United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-03-27 00:00:00, page 2

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there is one thing for which I will not'
I cannot forgive him. I mean his at
tempt to disturb the affies of the dead—
to disturb the alhes of the great and 1
good Washington. Sir, I might de
grade by attempting to'eulogize this
iiluitrious character. The work is in
finitely beyond my powers. I will on
ly fay that as long as exalted talents &
virtues 'confer honor among men, the
name of Washington will be held in
veneration.
After, Mr. Chairman, the honorable
member had exliaufted one quiver of
arrows against the late executive, he
opened another equally poisoned against
the judiciary. He has told us, Sir, that
when the power of the government was
rapidly passing from federal hands after
We had heard the thundering voice of
the people which dismissed us from their
service, we ere&ed a judiciary, which
ite expected would afford us the ffielter
of an inviolable fan^uary, The gen
tleman is deceived. We knew better,
Sir, the characters who were to succeed
us, and we knew that nothing was (ac
red in the' eyes of infidels. No, Sir, I
never had a thought that afiy thing be
longing to the federal government was
holy in the eyes of thole gentlemen. I
could never therefore imagine that a
fan&uary could be builtup which would
not be violated. I believe these gentle
men regard public opinion beacufe their
power depends upon it, but I believe
they refped no existing establishment of
the government, and if public opinion
could be brought to support them, 1
hive no doubt they would annihilate
the" whole. I (hall at present only fay
father on this head,that we thought the
reorganization of thejudicial system an
ufeful measure, arid we considered it as
a duty to employ the remnant of our
power to the best advantage df the
country.,
The Hon. gentleman expressed his
joy that the Constitution had at last be
come sacred in our eyes—-that we form
erly held that it meant every thing or
nothing. 'I believe, Sir, that the Con
stitution formerly appeared different in
cur eyds frorfi what it now appears in
the eyes of the "dominant party. We
formerly fate in ft the principles of a
fair and goodly creation ? We looked
upon it as a source of peace, of fafety,
of honor, and of prosperity to the coun
try. But hoftlfe view is changed :
it is the inftrrimerit of wild and dark
deßrudiori. It is a weapon which is to
prollrate every eftablilhment, to which
the nation owes, the 'Unexampled bltf--
lings Which it enjoys. , . ;
The present Rate of the country is an
unanswerable commentary upon our
conftrudion of the constitution. It is
true that we made it me^n much, and
I hope, Sir, we ihall riot ^ taught by
the present administration that it can
mean even worse thrih nothing.
The gentleman has.not confined his
ariimadverfions to the individual eftab
lifhmerit, but hAs gohe To far as to ,
make the judges, the fubjed of person
al invedive. They have been charged
with having transgressed the bounds of
judicial duty, and become the apostles
of apolitical fed. We have heard of
*their travelling about the country for
little other pn/pofe than to preach the
federal doctrines to the people.
Sir, I think a judge should never be
a partizan. No man would be more
ready to condemn a judge who carried
his political prejudices or antipathies on
the bench. But I have still to learn
that such a charge can befuftained a
gainst the judges 'of the united States.
The Cenftittitiori is the Supreme law
of the land; and they have taken paths
in their charges to grand juries to unfold
and explain its principles. Upon limi
far occasions they have enumerated the
laws which compote bur criminal code,
and when foriie of those laws have been
denounced by the enemies of the ad
ministration as uncoriftitucional, the
judges may nave felt jliemfelves called
upon to exprelk their judgments upon
that point and the reaforis OF theft opih
ions. # §
So far, but no farther, I believe the
judges have gone ; arid in going thus
far, they have done nothing moke than
faithfully difeharge their dutfa
But if, Sir, they have offended a
gainft the constitution bt laws of the
country, why are they not ithpcathed?
The gentleman now holds the (word ofc
justice ; the judges are not a.priviledg
ed order ; they hate nd Shelter but
their innocence. f
But in any view are the fins of the
former judges to be fattened upon the
new judicial system ? Would you anni
hilate a system, because some men un
der part of it had aded wrong. The
constitution has pointed out a mode of
puhiffiing and removing the men, arid
does riot leave,this miserable pretext
for the Wanton exercise of powers which
is now cohtemplated.
The honorable member has,thought
himfelf jußified in making a charge of ;
a lerious arid frightful nature against ;
the judges. They have been repre
sented going about fearchirig out vic
tims of the feditioh law: , But no fid
has been Rated—no ptoof fids been ad
duced, and the gemleiri^ri fauft excuse
me farf^Pg my,belief to the charge
to •
vis fußained by Wronger and better
ground than affertidh.
If, however, Mr. Chairman, the eyes
of the gentleman are delighted with
victims, if objects of misery are grate
ful to his feelings, let me turn his view
from the walks of the judges to the
trad of the present executive. It is in
this path we fee the real victims of Rern
—uncharitable, unrelenting power. It
is here fir, we fee the soldier who fought
the battles of the revolution ; who
fpilt his blood and wafted his strength
to eßablilh the independence of his
country, deprived of the reward of his
services, and left to pine in penury and
wretchedness. It' is along this path,
that you may fee helpless children cry
ing for bread, and gray hairs finking
in sorrow to the grave ! It is here
that no innocence, no merit, no truth,
no services dan save the unhappy feda
ry, who does not believe in the creed of
those in power. I have been forced
upon this fubje& and before T leave it,
allow me to remark that without en
quiring into the right of the President
to make vacancies in office, during the
recess in the Senate, but admitting the
power to exist, yet that it rtever was
given by the constitution to enable the
chief magistrate to punish the infalls,
to revenge the wrongs, or to indulge
the antipathies of the man. If the dis
cretion exiftS, I have no helitation in
faying that it is abused when excrcifed
'from any other motive than the public
good. And when I fee the will of a
President-precipitating from office, men
of probity, knowledge, and talents, a
gairift whom the community has no
complaint, 'I confider it as a wanton
and dangerous abate of power. And
when I fee men who have been the vic
tims of this abuse of power, I view
them as the proper objeds of national
sympathy and commiseration.
Among the causes of impeachment
Against the judges, is their attempt to
force the foyereighties of the Rates to
bow before them. We have heard them
called an ambitious body politic ; and
the fa& I allude to, has been considered
as full proof of the inordinate ambition
of the body. .'
Allow me to fay, Sir, the gentleman
knows too much not to know that the ,
judges are not a body politic. He sup
posed, prehaps, there was an odium at
tached to the appellation which it might
serve his purposes to conned with the
judges. But, Sir, how do you derive
any evidence of the ambition of the
judges, from their decision that the
dates under our federal compad were
compellable to do justice ? Can it be
(hewn, or even said, that the judgment
of the court was a falfe conftrudion of
the constitution ? The 'policy of later
times on this point has altered the con-
Ritution, and in fay opinion has oblit
erated its faireft feature. lam taught
by my principles that no power ought
to be superior td justice, It is not
that I wiffi to fertile states humbled in
;duft and allies; it is not that I with to
fee the pride of Any man flattered hy
their degradation; but it is that I wish
to fee the great and the small, the sov
ereign and the fubjed, bow at the altar
of justice, and submit to those obliga
tions from which the deity himfelf is not
exempt. What was the effed of this'
provision in the constitution ? It pre
vented the Rates being the judges i'p
their own cause, and deprived them of
the power of denying juftce. Is there
a principle of ethics more clear than
that a man ought not to be a judge in
his own cause ; and is not the principle
equally ftrong,when applied not to one
Irian, but to a colle&ive body ? It was
the liappinefs of our fitnation which en
abled us to force the greatest Rate to
submit to the yoke of justice, and it
would have been the glory of the coun
try in the femoteft times, if the princi
ple in the Conrtitutibri had been main
tained.- What had thi Rates to dread ?
Could they fear injustice when oppos
ed t'o a feeble individual ? Has 2 great
man retifon to fear from a poor ope ?
And could a poterit state be alarmed
by the unfounded claim of a single ber
fon ? For my part I have always tho't
that an independent tribunal ought to
be provided t'o judge on the claims
against this government. The power
ought not be in out own hands. We
are not impartial, And are liable with
out our knowledge tb do wrong. I
never could fee why the whole commu
nity fhotild not be bound by as strong
an obligation to do justice to an indi
vidual, as one man is bound tb do ju
stice tb another. , :i . : •
, In England the fdbje& has a better
chance for jtiftice against the fdvereign,
than in this country a citizen has a
gainst a Rate.. The crown is never its
own arbiter, drid those who fit in judg-i
;merit have no iritereft in the event of
I their decifion'
The judges; fir, have been criminat
ed for their conduct in relation to the
sedition a& and have been charged with
;fearching for victims who were sac-
Irificed under it. The charge is easily
made, but has the gentleman the means
of supporting it? It was the evident
design of the gentleman to attach the
odium of the sedition law to the judi
ciary ; on this score the judges are
futely innocent— They did not pass the
a& ; the legislature made the law, an i
they were obliged by! their oaths toex
ecute it. . The judges, decided th; law
to be couftitutional, apf i I am not now
going to. agitate the queftiop. I did
hope when the law pailed, that its ef
fe& Would be ufeful, Tt did. not touch
the freedom of ipeech—arid w^'s Qe
ligned only to retrain ttye enormots
abuje of tbe^rty. It went no farther than
to punith Malicious falfeboodfo. published
with the kicked intention, of deftreyirig
the government. No innocent r ma.n ev
er did or could have fuffered under the
law. No punilhment could be inflict
ed till a jury was fatistied that a pub
lication was falfe, and that the party
charged, knowing it to be falfe, had pub
lilhed it with an evil design.
The mif-condud of the judges, how
ever, on this fubjed, has been consider
ed by the gentleman the more aggra
vated, in an attempt to extend the
principles, of the Sedition Ad, by an
adoption of those of the common law.
Connected with this fubjed, such an at
tempt was never made by the judges.
They have held generally, that the
cenriitUtion of the United States was
predicated Upon an exiting common
law. Os the fouhdriefs of that opinion,
I never had a doubt., I should scarce
ly go too far, were I fay, that ftripc of
the common law, there would be nei
ther constitution por 'government.—
The coriftitution is unintelligible with
out reference 'to the common law.—
And were we to go into dhr courts qf
justice with the mere ftatiites of the|
United States, not a Rep could be talc-I
eu, not even a contempt 'could be pun-,
ifhed. Thole ffatutes prescribe noi
forms of pleadirigs, they contain no|
principles of evidence, they furnifh no;
rule of property.. If the common law
does not exist in mod cases, there is no I
law but the will of the judge.,
I have never contended, that the I
whole of the common law attached to |
the constitution, but only such parts as!
were consonant to the nature and spirit ;
of our government. We have nothing!
to do with the law of the ecclesiastical
eßablißiment, nor with any principle
of monarchical tendency. What be
longs to us, and what is Unsuitable, is
a question for ,the found diferetion of
the judges. The principle is analagous
to one which is found in the writings of
all jurilte arid commentators. When
a coloriy is planted, it is established fub
jed to such parts of the law of the
mother country, as are applicable to its
situation. .When ourforefathers coloniz
ed the wilderness of America,they bro't
with them the common law of Eng
land. They claimed it as -their birth
right, and they left it as the most val
uable inheritance to their children
Let me fay, that this fame common
law, now so much despised and vili
fied, is the cradle of the rights and
liberties which we now enjoy. It is to
the common law we owe our distinc
tion from the colonists of, France, of
Portugal, and of Spain. How long is
it since we have discovered the .malig
nant qualities Qich are now ascribed
to this law? Is there a Rate in the
Union which has not adopted jt, a 'd
in which it is not in force ?, Why is it
refufed to the federal conftituiion ? Up
on the fame, principle, that ever, poorer
'is denied qubicb tends to invigorate the gov
ernment. Without this law,, the consti
tution becomes, what perhaps many
gentlemen wish to fee it, h dead letter.
For ten yeArs ft has heeii the doc
trine of our courts, that, the common
law was in force, and yet can gentle
men fay, that there has been a vidim
who has buffered under it ? Many have
experienced its protection —none can 4
complain of its oppression.
In order to demonstrate the aspiring
ambition of this body politic, the judi
ciary, the hon. gentleman Rated with
much emphasis and feeling, that the |
judges had been hardy enough to fend ;
their mandate into the executive cabi
net. Was the getleman, fir, acquaint
ed with the fa& when he made his ftate
tnent ? It differs eßentially from what I I
know I have heard Upon the fubje& ; !
I Ihall be allowed to Rate the fa?.
Several commissions had been made
but by the late admitijftratiori, for jus
tices of the peace of this territory. The
tommiffions were complete—they were
signed and sealed, and left with the
clerks of the office of Rate, to be hand
ed to the perfohs appointed. The new
tidminißration found them on the
clerk's table, arid thought proper foi
withhold them; These officers are notl
dependent on the will of the Prefidentl
The persons named iri the commissions,
considered that their appointments were ,
complete, and that the detention of their
commissions was wrong, rind riot jufti
fied by the legitimate authority of the
executive. ~ They applied to the su
preme court fora rule upon the secre
tary of Rate, to ffiew cause why a man-}
damus should not issue, commanding
him to give up the commissions. Let 1
me ask. Sir, what could the judges do ?;
The rule to (hew cause was a master ,
of course upon a riew point, at the leaft,'
doubtful. To have denied it wouldi
have been to (hut the doors of justice
against the parties. It concludes noth
ing, neither the jurifdidion nor the re-*
gulririty of the aft Ttiejudges didj
their duty. They gave an honorable
"proof of their independence. They
Jißened to the complaint of an indivi
du3l againit your President, and have
ihewn themselves disposed to grant re
dress against the greatest man in the
government : if a wrong has been com
mitted and the conllituitonal authori
ties their Interference, will gentlemen
fay, that the Secretary of Rate, or even
'the prefideitt is not fubjed to law ? And
if they violate the law where can we
/apply for redress but to our courts of
juitice? But fir, @if nat true that the
judges ilfyed the mandate to th'eir exe
cutive :, they have only called upon the
Secretary of State to lew them that
what he has done is right. It is but an
incipient proceeding, which decides
nothing..
Mr. Giles rose to explain.—He said
that the gentleman from Delaware
had ascribed to him many things which
he did not fay, and had afterwards un
dertaken to refute them. He had on
ly said that mandatory process had is
sued ; that the course parfued by the
court indicated a belief by them, that
they had jurifdidion, and that in the
event of no cause being (hewn a man
damus would issue.
Mr. Bayard,
I Rated the gentleman's words as I
took them down. It is immaterial
whether the mistake was in the gen
tleman's expression, or in my under
handing. He has a right to explain,
and Twill take his position as he now
I Rates it. I deny, Sjr, that mandatory
I procefs has inued. . Such process would
tbe imperative, and fuppdfe a jurifdicion
Ito exift'; the proceeding, which has
I taker , place js no more than notice of
, the application for justice made to the
j corirt, and allows the party to show,
j either that no wrong has , peen committ
-led, or that the court has no jurifdicion
iover the fubje&. Even, fir, if the rule
[were made absolute, arid the manda-
Imus iiTued, it would not be definitive,
I but it would be competent for the fe
itretary in a return to the writ, to juf
tify the aft which has been done, or to
(hew that it is riot a fuhjeC of judicial
cognizance.
„ It isriot till after an insufficient re
turn that a peremptory mandamus if
.fes. In this tranfaCion, so far from
feeing any thing culpable in the con
du& of ydur judges, I think, fit, that
they have given a strong proof of the
value of that conftitutiorial provision
which makes them independent. They
are not terrified b, the frowns of executive
fe&wer, and dare to judge between the
rights of a citizen and the pretentions
of a'prefidait;*
I believe,; ME, Chairman, I have|
gone through most of the preliminary
remarks , which the honorable gentle
man thought proper to make before he
proceeded to the confideratiori of those
points which properly belong to the
fubjeft before the committee. I have
not supposed the topics I, have been
difcufling had ahy conneAibn with the
bill on your table '; but I felt it as a duty
not to leave unanswered charges against
the former administrations arid olir
judges, of the most infidiods tendency ;
which I know to be unfounded,, and
,which weie calculated and designed. to
influence the decision on the measure
now proposed. Why, Mr. Chairman,
has the present subject been combined
with the army, the navy; th'e internal
taxes, and the sedition law' ?Was it to
involve them in one, common odium,
and to configri them to a common fate?
Do J fee in the preliminary remarks of
the honorable member, the title page qf
the Volume 6f itieafures which are to
be pursued ?, Are g^rittemeh sensible of
the extent to which it is defigried to
lead them ? They are now called on to
reduce the army, diminish the navy; to
abolish the mint, to destroy the inde
i pendence of the judiciary, and will they ,
I be able to flop when they are next re
quired to blot out the public debt, that
hateful source of monied interest and of
aristocratic influence ? Be assured, Sir,
I we fee but a small part of the system
I which has been formed. Gentlemen
know the advantage of progreffive'pro
ceedings, and my life for it if tbg can
carry the people <u>itb them, their career
•will not be arrested nubile a trace remains
qf<wbut was done by the former administra
tions. \ .
There was another remark of the
honorable member which I must be al
lowed to notice. The pulpit, Sfo has
I riot escaped inventive. The ministers
of the gospel have been represented,
like the judges, forgetting the duties of
their calling, and employed in diffem
,inating the heresies of federalifm. Am
I then, Sir, to underßand that religion
is also denounced, and that your chur
ches are to be (hut up ? Are we to be
deprived, Sir, both pf law dud gospel,,?
Where do, the principles of the g^tfe
I man end r When the system of reform
is completed wh@t will remain ? I pray
God that this flourishing country which
—under his providence has attained
such a height of prosperity, may yet. es
cape the deflation fuffered by.another
nation, by the praißic^of similar doc-
I beg pardon of the committee for
having consumed so much time upon
I points little conacfled with the fubje&
of the debate. Till f heard the no^
able member from Virginia yetlerday.
I was prepared only to difeufs the mer
its of the bill upon which you are call
ed to vote. His preliminary remarks
were designed to have an effeft which I
deemed it material to endeavor to coßn
terad, and I therefore yielded to the
necessity of pursuing the course he had
taken, though I was confeious of de
parting very far from the fubjeft before
the committee. To the discussion of
that fubjed I now return with great
fatisfaftion, and shall confider it under
the two views it naturally presents ; —
the constitutionality and the expediericy -
of the measure. I find it most conve
nient to confider, firß, the queßion of
expediency, and (hall therefore beg per
million to invert the natural order of
the enquiry.
To (hew the inexpediency of the pres
ent bill I thall endeavor to prove the
expediency of the judicial law of the
fall feßion. In doing this, it will be
necessary to take a view of the leading
features of the pre-exifting system, to
enquire into its defects, and to examine
how far the evils complained of, were
remedied by the provilions of the late
ad; It is riot myi mention to enter in
to the details of the former system ; it
.can be necessary only to Rate so much,
as will diftin&ly fh'ew its defeats.
There existed, Si/, a fdpreme court,
having original cognizance in a few ca
ses, but being principally a court of ap
pellate jurifdicion. This was th'e great
national court of dernier resort. Be
fore this tribunal, questions of unlimit
ed magnitude and consequence, botli
of a &il and political nature, received
their final decision ; and I may be al
lowed to call it the national crucible of
justice, in which the judgments of infe
rior courts were to be reduced to their
elements and cleansed from eyery im
purity. There was a circuit court,
composed in each diftrid of a judge of
the supreme court & the dißrid judge.
-This was the chief court of business,
both of a civil and criminal nature.
In each dißri& a court was eftab-
Iflhed for affairs of revenue and of ad
miralty and maritime jurifdicion. It;
is not necessary, for the purposes of the
present argument to give a more ex
tensive cutßrie of the forme: plan of
our judiciary., We dffcover that the
judges of the supreme court in confe
quene' eof their composing a part of the
circuit courts, were obliged to travel
from one extremity to th'e other of this
extensive country. In order to be in
the court-house two months in the year,
they Were forced to be Upon the road
The supreme court being the court
of last resort, having final jurifdicion
over questions of incalculable impor
portance, otigfit certainly to be filled
with men, not only of probity, but of
great talents, learning, patience and ex
perience. ,The Anion of these qualities
is rarely, very rarely found in men who
have not palled the meridian of life.—
My Lord Coke tells us, no man is fit to
be a judge till he has numbered the lu
cubrations qf twenty years. Men of
Rudious habits, are seldom men of
strong bodies. In thp course of things,
it could not be expefted, that men tit
to be judges of your supreme courts,
would be men capable of traversing the
roountriiri^ and Wilderness of this exten
sive country. It was a striking and
great defeat in this court, that it re
quired in men; the combination of qual
ities, which it is a phenomenon to find
united. It required that they should
possess the learning and experience of
years, and the strength and activity of
youth. I may fay further Mr. Chair
man, that this court, from its constitu
tion, tended to deteribation and not to
improvement. Yoprjudges, instead of
being in their closets and increasing by
reflection and Rudy their Rock of wib
dom and knowledge, had not even the
means qf repairing the ordinary waste
of time., juftead of becoming more
learned and more capable, they would
gradually lose the fruits of their former
industry., Let ipe a(k if this was not a
vicious conßrtiaion of a court of the
highest authority and greatest impor
tance in the nation. In a court from
which lio che had an appeal, and to
whom it belonged to eftablith the lead
ing principles of national jurisprudence.
In the conßitution of this court as a
court of last fefort, there was another
essential defe&. The appeals to this
court are from the circuit courts. The
circuit court coniißs of thediftrid judge
tind a judge of the supreme court. In -
Cases where the dißridt judge is iritereft
ed, where he has been counsel,. and
where he has decided ,in the court be
low, the judge dt the supreme court a-
Ipne compotes the circuit court. Wh: t
then is fubßantially the nature of this
appellate jurifdicion ? In truth;, and
pradice the appeal is from a member c f
a court, tu the body of the fame court.
The circuit courts are but emanations
bfthe supreme court. Cast your eyes
pn the supreme court ; you fee it
disappear, aud its members afterwards
arising in the fhipe of circuit judges.-—
Behold the circuit judges ; they vaniffi
and immediately you perceive the form
of the supreme court appearing. There
is, fir; a magic in this arrangement.