless the,
misbehave themselves. Why ? For
this reason. They me not the deposi
tories of the high prerogatives of gov
lernmeut. The, neither appoint to of
fice, or hold the purse-strings of the
Country, or legislate for it. They de
pend entirely upon their talents, which
is all they have to recommend them.
Tley cannot, therefore, be disposed to
pervert their power to improper pur
poses—What are their duties? To
expound and appiyithe laws. To do .
this with fidelity and Skill requires
length of time. The requisite know,
ledge is not r o be procured in a day—
Thefeare the plain and strong reasons
which mull Strike every mind, for the
different tenure by which the judges
hold their offices, and they are such as
will eternally endure* whenever liberty
exists.
* On examination,it will be found that
th^ people, in forming their constitution
meant to make their judges, as inde
pendent of the legislature as of the ex
ecutive. Because the duties which they
have to perform, call upon them to ex
pound not only the laws, but the con
stitution also ; in which is involved the
power of checking the tegiflature in
case it Should pals „ laws in violation
of the constitution.^For this r eafon ft
was more important t^Rt the judges in
this country Ihouktytf placed beyond
the conrroul of the legislature, than in
other countries where no such power a,
tachet to rero,