United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-04-03 00:00:00, page 2

appears to me, that most to which he
has had recourse, when justly consider
ed, have operated against the cause they
were designed to support.
, The gentleman tells us that the con
stitutional provision on this fubje& was
taken from the statute of William. Will
he answer me this plain question ? Why
do we find omitted in the constitution,
that part of the statutory provision,
which allowed thejudges' to be remov
ed upon the address of the two branches
of the legislature ? Does he suppose
that the clause was not observed ? Does
he imagine that the provision was dropt
through inadvertency ? Will he impute
so gross a negleß to an instrument every
sentence, and word, and comma, of
which, he has told us was. so maturely
considered, and4b warily fettled ? No,
fir, it is impoflible ; and give me leave
to fay, that if this part of the constitu
tion were taken from the statute (and
the gentleman from Virginia must have
better information on the fubjed than
I have) that a Wronger argument could
not be adduced, to fhewthat it was the
intention of thole who framed the con
stitution, by omitting that clause in the
statute which made the judges tenants
of their offices at the will of Parliament,
to improve in this country the English
plan of judicature, by rendering the
judges independent of the legislature.
And I shall have occasion in the course
of my observations, to flsew, that the
strongest reasons derived from the na
ture of our government, and which do
not apply to the English form, require
the improvement to be made.
Upon this point, fir, we may borrow
a few additional rays of light from the
constitutions of Pennsylvania, of Dela
ware, and of some other states. In those
states it has been thought, that there
might be mifcondu& on the part of
a judge, not amounting to an impeach
able offence, for which he should be lia
ble to be removed. Their constitutions,
therefore, have varied from that of the
U. Statee & rendered their judges lia
ble to be removed upon the address of
t<ivo thirds of each brannch of the legis
lature. Does it not strike every mind,
that it was the intention of those consti
tutions to have judges independent ofa
majority of each branch of the legisla
ture ? and I apprehend allo that it may
be fairly inferred, that it was under
flood in those states when their constitu
tion was formed, that even two thirds
of each branch of the legislature would
not have the power to remove a judge
whole tenure of office was during good
behaviour, unless the power was ex
pressly given to them by the constitu
tion. I cannot well conceive of any
thing more absurd iq an instrument de
signed to lift for centuries, and to bind
, the furious passions of party, than to
fortify one pass to judicial independence
and to leave another totally unguard
ed againA the violence of legislative
power.
It has been urged by the gentleman
from Virginia, that our admiftton that
Congress has a power to modify the of
fice of judge, leads to the conclusion
that they have the power to abolish the
office. Because by paring away their
powers, they may at length reduce
them to a shadow, and leave them as
humble and as contemptible as a court
of piepoudre. The office of a judge
consists of judicial powers which he is
appointed to execute. Every law which
is passed increases or diminishes those
powers, and so far modifies the office :
nay it is competent for the legislature to
prescribe additional duties or todifpenfe
with necessary services, which are con
nected with the office of the judge.
But this power has its bounds ; You
may modify the office to any extent
which does not affed the independence
of the judges. The judge is to hold
the office during good behaviour; now
modify as you please, so that you do
not infringe this constitutional provi
sion.
Do you ask me to draw a line and
fay,thus far you can go and no farther?
I admit no line can be drawn. It is
an affair of found and bo^a fam discre
tion. Because a discretion on the fub
jed is given to,the legislature, to argue
upon the abuse of that discretion is a
dopting a principle subversive of all le
gitimate power.
The constitution is predicated upon
the exigence of a certain degree of in
tegrity in man. It has trailed power
liable to enormous abuse, if all politi
cal honesty be discarded. The legisla
ture is not limited in the amount of
the taxes which they have a right to
' impose, nor as to the objeds to which
they are to be applied. Does his pow
er give us the property of the country,
because by taxes we might draw it into
the public coffers, and then cut up the
treasury and divide the spoils ? Is there
any power in refpe& to which a precise
line can be drawn, between the difereet
exercise and the abuse of it ?
I can only fay, therefore on this fub
jed, that every man is acquitted to his
own conscience, who bona fide does dot
intend, and who sincerely does not be
lieve, that by the law which he is about
to pass, he interferes with the judges,
holding their offices during good be
haviour.
I am now brought, Mr. Chairman,
to take notice of some remarks whifh
fell from the gentleman from Virginia,
1 beg that it will be understood, that
I mean to give no opinion, as to the
regularity of granting a commiffwn for
ajudicial office, upon the probability
of a vacancy, before it is actually va
cant. But I shall be allowed to fay
that so much doubt attends the point,
that an innocent mistake might be
made on the fubjed. I believe, fir, it
has been the practice to confider the
acceptance of an office, as relating to
the date of the commission. The offi
cer is allowed his salary from that date
upon the principle that the commission
is a grant of the office,, and the title
commences with the date of the grant.
Ihis principle is certainly liable to a
buse, but where there was a suspicion of
abufe,l presume the government would
depart from it. Admitting the office
to pass by the commission, and the ac
ceptance to relate to its date, it then
does not appear very incurred in the
case of ^ " ^m.^An far the ofFr? of a
that do not belong to the fubjed before
us ; but are of fufficient importance to
deserve particular observation. He cal
led our attention in a very impreffve
manner to the date of parties in this
house at the time when the aft of the
last feflion passed. He describes us as
in a date of blind paroxysm, incapable
of difcein ng the nature or tendency of
the measures we were pursuing : That
a majority of the house were struggling
to counteract the expression of the pub
lic will, in relation to the person who
was to be the chief magistrate of the
country.
I did suppose, fir, that this business
was at an end, and I did imagine that
as gentlemen had accomplished their
object, they would have been fatisfied.
But as the fubje& is again renewed we
must be allowed to juttify our conduct.
I know not what the gentleman calls
an expreflion of the public will. There
were two candidates for the office of
President, who were presented to the
House of Representatives with equal
fuffrages. The constitution gave us the
right and made it our duty to ele& that
one of the two,whom we thougt prefer
able. A public man is to notice the
public will as con ftitutionally expressed.
The gentleman from Virginia and ma
ny others may have had their prefer
ence, but that preference of the public
will did not appear by its constitutional
expression. Sir, Fam not certain, that
either of those candidates had a majori
ty of the country in his favour. Ex
cluding the state of South Carolina, the
country was equally divided. We
know that parties in that state were
nearly equally balanced, and the claims
of both the candidates were supported
by no other ferntiny into the public
will, than our official return of votes.
Those votes are very imperfect evidence
of the true will of a majority of the na
tion. They resulted from political in
trigue, and artificial arrangements.
When we look at the votes we must
suppose, that every man in Virginia
voted the fame way. These votes are
received as a correct oppression of the
public will. And yet we know, that if
the votes of that state were apportion
ed according to the several voices of
the people, that at least seven out of
twenty-one, would have been opposed
to the fuccefsful candidates. It was
the suppression of the will of one third
of Virginia, which enables gentlemen
now to fay, that the present chief ma
gistrate is the man of the people. I
confider that as the public will, which
is expressed by the constitutional or
gans. To that will I bow and submit.
The public will, thus manifested, gave
to the House of Representatives, the
choice of the two men for President.
Neither of them was the man whom I
wished to make President, but my elec
tion was confined by the constitu
tion to one of the two, and I gave my
vote to the one wh r ml thought was the
greater and better man. That vote I
repeated, and in that vote I Ihould have
persisted, had I not been driven from it,
by imperious necessity. The profpefl
ceased of the vote being effectual, and
the only alternative remained of taking
one man for President, or having no
President at all. I chose, as I then
tho'.t, the lefler evil.
From the feene in this house, the
gentleman carried us to one in the sen
ate. I should blush, fir, for the honor
of the country, could I suppose that
the law designed to be repealed, owed
its support in that body to the motives
which have been indicated. The charge
designed to be conveyed,not only deep
ly implicates the integrity of individu
als of the senate, but cf the person who
was then the chief magistrate. The
gentleman, going beyond all precedent,
has mentioned the names of members
of that body, to whom commissions is
sued for offices not created by the bill
before them, but which that bill by the
promotions it afforded was likely to
render vacant. He has considered the
scandal of the tranfa&ion, as aggravat
ed by the issuing of commissions for of
fices not actually vacant, upon the bare
presumption that they would become
vacant, by the incumbents accepting
commissions, for higher offices which
were issued in their favor. The gentle
man has particularly dwelt upon the
incident appearance of thebufinefs from
two commissions being held by differ
ent persons at the fame time, for the
fame office.
The case, fir, to which I refer, carries
me once ipore to the scene of the Pres
idential eledion. I ffiould not have in
troduced it into this debate, had it not
been called up by the honourable mem
ber from Virginia. In that scene I had
my part, it was a part not barren of in
cident', and which has left an impres
sion, which cannot easily depart from
my recollection. I know who were
rendered important characters, either
from the pofleffion of personal means,
or from the accident of political fi'tua
tion. And now, fir, let me ask the
honourable member, what his reflec
tions and belief will be, when he ob
serves that every man, on whose vote
the event of the election hung, has
since been distinguished by Presidential
favor. I fear, fir, I (halt violate the
decorum of Parliamentary proceeding,
in the mentioning of names, but I
hope the example which has been set
me will be admitted as an excuse Mr.
Charles Pinckney of Southlarolina
was not a member of the house, but he
was one of the most active, efficient,
and fuccefsful promoters of the election
of the present chief magistrate. It was
well afeertained that the votes of South-
Carolina were to turn the equal balance
of the Scales. The zeal & industry of
Mr.Pinckney hadno bounds. Thedoubt
ful politics of South-Carolina were de
cided, and her votes cast into the scale
of Mr. Jefferfon. Mr Pinckney has
since been appointed minister plenipo
tentiary to the court of Madrid. An
appointment as high and honorable, as
any within the gift of the executive. I
will not deny that this preferment is
the reward of talents and services, al
though, fir, I have never ret heard of
the talents or the services of Mr. Charles
Pinckney. In the House of Representa
tives I know what was the value of the
vote of Mr. Claiborne of Tenneflee.
The vote of a date was in his hands.
Mr. Claiborne, has since been raised to
the high dignity of govenor of the Mis
sissippi Territory. 1 know how great
and how greatly felt, was the impor
tance of the vote of Mr. Linn of New-
Jersey. The delegation of the Rate con
fids of five members. Two of the del
egation were decidedly for Mr. Jeffer
fon ; two were decidedly for Mr. Burr.
Mr. Linn was considered as inclining
to one fide, but dill doubtful. Both
parties looked up to him for the vote of
New-Jersey. He gave it to Mr. Jeffer
fon, and Mr. Linn has since had the
profitable office of supervisor of his
diftrift conferred upon him. Mr. Lyon
of Vermont was in this instance an im
portant man. He neutralized the vote
of Vermont. His absence alone would
have given the vote of a gate to Mr.
Burr. It was too much to give an of
fice to Mr. Lyon ; His character was
low. But Mr. Lyon's son has been
handsomely provided for in one of the
executive offices. I Shall add to the
catalogue but the name of one more
gentleman Mr. Edward Livingftqn, of
New-York, I knew well, full Well I
circuit judge, granted to a diftriajudge
as the acceptance of the commission for
the former office relates to the date of
the commission, to confider the latter
office as vacant from the fame time.
The offices are incompatible. Ydu can
not suppose the fame person in both of
fices at the fame time. From the mo
ment therefore, that you confider the
office of circuit judge filled by a person
who holds the commission of diftrift
fudge, you must confider the office of
diftri& judge as vacated. The grant
is contingent. If the contingency hap
pen, the office vests from the date of
the commiffion,if the contingency does
not happen the grant is void. If this
reasoning be found it was not irregular
in the late administration, after grant
ing a commission to a district judge for
the place of a circuit judge, to make a
grant of the office df the diftrid judge
upon the contingency of'his accepting
the offi ce of circuit judge. I now re
turn, fir, to that point of the charge,
which was personal in its nature, and
of infinitely the most serious import
It is a change as to which, we can only
afk,i it true ? If it be true, it cannot
be excused ; it cannot be palliated, it is;
vile profligate eruption, which every
honed mind execrates. But, fir, we are
not to condemn till we have evidence
of the faft. If the offence be serious,
the proof ought to be plenary. I will
confider the evidence of the fad, upon I
which the honorable member has reli
ed, and I will shew him by the applica
tion of it to a Wronger case, that it is
of a nature to prove nothing.
Let me firft state the principal last.
Two gentlemen of the fenate,Mr. Read
of South-Carolina, and Mr. Green of
Rhode-Inland, who voted in favor of
the law of last session, each received an
appointment to the place of a diftrift
judge, which was designed to be vacat
ed by the promotion of the diftrid judge
to the office of circuit judge. The gen
tleman conveyed to us a diftind impres
sion of his bpinion,that there was an un
derftandinte between these gentlemen
and the President, and that the offices
were the promised price of their votes.
I preface, fir, the gentleman will
have more;charity, in the case which 1
am about to mention, and he will for
once admit that public men ought not
to be condemned, upon loose conclu
sions drawn from equivocal presump
tions.
knew the consequence of this gentle
man. His means were not limited to
his own vote—nay, I always considered
more than the vote of New-York with
in his power. Mr. Livingston has since
been made the attorney for thediftrift of
New-York—the road of preferment has
been opened to him—and his brother
has been raised to the dlftinguifhed
.place of minister plenipotentiary to the
Frencli republic. This catalogue
might be swelled to a much greater
magnitude ; but I fear, Mr. Chairman,
were I to proceed further, it might be
supposed, that I myfelf harboured the
uncharitable suspicions of the integrity
of the chief magistrate, and of the pu
rity of the gentlemen whom he thought
proper to promote, which it is my de
sign alone to banish from the mind of
I the honorable I member from Virginia.
I It would be doing me great injustice to
I suppose, that I have the smallest desire
or have had the remotest intention to
tarnish the fame of the present thief
magistrate ! or any of the honorable
gentlemen who have been the objeds of
his favor, by the statement which I have
made: my motive is of an opposite
I ,nature, mhe late President appointed
gentlemen to office, to whom he owed
no personal obligations, but who only
supported what has been considered as
a favourite measure. This has been
:affumed as a fufficient ground, not on
ly of suspicion, but condemnation. The
, present executive, leaving scarcely an
exception, has appointed to office, or
lias by accident, indirectly gratified
every man, who had any distinguished
means in the competition, for the pre
sidential office, of deciding the ele&ion
in his favour. Yet, fir,'all this furnifhes
too feeble a presumption to warrant me
to express a suspicion of the integrity
of a great officer, or of the probity of
honorable men, in the difchai±e of the
high functions which they had derived
from the confidence of their country.
I am sure, fir, in this case, the honora
ble member from Virginia is as exempt
from any suspicion as myfelf. And I
(hall have accomplished, my whole ob
ject, if I induce that honorable member,
and other members of the committee,
who entertain his suspicions as to the
conduct of the late executive, to review
the ground of those suspicions, and to
confider that in a case furnifhing much
stronger ground for the presumption of
criminality, they have an unihaken be
lief, an unbroken confidence in the pu-I
rity & fairnefs of the executive conduct.
I return again to the fubjeCt before
the committee, from the unpleasant di
gression to which I was forced to sub
mit, in order to repel insinuations which
were calculated to have the word effeCt,
as well abroad as within the walls of
this House. I shall now cursorily ad
vert to some arguments of minor impor
tance, which are supposed to have some
weight by gentlemen on the other fide
It is said, that if the courts are fanCtua
ries and the judges cannot be removed
by law, it would be in the power of a
party to create a host of them to live as
pensioners on the country. This argu
ment is predicated upon an extreme
abuse of power, which can never fairly
be urged to retrain the legitimate ex
ercise of it ; as well might it be urged,
that a subsequent congress had a right
to reduce the salary -of a judge, or of
the President, fixed byaformer congress,
because if the right did not exist, one
congress might confer a salary of
500,000 or 1,000,000 dollars to the
impoverishment of the country. It
will be time enough to decide upon
those extreme cases when they occur
We are told, that the doctrine, we con
tend for, enables one Itgiflature to 'der.
ogate from the power of another. Tha
it attributes to a former power which it
denies to a subsequent legislature.
This is not correct. We admit that,
this congress possesses all the power pos
sessed by the last congress. That con-
[ grefs had a power to establish courts, so
has the present. That congress had not,
nor did it claim the power to abolish the
office of a judge while it is filled. Tho'
they thought five judges under the new
fyllem, fufficient to constitute the su
preme court, they did not attempt to
touch the office of either of the fix judg
es. Though they considered it more
convenient to have circuit judges in
Kentuckey and Tennessee than diftrift
judges they did not lay their hands up
on the offices of the diftrid judges. We
therefore deny no power to this con
gress which was denied to the last. An
honorable member from Virginia, (Mr.
I Thompson) feriouflyexpreffed his alarm
left the principles we contend for fliould
introduce into the country a priviledg
ed order of men. The idea of the gen
tleman supposes, that every office not at
will eftablilhes a priviledged order. The
judges have their offices for one term;
the Prefident,thefenators and the mem
bers of this House for different terms.
While thefeterms endure there is a privi
lege to hold the places, and no power
exists to remove. If this be what the
gentleman means by a privileged order,
and he agrees, that the President, the
Senators and the members of this House
belong to privileged orders, shall give
myfelf no trouble to deny, that the judg
es fall under the fame description ; and
I believe, that the gentleman will find it
difficult to shew, that in any other
manner they are privileged. I did not
fuppofc, that this argument was so
The law referred to, establishes a circuit, com
prehending Kentucky, Tennessee, and the dif
tri& of Ohio. The duties of the court of thi,
circuit are directed to be performed by a circuit
judge and the two diftridljudges of Kentucky
and Tenoeffee. Surely it is competent for the -
legislature co create a court, and odiredi that it
(hall be holden by any of the exiftg judges.
Ifche legislature had done, with refped to ail
the diftria judges, what they have done with
refpea to theft of Kentucky and Tennessee, I
am quite certain, that the present objection
would have appeared entirely groundless. Had
they directed, that all the circuit courts Should
be held by the refpegive judges within the cir
cuits, gentleman would have clearly seen, that
this was only an imposition of a n;w duty and
not an appointment to a new office.
It will be recollected, that under the old es
tablishment, the diftrift judges of Kentucky and
Tennessee were invested generally with the
powers of the circuit judges. The ancient pow
ers of those judges are scarcely varied by the
late law, and the amount of the change is, that
they are directed to exercise those powers in a
court formerly called a diftrid, but now a cir
cuit court, and at other places than thofetowhich
they were formerly confined. But the diftrid
judge nominally remains, his office both nomi
nally and Substantially exists, and he hoki it now
as he did before, during good behaviour. I will
refer gentlemen to different provisions in the
late law, which will shew beyond denial, that
the legislature carefully and pointedly avocded
the a& of abolishing the officer of thole judges.
The 7th fed. of the law provides that the
court of the 6th circuit (hall be composed of a
circuit judge " and the judges of the dijiria couth
of Kentucky and Tennessee." It is afterwards
declared in the fame fedion, “ that there (hall
be appointed in the 6th circuit, a judge of the
United States to be called a circuit judge, who,
together with tbe difria judge of Tennessee and
Kentucky (hall hold the circuit courts hereby di
re&d to be holden within the fame circuit."
And finally, in the fame feel ion it is provided,
" that nubenever tbe tfice of difria judge in tbe
diftrißs of Kentucky and Tenoeffee reflexively
Jbatl become vacant, such vacancies shall ref
pedively be supplied by the appointment of two
additional circuit judges in the fald circuit, who,
together with the circuit judge firft aforefaid,
shall compose the circuit court of the said cir
cuit." When the express language of the law
affirms the existence of the office and of the of
ficer, by providing for the contingency of tbe
officers ceasing to fill the office, with what face
can gentlemen contend that the tfre is abolish
ed ? They who are not fatisfied upon this point,
1 despair of convincing upon any other,
Upon the main queflion, whether the judges
hold their offices at the will of the legislature,
an argument of great weight and according to
my humble judgment, of irrefiftble force Bill
remains.
The legislative power of the government if
not abfoltite, but limited. If it be doubtful whe
ther the legislature can do what the couftitutiog
much addressed to the understandings
of the gentlemen upon this floor, as to
the prejudices and passions of people out
of doors.
Ic was urged with some imfteffion by fche
honorable member from Virginia, to whom I
last referred, that the position that the office of
a judge might be taken from him by law, was
not a new dodrine. That it was established
by the very ad now designed to be repealed;
which was described in glowing language to
have infliaed a gaping wound on the constitu
tion, and to have Gained with its blood the pages
of our statute book. It shall be my talk, fir, to
close this gaping wound, and to wash from the
pages of our statute book the blood with whfch
they were Gained. It will be an easy talk to
shew to you the constitution without a wound,
and the statute book without a slain.
It is, fir, the 27th fe^ion of the bill of the
last feflion, which the honorable member confi
ders as having infliaed the ghaftty wound on
the conftitution,of which he has so feelingly spok
en. That feaion abolishes the ancient circuit
courts." But, fir, have we contended, or has the
gentleman shewn, that the constitution prohibits
the abolition of a court when you do not ma
terially affea, or in any degree impair the in
dependence of a judge ? A court is nothing
more than a place where a judge is directed to
difeharge certain duties. There is no doubt,
you may ered a new court, and dire& it to be
Solden by the judges of the supreme or of the
diftria courts. And if it should afterwards be
your pleasure to abolish that court, it cannot be
said that you destroy the offices of the judges,by
whom it was appointed that the court should
be holden.
Thus it was dire&ed by the original judicial
law, that a circuit court ffiould be holden at
Yotk-town, in the diftria of Pennsylvania.——
This court was afterwards abolished, but it was
never imagined, that the office of any judge
was affeaed. Let me suppose, that a State is'
divided into two diftrids, and diftria courts
established in each, but that one judge is ap
pointed by law to difeharge the judicial duties
in both courts. The arrangement is afterwards
found inconvenient, and one of the courts is
abolished. In this case will it be said, that the
office of the judge is destroyed, or his indepen
dence affeded ? The error into which gentle
men have fallen on this fubjea, has arisen from
their taking for granted, what they have not
attempted co prove, and what cannot be support
ed ; that the office ofa judge and any court ia
which he officiates are the fame thing. It is
most clear, that a judge may be authorifed and
directed to perform duties in several courts, and
that the difeharging him from the performance
of duty in one of those courts cannot be deem
ed an infringement of his office. The case of
the late circuit courts as plainly illustrates the
argument, and as conclusively demonstrates its
correftnefs, a< any case which can be put
There were not nominally, any judges of the
circuit court. The court was direded to be
holden by the judges of the supreme and of
the circuit courts. The judges of these two
courts were associated, and directed to perform
certian duties: when associated and in the per
formance of those duties, they were denominat
ed the circuit court. This court is abolished §
the only consequence is, that the judges of the
supreme and diftria courts are difeharged from
the performance of the joint duties which were
previously imposed upon them. But is the of
fice of one judge Os the supreme or of the dif
tri& courts infringed ? Can any judge fay, in
consequence of the abolition of the circuit courts,
I no longer hold my office during good beha
vior ? On this point it was further alledged by
the fame honourable member, that the law of
the last ft ffion inflided another wound on the
constitution, by abolishing the diftria courts of
Kentucky and Tennessee. The gentleman was
here deceived by the fame fallacy which milled
him on rhe fubjea of the circuit courts. If he
will give himfelf the trouble of carefully review
ing the provisions of the law, he will difeern
the fedulsus attention of the legislature to avoid
any infringement upon the offices of those judges
I believe the gentleman went so far as to charge
us with appointing by law those judges to new
offices.