United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-04-03 00:00:00, page 4

Does the power rehJe in the Rates ?
Has the legislature of a Rate a right to
declare an ad of Congress void ? This
would be erring upon 'the oppfcfite ex
treme. It would be placing the gene
ral government at the feet of the ftatt
governments. It would be allowing
one member of the union to control ail
the 'reft, ,It would inevitably lead to
citil diflention and a dissolution of the
general government. Will it be pre
tended that the date courts have the ex
clu^e right of deciding upon the va
lidity of our laws ?
I admit they have the right to de
clare an a& of Congress void. But this
right they enjoy in practice, and it ever
essentially must exiif fubjed to the revi
sion and control of the courts of the U.
States. If the Rate courts definitively
possessed the right of declaring the inva
lidity of the laws of this government,
it would bring us in fubjedion to the
Rates. The judges of those courts, be
ing bound by the laws of the Rate, if a
Rate declared an ad of Congress uncon
ftiaitwnal, the law of the Rate would
oblige its courts to determine the law
invalid. This principle would also
destroy the uniformity of obligation
upon all the Rates, which should at
tend every law of this government. —
If a law were declared void in one
state, it would exempt the citizens of
that Rate from its operation, whilst o
bedience was yielded to it in the other
Rates. Igo farther, and fay, if the
Rates or state courts had a final power
of annulling the a&s of thisgovernment,
its miserable and precarious exigence
would not be worth the trouble of a
moment to preserve. It would endure
but a fhorQroe, as a fubjed of deri-'
son, and wafting into an empty ihadow
would quickly vanilh 'from our fight.
Let me how alk if the power to de
cide upon the validity of our laws re
sides with the people.? Gentlemen can
not deny this right to the sovereign
people. I admit they possess it. But if
at the fame time it does not belong to
the courts of the United States, where
does it lead the people ' It leads them
to the gallows. Let us foppofe that
Congress, forgetful of the limits of their
authority, pals an unconditutional law.
They lay a dired tax upon one state
and impose none upon the others. The *
people of the state taxed, contest the
validity of the law. They forcibly re
sist its execution. They are brought by
the executive authority before the
courts upon charge of treason. Thp
law is unconstitutional, the people have
done right, but the court are bound by
the law and obliged tp pronounce upon
them the sentence which it inflids. De
ny to the courts of the U. States, the
power of judging upon the constitu
tionality of our laws, and it is vain to
talk of its existing elsewhere. The in
fractors pf the laws are brought before
these courts, and if the courts are im
plicitly bound, the invalidity of the
laws can be no defence. There is how
ever, Mr. Chairman, Rill a stronger
ground of argument upon this fubje^t.
I (hall feleft one or two cases to illus
trate it. Congress are prohibited from
paffiw a bill of attainder ; it is also de
clared in the constitution that " no at
tainder of treason shall work corruption
of blood or forfeiture,except during the
life of the party attainted." Let us
suppose that Congress pass a bill of at
tainder, or they ena& that any one at
tainted of treason shall forfeit to the
life of the U. States, all the chute which
he held in any lands or tenements.
The party attainted is seized and
brought before a federal court, and an
^ward of execution puffed against him.
He opens the constitution and points to
this line, " nb bill of attainder, or expos
faflo law-fliall.be paded." The attor
ney for the United States reads the bill
of attainder.,.
,The court are bound to decide, but
they have onl, the alternative of pro
nouncing the law or the constitution invalid.
It is left to them, only to fay that the
law vacates the constitution, or tig con
stitution avoids the law. So in the
other case Rated, the heir after the death
of his ancestor, brings his ejedment in
one of the courts of the United States
to recover his inheritance. The law by
vhich it is confifcated is shewn. The
conttitutibn gave no power to ,ass such
a law. On thecontrary it expressly de
nied,it tp the government. The title of
the heir is relied on the constitution,
the title of the government on the law.
The effedof one ceftroys the effect of
the other ; the court inuft determine
which is effe&ual.
There are many bther cases, Mr.
Chairman, of ariimilar nature, to which
I might allude. There is the case of
the privilege of Habeas Corpus^ which
(Concluded from second Page.)
Nothing can oe more absurd than to
contend that there is a practical re
straint, open a political body who are
aufwerable to none b*^ themselves for
the violation of the restraint, and who
can derive from the very a& of violation
undeniable juftifeatien of their conduct.
If, Mr. Chairman, you meap to ha<rf
a conftitr: ton, you muQ difeover a pow
er.to which the acknowledged right is
attached, of pronouncing the invalidity
of the acts of the legislature, which con
travene it: internment.
cannot be fofpended but in times of re
bellion or of invasion. Suppose a law
prohibiting the issuing of the writ at the
moment of profound peace, if in such
case the writ were demanded of a court,
could they fay, it is true the legislature,
were restrained from palling the law,
suspending the privilege of this writ, at
such a time as that which now exists ;
but their mighty power has broken the
bonds of the constitution, and fettered
the authority of the court. lam not,
Sir, disposed to vaunt, but Handing on
this ground I throw the gauntlet to afiy
champion upon the other fide. I call
upon them to maintain, that in arcbl
lifion between a law and the conftitn
tion,the judges are bound to support the'
la*, and annul the constitution. Can
the gentlemen relieve themselves from
this dilemma ? Will they fay, though a
judge has no power to pronounce a law
void, he has a power to declare the con-
Ritution invalid.
The doTrine for which I am contend
ing is not only clearly inferable from
the plain language of the conft<ution,
but by law Ms been expressly declared
and established in practice since the ex
igence of the government.
The zd fe&ion of the 3d article of the
constitution expressly extends the judi
cial power to all cases writing under the
constitution, the laws, &c. The pro
vision in the 2d clause of the 6th arti
cle leaves nothing to doubt. “ This
constitution and the laves of the U. States
tohichjhall be made in, urfuance thereof^e.
shall be the supreme law of the land."
The\ constitution is absolutely the su
preme law. Not so of the ads of the
legislature.— -Such only are the law of
the land as are made in pursuance oft)*
constitution.
I beg&he indulgence of the commit
tee one moment, while I read the fol
lowing provision from the 25th feaion
of the judicial a^ of the year 1789 :—
" A final judgment or decree in any
suit in the highest court of law or equity
of a state in which a decision in the suit
could h had, ivbcre is drawn in question
the validity of a treat, or statute of, or an
authority exe % cifed under the United States,
and the decision is against their validity file.
may be re-examined and reversed or
affirmed in the supreme court of the
United States upon a writ of error." —
Thus, as early as the year 1789, among
the firft ads of the government, the le
gislature explicitly recognized the right
of a state court to declare a treaty, a
statute, and an authority exercised un
der the United States, void, fubjed to
the revision of the supreme court of the
United States ; and it has expressly giv
en the final power to the supreme court
to affirm a judgment which is agamft
the validity either of a treaty, statute,
or an authority of the government.
I humbly trust, Mr. Chairman, that
I have given abundant proofs from the
nature of our government, from the
language of the constitution, and from
legislative acknowledgements, that the
judges of our courts have the power to
judge and determine upon the consti
tutionality of our laws.
Let me now suppose that in our frame
°f government, the judges are a check
upon the legislature : that the constitu
tion is deposited in their keeping. Will
you fay afterwards that their existence
depends upon the legislature ? That
the body whom they are to check, has
the power to destroy them ' Will you
fay that the constitution may be taken
out of their hands, by a power the most
to be distrusted, because tba only power
which could violate it with impunity ?
Can any thing be more absurd than to
admit, that the judges arc a check upon
the legislature, and yet to contend that
they exist at the will of the legislature ?
A check must necessarily imply a power
commensurate to its end. The politi
cal body designed tocheck another must
be independent of it, otherwise there
can be no check. What check can there
be when the power designed to be
checked can annihilates the body which
is to restrain it ?
I go farther, Mr. Chairman, and take
a stronger ground. I fay in the nature
of things the dependence of the judges
upon the legislature, and their right to
declare the ads of the legislature void,
are repugnant, and cannot exist togeth
er. The doctrine, fir, supposes two
rights—firft, the right of the legislature
to destroy the office of the judge, and
the right.of the judge to vacate the ad
of the legislature. You have a right
to abolish by a law the offices of the
judges of thecircuit courts. They have
a right to declare your law void. It
unavoidably follows, in the exercise of
these rights, either that you destroy
their rights, or that they destroy yours.
This dodrine is not an harmless absurd
ity, it is a most dangerous heresy. It
is a do&rine which cannot be pra&ifed
without producing, not discord only,
but bloodshed. If you pass thebill upon
your table, the judges have a constitu
tional right to declare it void. I hope
they will have courage to exercise that
right ; and if, fir, I am called upon to
take my fide, standing acquitted in my°
conscience and before thy God, of all
motives but the support of the Consti
tution ofmy country, I shall not trem
ble at the consequences !
The constitution may have its ene
mies, but I know that it has also its
friends. I beg gentlemen to pause be
fore they take this rash step ! There
are many, very many who believe, if
you strike this blow, you inflid a mor
tal wound on the constitution. There
are many now willing to spill their
blood to defend that constitution. Are
gentlemen disposed to rifle the conse
quences ? Sir, I mean no threats—l
have no expedition of appalling the
flout hearts of my adversaries ; but if
gentlemen are regardless of themselves,
let them confider their wives and chil
dren, their neighbours and their friends.
Will they rift civil diffention ? Will
they hazard the welfare ; will they
jeopardize the peace of the country to
lave a paltry film of money, less than
30,000 dollars ?
Mr. Chairman, I am confident that
the friends of this foeafare are not ap
prized of the nature of its operation)
nor sensible of the mifehievous conse
quences which are likely td attend it.
Sir,the morals ol your people,the peace
of the country, the liability of the gov
ernment, rest upon the maintenance of
the independence of the judiciary. It
is not of half theimporthuce inEngland
that the judge, should be independent
of the crown, as it is with us, that they
should be independent of the legislature.
Am I alked, would you render the
judges superior to the legislature? I
answer, No—but co-ordinate. Would
you render them independent of the
legislature ? I answer, Yes—independ
ent of every power on earth, while they
behaved themselves well. The effenral
interests, the permanent welfare of so
ciety, require this independence. Not,
fir, on account of the judge ; that is a
small consideration, but on account of
those between whom he is to decide.—
You calculate op the weaknesses of hu
man nature, and you fuft'er the judge
to be dependent on no one, left he
should be partial to those on whom he
depends. Just ce does not exist where
partiality prevails. A dependent judge
cannot be impartial. Independence is
therefore essential to the purity of your
judicial tribunals.
Let it be remembered, that no pow
er is so sensibly felt by society, as that
of the judiciary. The life and proper
ty of every man, is liable to be in the
hands of the judges. Is it our great in
terest, to place onr judges upon such
high ground, that no fear can intimi
date, no hope can seduce them ? the
present measure humbles them in the
chift, it prostrates them at the feet of
fadion, it renders them the tools of
every dominant party. It is this effe&
which I deprecate, it is this conse
quence that I deeply deplore. What
does reason, what does argument avail,
when party spirit presides ? Subjffl
your bench to the influence of thisfpir
it, and justice bids a final adieu to you:
tribunals. We are a&d, Sir, if the
judges are to be independent of the peo
ple ? The question presents a falfe and
delusive view. We are all the people.
We are, and as long as we enjoy our
freedom, we shall be divided into par
ties. The true question is, shall the ju
diciary be permanent, or flu&uate with
the tidf of public opinion ? I beg, I
implore gentlemen,to confider the mag
nitude and value of the principle which
they are about to annihilate. If your
judges are independent of political,
changes, they may have their prefer
ences, tut they will not enter into the
spirit of party.' But let their existence
depend upon the support of the power
of a certain set of men, and they cannot
be impartial. Justice will be trodd&
Under foot. Your courts will lose all
public confidence and refpeft.
The judges will be fupporttd by their
partizans, who in their turn will expe&
impunity for the wrongs and violence
they commit. The spirit of party will
be inflamed to madness ; and the mo
ment is not far off, when this fair coun
try is to be desolated by civil war.
Do not fay, that you render the
judges dependent only on the people,
you make them dependent ' on your
President. This is his treasure. The
fame tide of public opinion which chang
- es a President, will change the majori
ties in the branches of the legislature.
The legislature will be the instrument
of his ambition, and he will have the
courts as the instrument of his ven
geance. He uses the legislature to re
move the judges, that he may appoint
creatures ofhis own. Io effed the
powers of the government will be con
centrated in the hands of one man,who
will dare to ad with more boldness be
cause he will be sheltered from respon
sibility. The independence of the ju
diciary was the felicity of our constitu
tion. It was this principle which was
th curb the fury of party upon ftidd'en
changes. The firft moments of power,
gained by a struggle, are the most vin
dictive and intemperate. Raised above
;the storm, it was the judiciary which
was to control the fiery zeal, and to
quell the fierce passions of a victorious
faction.
We are Handing on the brink of that
revolutionary torrent, which deluged in
blood one of the faireft countries of
Europe.
France had her national assembly,
more numerous and equally popular
with our own. She bad her tribunals
of justice, and her juries. But the le
Day School for Misses ;
Commences the ift of 'April
;as usual ; Price 18/ per quarter: Time
6 hours per day.
Half Day School, for Misses ;
Begins the ift of April; Price rtf
per quarter; Time 3 hours per day ;
Iforenoon or afternoon, as fhav tujt con
venience. GEORGE RICHARDS.
I Portsmouth, March 23, 1802.
—o—
— Morning School for MISSES
WILL be opened in thecham
bcr of the brick School-House,
on the nineteenth of April.
Attendance—one hour and a
half, beginniog at 6 o'clock.
Price, 13/6 a quarter —15/ for
thole who may chose to be furoifhed by
the inftruaors with paper, ink, an I pens.
A few Lads may be admitted.
SAMUEL & AMOS TAPPAN.
Household Furniture and ma
hy other things.
All Persons indebted to said
estate are requested to make payment be
fore said vendue or their accounts will
be put in /pit.
ruptcy awarded^ ifaed againfl
him. consisting of
A Good House, Barn,and sev
eral well finished out-houses, with
upwards of Fifty Acres ofLand adjoining,
picafantly situated on the great post road
from PoTtfmouth to Boftoii^nd well cal
culated for a Taverner, Trader, or Me
chanic, within about 80 rods of the head
of the tide. —ALSO—
JEREMIAH FOGG, Aflignee.
Kenfinoton, March 17.
Clover and Herds-Grass
SEED FOR SALE BY
Stephen Pearfe,
opposite the State-House.
Portsmouth, March 20_
giflature and the courts were but the ia
ftruments of her deftrudion. Acts of
proscription and sentences of baniili
ment and death were passed in the cabi
net of a tyrant. Prostrate your judges
at the feet of party, and you break down
the mounds which defend you from this
torrent.—l have done—-I should have
thanked my God for greater powers to
resist a measure so deftrudive to the
peace and happiness of the country. —*
My feeble efforts can avail nothing—
But it was my duty to make them.—
THE MEDITATED BLOW IS
MORTAL AND FROM THE
moment it is struck, we
MAY BID A FINAL ADIEU TO
IJJE CONSTITUTION!!!
On easy terms, at a long credit,
or Let advantageously,
A Valuable and well situated
FARM, in Pinehill,four and a half
miles from Berwick Landing, containing
about 130 Acres-—with every building
necessary for the accommodation of the
purchaser. It is indofed with a large
proportion of stone teall,has a good orch
ard, convenient pasturage, is well water,
ed, and the main road runs diredly thro'
the centre of it. Pwffeffion may be ta
ken in either case (whether fold or let)
on the firft or twentieth of April next.
For further particulars enquire at the sub
scriber's store in Portsmouth, at or his
dwelling.houfe inßerwick.
, FOR SALE BY
job Harris,
Clover and ) qTT TA
Herds Grass J
of an excellent quality.
Portsmouth, March 13.-
j -c^Z^'Z^c^c^c—nLfocZ^cfocfo/^GZJ.
+YOUNG LADIE's ACADEMY ±
IN PORTSMOUTH.±
+ ++++++„±
I Mr. ALDEN has it in contem
} plation to resume his rinftrudions±
+ for young ladies, on the fifth of|
t A P riL . 1
f The place, times, and terms oft
I attendance will be as they were the ±
j last season. , ~|
Those young ladies, who have j
± a desire to become pupils in this in-±
l ftitution will please to give early
I notice.^
At Public Vendue,'
On Wednesday the 7th day of A
pril next ati o'clock P.M.at the
house of Nathaniel Dodge
Ham,tonfalls, all the real efiate
of the said Dodge, in conse
quence of a Commtfion of bank-
Wednesday Next.
JQNA. HAMILTON,jr.
March 27, 1802.
AUCTION.
TO BE SOLD
SCHOOL,
TO ^E SOLD
' KINE POX-
is large and well suited to tie Season
The, have also, .4fro Pieces
Russia & Ravens Duck,
and Russia SHEETINGS -al!
which are offered for sale at the lowest
prices. Dec. 12, ißoi.
of a superior manufaaure and formed ia
the newest fafhion.
WfOTICE is hereby given to
the creditors of NATHANIEL
Dodge of Hamptonfails against whom a
Commission of Bankruptcy has been du
ly issued and proceeded on, that any of
laid creditors may be heard if they shall
think fit, before ihe fubferiber one'of
the Circuit Judges of the United States
for the firft Circuit, on Monday the
nineteenth day of April next, at eleven of
the clock in the forenoon, at the office
of William Parker, Esq. in Exeter
in said diftria,agaiuft making and allow,
g certificates of tis charge to fiid bank
rupt, before which time exceptions to
said allowance may be exhibited.
JEREMIAH SMITH.
Exeter, March 25th, 1802.
" Te have the poor with you always, and
whenever ye will ye may do them geod.”
DR. Spalding presents his
compliments to the poor bf the
town of Portfmouth|& its vicinity,inform
ing them that he will inoculate & attend
them with the kine pox gratis. Those
who with to avail themselves of this op
portunity, to secure themselves and fami
lies from the dreadful effeds of the small
pox, will, on Saturdays,eave at his (hop,
in writing, their names and the parifli to
which they belong ; the next Saturday
they will receive answers, and the time
for inoculation be appointed.
Samuel Hill,
Informs his friends and custom
ers that he Imported last Fall,
A general 4ffrtment of
FISHING GEAR
irtich is now read, so sale, b, wholQ
and retail, cheap for Case or amoved
Credit.—PlZ.
SALMON Netts and Herring
ditto, of different fiZes ; Hard-head
Netts ; Salmon Twine; Herring ditto;"
Sewing ditto, and Hard-head ditto; 18,
I S> ' 2 , 9' thread Fishing Lines ; Squid
Lines ; Large Cod; Large Quarter Mid
dling ditto ; small ditto ; Hoofos; Mack
arel ditto ; Bar Lead.
Dr. Spalding,
Inoculates for the Kine Pox.
Dr. Dwight,
WILL inoculate for tteKine
Pox, having obtained re
cent infe&idq, from a source in
disputable. March 27th.
FIRE BUCKETS Miffing ,'
A Number of Buckets belong,
ing to the Engines and private in
dividuals used at the late fire are miffing.
Any perfors having knowledge of the
fame, are requeued to give information
thereof to the Seleamen. \
PoatsMouTH, March ft'
United States,)
New Hampjhire difoia.)
A School will be opened, in
Deer-freet, on the sth A
pril lor the jiufttuaion of YOUNG
LADIES, by MARY HART.
March 27, ISO 3.
-LOST !
KNOWN to be stolen Two
TEA SPOONS, marked
T. G. S. onleG they are returned to the
owner the person who took them (hall be
made public. .March 27.
as usual.
oioo Q,. Pollock FISH.
Hyfon, Souchong & Bohea TEA,
by the Chest or less quantity.
Joseph & Joshua Haven
Have just received an additional
FOR SALE,
AVery handsome MARE„
not yet four years old, with
laddie and bridle Complete.
Enquire of the Printers.
TO BE LET,,
A Convenient STORE in
the north part of the town
—inquire of JOHN HILL.
Ports month, March 20.
May be had at the fame Place,
English & Weft-lndia GOODS
f^fjof
Real American made
Their afvrtment of
European & India
GOODS,
Beaver Hats,