United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-02-06 00:00:00, page 2

I
.3W\ Os this they complained"; but
ibis was not all ; the business was not
done.
lQ.lt several Sections of Congress, the
fubjed of the circuit courts was before
them ; committees were appointed in
both Houses, and in more than one
communication of the executive at the
commencement of sessions, a revision of
the system was recommended. I can
not on memory detail the exad par
ticulars, or order of time ; but in the
speech made by the President at the
-Opening of the session 1799, the fubjeft
is Rated as follows. “To give due
elfed to the civil administration of gov
ernment, and to ensure a just execution
of the laws, a revision and amendment
of the judiciary system is indispensably
necessary. In this extensive country,
it cannot but happen, that numerous
quertions refpe&ing the interpretation
of the laws, and the rights and duties
of officers and citizens mult arise. On
the one hand, the laws should be exe
cuted,on the other, individuals should be
guarded from oppression ; neither of these
objects is fufficiently assured, under the
present organization of the judicial de
partment : I therefore earnestly recom
mend the fubje& to your serious consid
eration." Although this fubjeft had
been recommended before, and com
mittees had contemplated a revision &
alteration of the system, I do not re
member, that a bill had ever been pre
sented to either House of Congress un
til 1799. In that session, a bill, was re
ported similar in its features to the ad
which paged last session. It might
have been aded upon in the House of
Repreferitatives ; of this however, I am
not confident; but I recollect it was
printed,and the members of both Houses
had it before them ; and at the lail ses
sion with some alterations and amend
ments, it was enabled into a law. I
believe all parties wiihed for a revision
and amendment of the fyftem,in refpe&
to circuit courts; the difference of o
pinion was principally this ; some sup
posed an increase of the judges of the
Supreme court to such a number, as
would render the duties of the circuit
practicable for them, and provide for
the completion of business, would be
the heft amendment ; and others tho't
the law, as it passed, was preferable.
I acknowledge, that in deliberating
upon this fubjecl, we always assumed
the principle, that the eftablithment of
courts was important to protest the
rights of the people ; we did not fear
an army of judges, as has been hinted
by the gentleman who was last up,(Mr.
Jackson.) In this opinion we might be
mistaken, but we were honest in our
profeffions ; although some believed
that more of the business of the United
States, might be confided to the State
courts ; yet it is not within my recol
le&ion, that the question was consider
ed in any measure, a party question
I am confident, that at the session of
1799, and for a long time before that,
the friends of this law, which eventual
ly passed last winter,could not, nor did
not contemplate any change of admin
istration. A revision of the system was
long a fubjecl of deliberation ; we be
lieved an increase of circuit judges, to
the number requisite to preform the
duties, would be an inconvenient in
crease of the supreme court; and tho'it
was desirable for the judges of the su
preme court to fee the people & be seen of
them ; yet, the preference was given tc
the system now proposed to be repealed.
We supposed it would be an evil to in
crease the number of judges of the su
preme court to 13, 15 or 17. A court
which is to ad together, should not be
numerous; on this fubjed all men have
agreed ; here may be danger of an "ar
TX J of judges,” as the gentleman fays
for although in Great-Britain the twelve
judges are sometimes called to give ar
opinion ; yet no man will feel equl
confidence in a tribunal of judges foi
the business cf a court, confiding of ma
nr, as of few ; from 3 to 5, the gooc
sense and experience of all nations has
declared to be about the proper num
ber : and we thought it conducive tc
the general good, to establish tribunals
in such a manner, as to carry justice tc
the door of every man.
In this modification cf the system.
the jurifdi&ion of the circuit court hat
been extended, as it refpeds the sum in
demand of which they are to take cog
nizance, and as it relpeds the disputes
which arise concerning the titleof lands,
and exclusive jurifdiclion is given of all
crimes committed within fifty miles of
their place of session. The intention
was to insure a prompt execution of
justice, and experiment alone can test
the wisdom of the plan.
" ,I take it to be a found'rule, adopted
by all wife and deliberative bodies, not
r to repeal an exiftipg law, until experi
ment lhaH have discovered errors, or
unless there is a vice so apparent on the
face of the law, that as justice shall re
quire an immediate deftru&ton of it.—
Has there been time t&gain informa
tion by experiment ? No man will pre
tend this as a jußificau'on of the repeal;
for the little time the law has been in
force, so far as I have obtained any
„ knowledge upon the fubjed, it has gain
!cd credit..,
Another maxim in legislation I think
is correct, not to give up a law in ex
istence, which is conversant about exten
sive and important concerns of the com
munity, and about which there is a ne
cessity of enading some law ; without
feeing clearly what can be fubßituted
for it, and that the fabftituted has man
ifeft advantages. This resolution leads
to no result but a repeal. I have Rat
ed the errors of the former system of
circuit courts, and if expence is an objec
tion to the present system, as I have
heard urged out of doors, the fame, or
nearly as much mull be incurred, if we
increase the number of judges of the su
preme court, to effect a reform in the
circuit court. Why repeal this law
then, and leave us without any, or
without any adequate to its purpose ?
Is this system so very vicious, that it
deserves nothing but abhorrence and
deßru&ion ? It costs us a little more
than thirty thousand dollars, and by it
the number of circuit judges is increas
ed to sixteen ; arid by it is likewise con
templated reducing the number of su
preme judges to five, when it can con
stitutionally be done. Is the expence
an object, when by that expence, we
extend the jurifdidion of a court over
this vastly extensive growing country,
and carry law and protection to every
man ? This country is in a lingular con
dition ; a great trad of unsettled lands
is peopling with rapidity,and numerous
immigrations increase our population
far beyond its natural increase ; is it
not of importance, that courts should
be located among them, early to cor
red the restless spirit, which is frequent
in new and scattered settlements ? And
are not the immigrations composed of
such as require the prompt affißance of
the law, to preserve among them regu
larity ? Punishment, to us, and to all
good men, should be a Rrange work,
but to prevent crimes, is the work of a
God. I speak to gentlemen, who have
many of them graced the judges bench
and adorned the profeffional robe they
have worn, and am therefore not o
bliged to be particular, that I may be
understood ; a word to the wife will be
fufficient.—A judiciary in a national
point of view is absolutely necessary,
and an extension of it to every national
purpose is equally necessary. To de
pend upon date courts, not under obli
gations, nor amenable to you, besides
having as much business allotted to
them by the refpedive dates as they can
accomplish, and depending upon them
and not on us for existence, will require
only to be mentioned to be exploded
Locating your judges in various parts
of the country, by them promulgating
the national laws,which it is well known
has been a subject of great difficulty,
and giving them daily opportunity of
mixing with people, not well disposed
to order and law, may prevent disor
ders, and infurredions, and save mil
lions of expence, which pecuniary sav
ings will be the lead of the important
events arising from such a system.
But it will probably be laid, the courts
have not business to employ them ; and
the documents received from the execu
tive will be produced in evidence. And
it may further be said, the President
has in his message, recommended a re
peal of this law. The words of the
message are, “ thejudiciary system of
the United States, and especially that
portion of it lately erected, will of
course present itfelf to the contempla
tion of Congress; and that they may be
able to judge of the proportion which
the institution bears to the business it
has to perform, I have caused to be
procured from the several States, and
now lay before congress, an exaft state
ment of all the causes decided since the
firft eftablilhment of the courts, and of
those that were depending when addi
tional courts and judges were brought
into their aid."
Is this a recommendation to repeal ?
Suppose for argument fake it is. Let
us look at this “ exad" Ratement In
the recapitulation, 19th page of docu
ment 8, there appears to have been in
stituted 8276 suits, and pending when
this court went into operation, 1539
But on further infpe&ion, it will be
found that Maryland is entirely omit
ted, this omission is unaccountable,fince
the means of knowledge were so near
at band. 119 causes undecided in Ten
nessee; 134 in North-Carolina, andggi
in Virginia are omitted ; making in the
whole an error of 5 or 600 causes. In
addition to this the number of suits in
New-York are not dated corredly, by
the statement of the attorney when he
made the return, and not one is carried
out as pending in the recapitulation ;
and the return of Massachusetts is in
corred on its face; so that nothing
more than conje&ure can be derived
from this “ exad" statement. The Pre
sident is usually more correct, and how
this preremptory language in thf mef
"fa^e Comportswith the document, eve
ry man can fee for himfelf.—l am not
disposed to attribute intentional error
to any man,much less to the executive ;
but in point of use the statement a
mounts to nothing, we may just as well
imagine without it, as with it, how ma
ny suits were pending, at the institution
of the new courts.
But I acknowledge that the number of
suits pending is not in my mind any
criterion upon which a correct judgment
may be formed of the utility or necessi
ty of courts, or to fay the most of it, it
forms but one ground of judging, and
that not a very conclusive one." In a
country thinly fettled, it is frequently
as important to establish courts as in a
more populous country ; and as this
government is situated, it may be more
so; and yet the number of suits will
bear no proportion. Why did we efc,
tablifh courts in our territorial govern
ment but on this principle ?
A number of courts properly located
will keep the business of any country
in such a condition as but few suits will
be instituted; and courts badly organ
ized will discourage suitors and there
will be but few actions returned. From
the number of suits alone there can no
found judgment be formed.
But there is another objection to the
repeal of the judiciary law, which in
my mind is conclusive : I mean the let
ter and spirit of the constitution.
In the formation of every govern
ment in which the people have a share
in its administration, some eftablilhed
rind indisputable principles mult be a
dopted—ln our government, the for
mation of a legislative, executive and
judiciary power, is one of the incon
trovertible principles, and that each
should be independent of the other, so
far as human frailty will permit, is e
qually incontrovertible. Will it be ex
peded that I shall quote Sidney, De
Lolme\ Monteftuieu, and a hod of ele
mentary writers to prove this assertion ?
There is probably no conflict of opin
ion upon this fubje&. When we look
into, our constitution of government,
we shall find in every part of it, a elofe
and undeviating attention to this prin
, ciple. Our particular form is singular
in its requirements, that full force and
operation be given to this all-important
principle. Our powers are limited,
many ads of sovereignty are prohibited
to the national government, and retain
ed by the Rates, and many restraints
are imposed upon Rate sovereignty.—
If either by accident or design, should
exceed its powers, there is the utmost
necessity that some timely checks equal
to every exigency should be interposed.
The judiciary is established by the con-
Ritution for that valuable purpose.
In the Britilh government the legis
lature is omnipotent to every legislative
effed ; and is a perpetual convention
for almost every constitutional purpose.
Hence it is easy to difeern the different
part which must be aligned to the ju
diciary in the two kinds of government.
In England the executive has the most
extensive powers : the sword or the
military force : the right of making
war, and in effe& the command of all
the wealth of the nation, with an un
qualified vote to every legislative ad.
It is therefore rational for that nation
to preserve their judiciary completely
independent of their sovereign. In the
United States the caution must be ap
plied to the existing danger; the judi
ciary are to be a check on the execu
tive, but most emphatically to the legis
lature of the union, and those of the
several Rates. What security is there
to an individual, if the legislature of the
union or any particular Rate, should
pass a law making any of his transac
tions criminal, which took place anteri
or to the date of the law ? None in this
world but by an appeal to the judicia
ry of the United States, where he will
obtain a decision that the law itfelf is
unconstitutional and void, or by a re
sort to revolutionary principles, and
exciting a civil war.—With a view to
those principles, and knowing that the
framers of our constitution were fully
poneffed of them, let us examine the iu
ftrument itfelf :—Art. 3d, led. ill.
“ The judicial power of the United
States shall be veiled in one supreme
court, and in such inferior courts as the
Congress may from time to time or
dain and establish. The judges,
both of the supreme and inferior courts,
shall hold their offices during good be
haviour ; and shall, at Rated times, re
ceive for their services, a compensation
which shall not be diminished during
their continuance in office." Are there
words in the English language more
explicit ? Is there any condition annex
ed to the judge's tenure of office, other
than good behaviour ? Os whom shall
your judges be independent : We are
led to an erroneous decision on this, as
well as on many other governmental
fubjefts, by constantly recurring to
Great Britain. That their courts
should be independent of their sove
reign is an important objeft ; he is the
fountain of honor and power, and can
do no wrong ; our President, at least
for several years paR, has been consid
ered the fountain of dishonour and
weakness, and if there was any maxim
upon the fubjed, it was that he could
do no right. Os course the great object
of the independence of the judiciary
must here have reference not only to
our executive, but our legislature.—
The legislature with us is the fountain
of power. No person will fay that the
judges of the supreme court can be re
moved, unless by impeachment and
corviaion of misbehaviour; but the
judges of the inferior courts as loon as
And let it be remarked that the law
now under confederation, although it
modified our courts, is ftridly guarded
against a violation of the principles I
have here contended for. The Su
preme Court is to consist of but five
judges after the next vacancy shall hap
pen ; and the diftrid judges of I'en
neffee and Kentucky are associated
with a circuit judge,to perform the du
ties of circuit judges, which duties it is
well known they performed ever since
the diftrid courts were eftablilhed;
and in the clause which increases their
salaries they are llyled the Diftrift
judges ; and all the alterations made in
their circumstances, is an increase of
duty, and of salary. I have attempted
to shew the primary neceflity of ren
dering the judiciary of this confederated
government, completely independent,
not only of the executive, but especially
so of the legislature.
And by adverting to the words of
the instrument itfelf, I have attempted
to show, that thejudiciary are secured,
so far as words can do it, as well from
a circuitous removal, by repealing the
law constituting the court of which they
are judges, as by any dired removal.
I am strongly impressed with the
magnitude of this fubjed; perhaps the
whims of a tick man's fancy have too
much poflefled me, to view it corre&ly;
but Sir, I apprehend the repeal of this
law wiil involve in it the total destruc
tion of our Constitution. It is support
ed by three independent pillars ; the
legislative, executive and judiciary ;
and if any rude hand ffiould pluck
either ofthem away, the beautiful fabric
must tumble into ruins.
The judiciary is the centre pillar, and
a support to each by checking both;
on the one fide is the sword, and on the
other the wealth of the nation ; and it
has no inherent capacity to defend
itfelf. These very circumHances united,
may provoke an attack, and which ever
power prevails so far as to vest in itfelf
directly or indiredly the power of the
judiciary, by rendering it dependent ;
it is the precise definition of tyranny,
and mult produce its effects. The
Goths and Vandals destroyed not ody
the government of Rome, but the dty—
itfelf; they were savages, and felt the
loss of neither ; but if it be possible
there can be an intention, like the son
of Manoah, with his strength, without
his godliness, to tumble the fabric into
ruins, let it be remembered it will crush
in one undistinguished ruin, its perpe
trators, with those whom they may call
their political enemies.
I mult earnestly entreat gentlemen
to pause and confider ; I apprehend
the repeal of this ad will be the hand
writing on the wall, Damping Meve
Tekel upon all we hold dear and valu
able in our constitution. Let not the
imputation of instability, which is cast
upon all popular bodies, be verified by
us ; in adopting laws to-day, and re
pealing them to-morrow, for no reafan,
but that we have the power, and will
exercise it.
1 his constitution is an invaluable in
heritance ; if we make inroads upon it,
and destroy it, no matter with what
intentions, it cannot be replaced, we
shall never have another.
[Debates to be tenfouc,! *
Toe Porn in /La Bay of Honduras are okJH a
gainfl American vtfeb.
ordained and cdabliihed, are placed
upon precisely the fame grounds of in
dependence with the judges of the su
preme court. Congress may take their
own time to ordain and establish, but
the instant that is done, all the rights
of independence attach to them.
If this reasoning is correct, can you
repeal a law eßablifmng an inferior
court, under the constitution ? Will it
be said, that although you cannot re
move the judge from office, yet you
can remove his office from him? Is
murder prohibited, and may you (hut
a man up, and deprive him of fuße
nance until he dies, and this not be de
nominated murder ! The danger in
our government is, and always will be,
that the legislative body will become
restive, and perhaps unintentionally
break down the barriers of our conßi
tution. It is incidental to man, and a
part of our imperfedions, to believe
that power may be fafely lodged in
our hands. Wehave the wealth of the
nation at command, and are inverted
with almoß irresistible strength ; the
judiciary has neither force nor wealth
to protest itfelf. That we can with
propriety modify our judiciary system,
so that we always leave the judges inde
pendent, is a correct and reasonable
position ; bat'if we can, by repealing a
law, remove them, they are in the
word Rate of dependence.
I have exhausted myfelf, and I fear,
the patience of the Senate, and regret
exceedingly that my indisposition pre
vented me from a better preparation
upon this important question. I have
attempted to show, that the eftablifh
rhent of a judiciary system for this
country is, and mult be attended with
difficulties, and that the legislature have
taken such measures, as to a majority of
them appeared most reasonable, after
much attention to the fubjed, to cure
the evils of the old system, by the substi
tution of a new system.
United States.
0 WASHINGTON, JAN. 21.
N Tuefday last a detachment of 27 Ma
rines, under the command of Lieutenant Hall,
proceeded from this for the Constellation io the
Delaware—one of 22 under Lieutenant Hov•
ard, for the Enterprize at Baltimore, and yef-<
- terday another of 47 under capt Carmick for
the Che fapeake, at Norfolk.
BALTIMORE, JAN. 22.
Whilst we can felicitate our readers on the
well grounded hope of the President not being
captured, we are under the painful nectffity of6
detailing an event far more diftrtffing to the
nation than even the loft of the President. On
Tuefday last, whiltt riding at anchor, the Con
stitution was struck with a flaw from the south
ward and westward, which has completely set
this valuable ship on her beam ends; and little
hopes are entertained of prtferving either the
vcffel or the inestimable cat go on board! !!
O
French Spoliations.
Messrs. Alexander M'Kim, John Hollins, and
Richard Caton, are appointed a Committee of
the fuffcrers io this city. If the proper success
attends the efforts on this fubjed, many individ
uals, with large families, in various parts of the
nation will be refeued from the jaws of Bank
ruptcy.
O—
On the 9th Nov. the frigate President was
ready to fail from Malaga for Algiers, and front
thence home after touching at Cadiz ; expected
to arrive in the United States about the ift of
Febiuary. —o—
— rage for altering the Judiciary System
prevails in many parts of the United States besides
the city of Walkingson. It is a ready way to bring
it into contempt. Rogues laugh at what falijb
men do. It is possible to have many rulers and
few Stdtefmcn. Those sometimes undertake to
govern man who do not iaro him. The finger
of Hiftory points to a right path, but some Itiuc
on without deigning to look at it ; and others,
after reading the hgn board, disregard jt, and
conceitedly believe they know the way much
better thin those who have travelled it. Others
llray, through carclciTncis. All arc lorry when
it is too late.
The Marlhall of Virginia, has published sev
eral documents to do away certain fallhoods
which have been spread by the Jacobins rLfpcdl
ing the trial of Callender for feuttiqp. CalicHuer
ought to bids himfelf, that the farmer did not
make the sedition law ! In that case, he might
have been lent beyond the reach of the mercy of
a future aomiuiUration. The democrats have
pitied Callender, and inlinuated that he did not
do any thing which deserved pumlhmcnt. Will
they permit the Fedoralilts to apply the fame
words to JEFFERSON which he applied to
WASHINGTON?
O JAN. 23.
DEATH of TQUISSAINT.
A gentleman belonging to a respec
table mercantile house of Alexandria,
now in this town, received a letter from
his partner last night, dated the 21st
intl. which fays, “ /am ferry to inform
you Touiffaint ir no more. He has been
caught by the blacks and burnt alive." The
letter mentions nothing further on the
fubjed ; but from the gentleman's
connexions in trade at Cape Francois,'
there is no doubt but his information
is from the most unquestionable source.
His letter probably came byway ®f
Norfolk, where Capt. Ferguson, whose
packet left there on Tuefday last, Rates
that the fame report of Touiflaint's be
ing burnt was current, though notgene
rally credited.
PHILADELPHIA, JAN. „.
We are happy to learn, that after a
thorough investigation of the conduct
of Mr. Al'en M'Lane, Colle&or of the
port of Wilmington, (Del.) the Execu
tive has given the opinion that the
charges preferred against this valuable
officer were unsupported by fads: and
that it has appeared from the testimo
ny of the case, that he has uniformly
been influenced, in his official demean
or, by the purest considerations of pub
lic interest. This honorable acquital
has been conveyed to Mr. M'Lane, in
a polite letter from the Secietcry of
the Treasury.
[We publifo this article with the great
est cbeerfalnefj ; ^whenever one bate an o p.
so of commending the proceedings of
the present Adminiftratiort, we Jhall ms
readily embrace it.]
U—
NEW-YORK, JAN. 25,
Ext^a of £ letter from Port-Libert,, {Guad)
DeerViKr 14.
" I am afraid we (ball be glad to make our
escape with our lives before many days The
Negroes have made two attempts to rife ; the
firft was in Baffiterre, about the firft of thi>
month, but without much success—they o&%.
stabbed 4 meh in the town, and did fonie &i&
chief in the country : the second was iv. this
place, on the night of the loth inft.and th^^lfo ,
were difpetfed, with their ring-leaders, made
prisoners.—List night the negroes began their
riot in the market place again, whigh greatly
alarmed the people. The whites were running
with their wives and children from every direc
tion, begging of us to take them on board of cur
veffels The women themfclvesdid not flop at?
running into the river up to their.waifts to meet
the boats, with repeated fcreaQis, fo,r God's fake
to save them.
Ihe feyer has been very mortal amongst the
Americans: force v<ffels bay; loft half th&
crews, and others neatl, &
Touilfaint was probably way-laid by
some of Moyes' party, in his usual tour
from the Cape to Portßepublican,which
he mostly made without any guard
And as a retaliation for the death of
their General, and to prevent, as the,
fufpecled, betraying them to the whites,
it is not unlikely that they have inflided
this savage and excruciating torture.
Should this news unfortunately be
true,a ferocious resistance will be made
to the troops embarked for that colony,
and much blond will be Ihed before the
blacks can be subdued.