United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-02-13 00:00:00, page 2

l to ride circuits and learn the other Set
of matter judges to hold courts and de
cide controversies.
We aretcld, fir, that the repeal aiked for is
important, in that it may establish a precedent,
for that it is not merely a question on the pro
-pricty of dilbanding a corps offatcen rank and
file ; but that provision may hereafter be made
rot for sixteen, but lor sixteen hundred or six
teen thousand judges, and that it may become
' necessary to turn them to the right about. Mr.
J'rclident, I will net, I cannot presume, that
any such provision will ever be made,and there
fore I cannot receive any such neceffiry ; I
will not suppose, for I cannot suppose, that any
party or fi&ioo will ever do any thing so wild,
io extravagant. But 1 will aik, how does this
flrange luppo+itlon consist with the doctrine of
gentlemen, that public opinion is a fufficient
check on the legislature, and a Efficient fafe
guard to the people Put the case to its con
sequences, and what becomes of the check ?
Will gentlemen lay it is to be found in the
force of this wife precedent? Is this to contr gp
Succeeding rulers in their wild, their mad ca
reer ? But how ? Is the creation of judicial offi
cers the only thing committed to their difere
rion ? Have they not, according^t^he doctrine
contended for, our all at their disposition, with
no other check than public opinion, which ac
cording to the I'uppofcion will not prevent them
from committing the greatest follies and abfur
tiities ? Take then all the gentleman's ideas,
and compare them together, it will result that
here is an inestimable treasure put into the;
hands of drunkards,,madmen and fools.
But away with all thefc derogatory supposi
tions. The legislature may be trusted. Our
government is a fyfteni of salutary Checks. One
legislative.branch is a check on the other. And
Should the violence of party' spirit bear both of
them away, the Prefidimt, an officer high in
'honor, high in the public corifidence, charged
with weighty concerns, responsible to his own
regulation, and to the world, Hands ready to
arrest their too impetuous cpurfe,, This is our
system. It makes no mid appeal so every mob
in the country. It appeals to the Sober sense of
men fcle&ed from their fellow-citizens for their
-talents, for their virtue —of men advanced in life
and of matured judgment. It appeals to their
understanding, to their integrity, to their honor,
to their love of fame,to their tense of fliame. If all
these checks Should prove insufficient,and alas !
such is the condition of human nature, that I
fear they will not always be Sufficient — the con
flitutwn has given us one more. It has given us
an independent judiciary. We have been told,
that the executive authority carries your laws,
into execution.—But let us not be the dupes of
found. The executive magiftratc commands in
,deed yoer fleets and armies; and duties, im
polls, excises, and all other taxes are collected
and all expenditures are made by officers whom
he has appointed. So far indeed he executes
your laws. But these his arils apply not often
to individual concerns. In .those caf« so im
portant to the peace and happiness of society,
the execution of your laws is confided to your
judges. And therefore are they rendered inde-^
pendent. Before then that you violate that in
dependence—Paule—there are Rate fovereign
tics, as well as the Sovereignty of the general
government. There are cases—too many cases
—in which the interest of one is not considered
as rhe interest of the other. Should these con
flict—if the judiciary 4e gone, the question is
no longer of law, but of force. This is a state
or things which no homed and wife man can
view without horror.
legislative authority, you trench upon
the rights of your fellow-citizens,, by
passing an unconstitutional law : If the
judiciary department prefeive its vigor
it will stop you ffiprt. Instead of a re
sort to arms, there will be a happier
appeal to argument. Suppose a case
Rill more impreflive. The President is
at the head of your armies. Let one
of his generals, slushed with vi&ory,
and proud.in command, presume to
(trample op the rights of your most in
fignificant citizen. Indignant of the
wrong, lie will demand the protection
of your tribunals, and fafe in the Shad
ow of their wings, will laugh his op-
preffor to Scorn.
Having now, I believe, examined all
' the arguments adduced to Shew the ex
pediency of this, motion, and which
fairly filled, reduce themselves at last
to,thefe two things. Restore the an
tient system, and save the additional
expence. Before I close, what I have
to fay on this ground, I hope I fliall be
pardoned for faying one or two words
about the expense. I hope also that
notwithstanding the epithets which
may be applied to my arithmetic, I
Shall be pardoned for using that which
1 learnt at fchcol. It may have de
ceived me when it taught me that two
and two make four. But though it
Should note ) be branded with opprobri
ous terms, I must fill believe that two
and two do fill make four. Gentle
men of newer theories, and of higher
attainments, while they smile at my in
feriority, must bear with my infirmities,
and take me as I am.
In dllthis great system of Saving :
in all this oftentatiotis economy, this
rage of reform, how happens it
that the eagle eye has not yet been
turned to the Mint ? That no one
piercing glance has been able to behold
the expenditures of that Department ?
I am far from willing to overturn it.
Though it be not of great necessity,
nor even of substantial importance,
though it be but a splendid trapping of
your government ; yet as it may by
impressing on your current coin the
emblems of your Sovereignty, have
some tendency to encourage a national
spirit and to fofter the national pride,
I am willing to contribute my Share to
its support. Yes, fir, I would fofter
the national pride. I cannot indeed ap
frove of national vanity, nor feed it
with vile adulation. But I would glad
ly cheriSh the lofty sentiment of national
pride. I would wish my countrymen
to feel like Romans, to be as proud as
Englishmen, and going Rill farther, I
Suppose, in the omnipotence ofyour
Uould with them to veil their pride in
the well bred modesty of French
.pohtenefs. But can this eflablifhment r
the mere decoration of your political
defence, can it be compared with the
mafy columns on which rest your peace
and fafexy ? Shall the Striking ofa few
haltpence be put into a parallel with
the distribution of justice ? I find, fir,
from the eßimate on your table, that
the salaries of the officers of your mint
amount to 10,600 dollars, and that the
expences are estimated at igoo ; mak
ing 21,500 dollars.
1 find'that the actual ex^nditure of
the last year, executive of salaries a
mounted to Dolls. 25,154 44
Add the salaries, - 10,600
We have a total of, 35,754 44
A sum which exceeds the Salary of
these sixteen judges.
I find further, that during the last
year they have coined cents and half
cents to the amount of 10,473 dollars
and 29 cents. Ihus their copper coin
age falls a little Ihort of what it coils us
for their salaries. We have however
from this cftablifliment about a million
cents, one to. each family in America.
Alittle emblematic medal to be .hung
oyer their chimney pieces ; and this is
all their compensation for all that ex
pence. Yet not a word has been faid'
about the mint, while the Judges
whose services are much greater, and
of so much more importance to the
community, are to be struck off at a
blow, in order to save an expence
which, compared with the object is pit
iful. What conclusion then are weto
draw from this predili&ion?
I will not pretend to aflign to gentle
men, the motives by which they may
be influenced ; ,but if I ftould permit
myfelf to make th£enquiry, the Style of
so many observations, and more espe
cially the manner, the warmth, the
irritability, which have ' been exhibited
on this occasion, would lead to afolu
tion of the problem. I had the honor,
fir, when 1 addressed you the other day
to observe, that I believed the universe
could not afford a fpedacle more fa
15lime thai ithe view of a powerful state
kneeling at the altar of justice, and fac
rifcing there he, pAhon and her pride.
That 1 once foftered the hope of be
holding that fpe&acle of magnanimity'
in America. And now what a world
of figures has the gentlemen from Vir
ginia formed on his apprehension of
that remark, I never expressed any
thing like exultation at the idea of a
State, ignominiously dragged in tri
umph at the heels of your judges. But
permit me to fay, the gentleman's ex
quisite sensibility on that fubjed, his a
larm and apprehension, all ffiew his
strong attachment to state authority.
Far be it from me, however, to charge
the gentleman with improper motives.
I know that his emotions arise from one
of those imperfections in our nature,
which we cannot remedy. They are
excited by causes which have naturally
madfyhim hostile to this constitution,
though his duty compels him reluc-,
tantly to support it. I hope, however,
that those gentlemen, who entertain'
different sentiments, and who are less
irritable on the score of state dignity,
will think it essential to preserve a con-
Ritution, without which the indepen
dent exigence of the States themselves
will be but df Short duration.
This, fir, leads me to the second ob
ject I had piopofed, I fhall' therefore
pray Four indulgence, while 1 confider
how far this measure is confitutional.—
I have not been able to difeover the ex
pediency, but will now for argument
fake admit it ; and here, I cannot but
express my deep regret for the situation
of an honorable member from North -
Carolina+ Tied faft as he is, by his In
ftruCWons, arguments, however forci
ble, can never be effectual. I ought,
therefore, to with for his fake, that his
mind may not be convinced by any
thing I Shall fay; for hard indeed
would be his condition, to be bound by
the contrarient obligations of an order
and an oath. I cannot, however, but
express my profound refpe& for the tal
ents of those who gave him his instruc
tions, and who, fitting at a distance,
without hearing the arguments, could
better understand the fabjedthan the
senator on this floor,after full difeuffion.
The honorable member from Vir
ginia has repeated the distinction, be
fore takeri, between the supreme and
the inferior tribunals ; he has infilled
on the distinction between the words
jW/and may: has inferred from that
distinction, that the judges of the infe
rior courts are fubjeds of legislative
diferetion, and has contended that the
word may includes all power.refpeding
the Subject to which it is applied, con°
fcquently to raise up and put down, 40
create and to deftrty. I mud entreat
your patience, fir, while I go more into
this fnbjeCt than I ever supposed would
be neteffary. By the article, so often
quoted, it is declared “ that the judi
cial power of the United States fall
be veiled in one supreme court and in
such inferior courts, as the Congress
% from time to time establish." I
beg leave to recal your attention to
what I have already said of these infe
rior courts. That the original jurifdißion
of various fofo% being given excinfae to
them, it became the bounded duty'of Coh
grefs, to ejiablijh such courts. I will hot
repeat the argument already used on
that subject. But I will a sk those who
urge thedißin&ion between the supreme
court and the inferior tribunals, wheth
er a law was not previously neceSTary
before the supreme court could be or
ganized. They reply that the consti
tution fays, there fall be'a supreme
court, and therefore the Congress are
commanded to organize it, while the
red is left to their diferetion. This,
fir, is not the fad. The constitution
fays, the judicial power fltail be vetted
in one supreme courts in inferior courts,
the legislature can therefore only or
ganize ^Supreme court, but they may
establish as many inferior courts as they
Shall tliink proper. Ihe designation
made of them by the constitution is,
such inferior courts as the Congress
may from time to time ordain and ef
tabUll,. But why, fay gentlemen, fix
precisely one supreme court, and leave
the rest to legislative diferetion ? The
answer is Simple. It results from the
nature of things, from the exigent and
probable state of our country. There
was no difficulty in deciding, that one
and 'only one supreme court Should be
proper or necessary, to which Should
lie appeals from inferior tribunals.—
Not so as to these. The United States
were advancing in rapid progression.
Their population of three millions was
soon to. become five, then ten, after
wards twenty millions. This was well
known as far as the future can become
an object of human comprehension. In
this increase of numbers, with a Rill
greater increase of wealth, with the ex
tension of our commerce, and the pro,-
grefs of the arts, it wa§ evident that
although a great many tribunals would
become neceffiry, it was impoffiblc to
determine either on the precise num
ber or the mod convenient form. The
convention did not pretend to this pre
feierice; but, had they possessed it,
would it have been proper to have es
tablished then all the tribunals necta
ry for all future times ? Would it have
been wife to have planted courts among
,'the. ChickafavA, the Chocktaws, the
Cherokees, the Tufearoras, and God
knows how many more,becaufe at some
•future day the regions over which they
roam might be cultivated by policed
men ? Was it not proper, wife, hecelTa
ry to leave in the diferetion of Congress
the number arid the kind of courts
vrbith they might find it proper to
eflablijb for the purpose designated by
the Cohftitution. This Simple statement
of fads ; fads of public notoriety, is
alone a ftifficient comment on and ex
plication of the word on which gentle
men have so much relied. The con
vention in framing, the people in a
dopting this compact, fay the judicial
power Shall extend to many cases, the
original cognizance whereof Shall be by
the inferior courts ; but it is neither
necessary, nor even possible, how to de
termine their number or their form that
essential power therefore, Shall vest in
such inferior courts as the Congress
may from time to time in the progres
sion of tittie arid according to the indi
cation of circumflances, eJlablifo. Not
provide, ordain or determine, but tf ablins.
Not a mere temporary provision, but an
eftablifoment. If after this it had said
in general terms, that fat/go Should
hold their offices during good beha
viour, could a doubt have existed on
the interpretation of this a&, under all
its attending circumstances, that the
judges of the inferior courts were
intended, as well as those of the su
preme court ? Btit did the framers of
the -constitution flop there ? Is there
then nothing more ? Did they rifque
on these grammatical niceties the fate
of America ? Did they rest here the
moil important branch of our govern
ment r Little important, indeed, as to.-
foreign danger : but infinitely valuable
to our domestic peace, and to personal
protection against the oppreflion of our
rulers. No. Left a doubt Should be
railed, they have carefully cOhnefted
the judges of both courts in the fame
Sentence ; they have said “ the judges
both of the Jupreme and inferior courts,"
thus coupling them infeperably togeth
er. You may cut the bands, but you
can never untie them. With salutary
caution they devised this clause, to
arrest the overbearing temper which
they knew belonged to legislative bo
dies. They do not fay the judges,
simply, but the judges of the supreme
and inferior courts Shall hold their of
fices during good behaviour. They
fay therefore to the legislature, you
may judge of the propriety, the utility,
the necessity of organizing these courts
—but when efablijhed, you have done
your duty. Anticipating the course of
passion in future times, they fay to the
legislature, you Shall not difgrrice your-'
Selves by exhibiting the indecent fpe&a
cle of a judiciary established by one le
gislature removed by another. We will
save you also from yourselves. We fay
these judges Shall hold their offices';
and, surely, fir, to pretend that they
can hold their offices after the office is
destroyed, is contemptible.
The framers of this constitution had
Seen much, read much, and deeply re
^^ed. I hey knew by experience the
Violence of popular bodies, rand let it be
remembered that since that day many
of the Rates, taught by experience, have
lound it neceiTary to change their forms
^yernment^avoid the effects of
that Violence. The convention contem
' plated the very ad you now attempt.
They knew also the jealousy and the
power of the Rates 4 and they eftablilh
ed for your and for their protedion, thi§
mod important department. I beg gen
tlemen to hear and to remember what
I fay. It is this-department alone,and
it is the independence alone of this de
partment, which can save you from civ
il war. Yes Sir, adopt the language
of gentlemen, fay with them by the ad
to which you are urged, “if we can
not remove the judges we can destroy
them." Eftabliih thus the dependence
of the judiciary department. Who will
resort to them for protedion against
you? Who will confide in, who will
be bound by their decrees ? Are we
then to resort to the ultimate reason of
Kings! Are our arguments to fly from
the mouths of our cannon ?
We are told that we may violate our
constitution, because Similar conftitu
tioris have been violated elfewherf —
Two Rates have been cited to that effed,
Maryland and Virginia. The hop. gen
tleman from Virginia tells tislhat'when
this happened in the state he belongs to,
ho complaint was made by the judges.
I will not inquire into that fad, altho'
I have thtptoteft of the judges now ly
ing before me. Judges eminent for
their talents, renowned for their learn
ing, refpedable for their Virtue. I will
not inquire what constitutions have
been violated. I will not ask either
when or where this dangerbris pradice
began, or has been followed. I will ad
mit the fad, What does it prove ?
Does it prove that because they have
violated, we also may Violate ? Does it
hot prove diredly the contrary > Is it
not the ftrttngeft reason on earth for
preserving the independence of out tri
bOnals? If it be true that they have
With strong hand seized their courts,and
bent them to their will, ought we not
t 6 give suitors a fair 'chance for justice
in our courts, or muff the fuffering citi
zen be deprived of all prote&ion ?
The gentleman from Virginia has
called our attention to certain cases
which'he confiders as forming necessa
ry exceptions to the principles for which
we contend. Permit me to fay that
heceffity is a bad law ; and frequently
proves too much ; 'and let the gentle
man recolled that arguments which
prove too much, prove nothing.
He has instanced a case where it may
be proper to appoint commiffonefrs for a
limited time to fettle some particular
description of controversies. Undoubt
edly it is always in the power of Con
gress to form a board of commissioners
for particular purposes. He asks are
these inferior courts, and must they also
exist forever ; I answer that the nature
of their offices must depend on the law
by which they are created ;' if called
Ibexercife the judicial fundions desig
nated by the coriftirutionthey must have
an exigence conformable to its injunc
tions;
Again he has instanced the Miffifippi
Territory, claimed by and which may
be surrendered to the state of Georgia,
and a part of the union which may be
conquered by a foreign enemy. And
he asks triumphantly are our inferior
courts to remain after our jurifdidioh
is gone ? This case rests upon a princi
ple so Ampletbat l dm surprised the
hon. member did not'perceive the an
swer in the vety moment when he made
the objedion. Is it by our ad that a
I country is taken from us by a foreign
I enemy ? Lit by our consent that our
Ijurifdid'ion is 101 l ? 1 had the honor in
Speaking the other day, erprefsly and
for moll obvious reasons, to except the
case of conquest. As well might we
contend for the government of a town
swallowed up by an earthquake.
[Gem Mason explained-—He had
supposed the case or territory conquer
ed and afterwards ceded to the con
querer, or some other tei ritbry ceded
in lieu of it.]
It is said, the judicial institution is
intended for the benefit of the people,
and not of the judge ; and is it com
plained of; that in Speaking of the
office, we fay it is / A office. Undoubt
edly the institution is for the benefit of
the people. But the question retrains
how will it be rendered most bene
ficial ? Is it by making the judge in
dependent, by making it his office, or
is it by placing him in a state of abje&
dependence so that the office Shall be
his to day and belong to another to
morrow ? Let the gentleman hear the
words of the constitution ; it fy^ks of
Mr. Morris—The case is precisely
the fame. Until after the peace the
conquest is not complete. Every body
knows that until the ccßion by treaty,
the original owner has the poftlimina
ry right taken from him.—Beyond all
question where Congress are compelled
to cede the territory, the judges can no
longer exist unless the new Sovereign
confer the office. Over such a territo
ry the authority of the conftittition
ccafes, and of course the' rights which
it confers.
irrelevant.
The fame hon. member has riot only
given us his hiftory of the supreme
court, but has told us of the manner in
which they do business, and expressed
his fears that having little else to do;
they will do mifchief.—We are not
competent, fir, to examine, nor ought
we to prejudge, their conduct. lam
persuaded that they will do their duty,
and presume they will have the decen
cy to believe .that we do our duty.
In so far as they may be busied with the
great mifchief of checking the legis
lative or executive department in any
wanton invasion of our rights, I Shall
rejoice in that mifchief.—l hope indeed
they will not be so bulled, because I
hope we shall give tlierri no Canfe.
But also I hope they will keep an eagle
eye upon ns Mt We Should. It was
partly f& this purpose they wcib.es
tablished, and I trust that when prop
erly called bn, they will dare to a&
I know this doctrine is unpleasant. I
know it j's more popular to appeal to
public opinion, that equivocal, transient
being, which .ekißs, no where and every
where. Bfit 'if ever the occasion calls
for it, I trust that the supreme court
will not neglect doing the-great i^if
chief of faring this„constitution, which
can be done much better by their delib
erations, titan b'f refortirig to what are
called revqltitionary measures.
The hon. member ffdm North-Caro
lina, forepreß bfthe delicate situation
in which he is placed, thinks he has
discovered a new argument in favour'
of the vote which he is inftru&ed tp
give. As far' h's I can epter into hig
ideas and trace their progress, he feesfe
to have affumeT the pofftion; whiett
Was to be proved, and then searched
through the constitution, not 'to dis
cover whether the legislature have ' the
right contended for, blit whether 'ad-,
mittirig t^em to phfTefs it, there tf/ay
not be something which might comport
with that idea, rffiall Rate °t'he' hon
ourable member's argument, as I
understand it, and if mistaken, pray to
be correded.—He read to us that
clatife which relates to impeachment,
and comparing it with that which fixes
the tenure of judicial office, has obser
ved that this clause must relate solely
to a removal by the executive power,
Whose right to remove, though not
indeed any where mentioned in the con
stitution, has been admitted in a practice
founded on legislative conftruffion.
1 hat as the tenure bf the office is
during good Behaviour, and as.the clause
refpeaing impeachment does not
Specify misbehaviour, there 'is evidently
a cause of removal, which ' cannot be
reached by impeachment, and of course
(the executive not being permitted to
remove) the right must rieceffarily de
volve on the legislative. Is this the
honourable member's argument ?'lf
it be, the reply is very simple: Mif
behaviouris not a term known in our law
—The idea is expressed by the word
mif/emeanor : which wold 4 is in the
clause quoted refpe&ing impeach
ments. Taking therefore the two to
gether, and-fpeaUng plain old Engliffi,
the constitution fays : "The judges
Shall hold their, offices so l°ng as they
demean themselves tfell, but if they
Shall miffemean, if they fliall on impeach
ment be convicted of misdemeanor,
they Shall be removed." Thus, fir,
the honourable member will find that
the one clause is just as broad as the
other. He will fee therefore, that the
legislature can assume no right from;
the deficiency of either, and will find'
that this clause which he relied on,
goes, if lightly underßood, to the
confirmation of our dodrine.
Is there a member of this boufe*
who can. lay his h^nd on his heart
and fay that con6Rently with the plain
words of our constitution, we have a
right to repeal this law ? I believe not.
—And if we undertake to construe
this constitution to our purposes, and
fay that public opinion is to be our
judge, there is an end to all constitu
tion. -1o what will not the danger
ous dc&rine lead : Should it io day be
the popular wish to destroy the firft
magistrate, you can destroy him. And
should lie to-merxow lie able to con
ciliate to him the popular will, and
lead them to wifli for your deßrußion,
it is easily effected. Adopt this princi
ple, and the whim of the moment will
not only be the law, but the constitu
tion of our country.
The gentleman from Virginia ha c
mentioned a greatnation brought to tie
feet of one of her Servants. But why
is She in that situation ? Is it not because
popular opinion was called on to decide
every thing, until those, who wore bay
onets decided for all the rest. Our fan.
afon'is peculiar. At present our na
tional compad can prevent a Rate fron
their offices, consequently aaapp
a single judge of his office, to b frr
cifed by him for the people of A&ri 7 :
to which exercise his independence is ar
necessary as his office.
The gentleman from Virginia h^ on
this occasion likened the judge to a
bridge, and to various other objeds ;
but I hope for his pardon, if while I
admire the lofty flights of bis elo
quence, I abftainffrom noticing obser
vations which I conceive to be Overly