United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-10-09 00:00:00, page 1

CONCLUDED.
THE delay of this number so long,
1 has arisen, not from that misera
ble indifference to the Rate of our pub
lic affairs, which too many endeavor to
conceal under the name of a discreet
moderation, nor from that Shameful
indolence which would fain take shel
ter in a pretended love of quiet, but
solely from a desire to dojufti.ee to the
fubjeft by bellowing upon it all that pa
tient research, that dispassionate inves
tigation, which it must on all hands
be allowed to demand.
It is our belief, that in ordering the
fine of 200 dolls to be repaid to James
Thompson Callender, after it had been
levied by the Marshal and had of
course become legally vejkd in the U
nited States, the President has assumed
a prerogative unknown to the constitu
tion : It has therefore become our du
ty to arraign this abuse at the bar of pub
)lie reason. And while we shall studi
ously avoid any uncandid confirmation,
or indecorous licence, no considerations
shall induce us to abstain from a free St
decent enquiry.
It may not be improper here to pro
vide against certain falfe and improper
impressions which might tend to leffcn
that degree of undivided attention
which we mull invite, as absolutely es
sential to a right underflauding of the
fubje& before us. There are doubtless
many well disposed performs who will
be apt to confider chiefly the amount
of the fine itfelf, and to exclaim with
the poet Pixatur de lana caprine.* They
may imagine a mere 200 dollars to be
too paltry a sum to attract much no
tice or cause any serious alarm. But
let it be forever remembered, that in
all constitutional questions, it is the
principle, not the amount of the sum
in controversy, which is to be taken in
to account. Usurpations of every
kind are imredued with the greater
facility, when in their firfl attempts,
11 ey are tow trivial to arrest attention,
or when they are choaked under the
plausible pretext of public utility. Once
introduced, however, we are soon a
wakened to behold a gigantic - monger,
who with his fo<t on the earth and his
head in the coudrf becomes too firm •
and forn idable ever to be moved. The
<xercife of a Ldire d: Cachet, in a few
preliminary inftmees of known and de
tedable crimes, may have led to the
establishment of the Badile, and all the
' horrors of discretionary imprisonment.
On the other hand, the affirmed pre- #
rogative of bellowing at the will of the
Monarch, moderate rewards on great
services rendered the community,might
smooth the way to the unlimiteddifpof
al of national property upon the cor
rupt favorers of arbitrary power.—
When Charles the First was unhappily
induced to violate the constitution by his
unauthorized exaction of Ship money,
the celebrated John Hambden made a ,
great and glorious opposition ; renown-"
ed in the annals of all Succeeding ages :
his ichdance coll him an ample fortune
—yet the sum demanded was only a
f w (hillings. The amount claimed was
c early no obj 61, but the principle con
te ided for involved the Liberties and
CoQ#itution of his country —and he
made a noble (land in their behalf
which has given a splendor to his name
that no time can diminish— Thus to
come down to our own times, the trif
\ ling duty of three pence a pound upon
tea, was a matter altogether insignifi
cant when set in comparison with the
toils, the dangers, the blood and trea
sure which was to be the price ofaßev
olution. But an Otis,an Adams, a Han
cock,aWarren,aQuincey&aMollineaux,
fat not down with a Pike's arithmetic
before them to calculate the exad a
mount which an opposition was to cost
—When it became a question between 1
L "economy in the public expense" and|
principle, they were not to be deterred
by an impotent apptehenfion that it
would take from the mouth of labour Some
of the bread it bad earned. The admil
(ion of a right to tax and bind Ameri-;
cab, law in all-cases whatfoever,could
not be endured—it involved principles
* Let them dilute about flraws.
f Inrediturque fob, A euput inter nubia aendit.
Ft*
Os all the Dispositions and habits which lead to political 1
prosperity, Religion and morality ARE INDISPENSIBLE>
SUPPORTS. — WASHINGTON'S LEGACY.
'oI.XIII.] SATURDAY, OCTOBER 9, 1802.
JEFFERSON & CALLENDER.
AMERICAN INDEPENDENCE, TWENTY-SEVENTH YEAR
PORTSMOUTH, N.H. Printed and Publiihed every
From the Neroo-Tork Evening Ptf.
No. XII.
Political.
United ^tate^
Portsmouth
In difeuffing these two points, I shall
confine myfelf ftridly to the fads,leav
ing to another opportunity,a more par
ticular enquiry into the President's mo
tives. For the present, I. shall take it
for granted, that he was actually influ
enced by those ascribed to him in the
papers devoted to his defence, particu
larly that printed at Worcester, under
the immediate care and direction of the
Attorney General : a desire to evince
his opposition to the sedition act as an
unconflitutional law He is welcome
to all the benefits to be derived from
such a defence ; and in truth he must
take up with this, or resort to one e
qually unjuftifiable, and far more dif
graceful. But to return—
Fit fl— The PreJident has no prater to
restore a fine once levied- The people of
the United States, when they adopted
repugnant to conflitutional rights and
subversive of Freedom. This was the
great consideration which impelled
them forward and taught them to
spurn at those obstacles which with
weaker or less patfrtQ men would
have been insurmountable. History
will inscribe t heir names in the fame
roll with that of Hambden and Pym.
In the language thenofa nervous writ
er “ Let me exhort and conjure you my
fellow-citizens, never to fuffer an inva
sion of your political conftitution,how
ever minute the instance may appear,
to pass by, without a determined, per
severing refinance. One precedent
creates another.—They soon accumu
late and constitute law. What yester
day was fad, to day is dodrine. Ex
amples are supposed to juftify the mod
dangerous, meafurefs ; and where they
do not suit exactly, the defeat is suppli
ed by analogy.—This is not the cause
of fadton, or of party, or of any indi
vidual, but the common interest of eve
ry man in" America. If the constitu
tional powers of the President did not
in the case we are about to confjder,
extend to the restitution of the fine
which had been levied,or if the pardon,
as itfued, was not legally competent to
produce the effect afcri'oed to it, then
the constitution of the country has
been violated—and if it may be violat
ed with impunity in one instance, what
security have we for its future fafety ?
Having made these preliminary re
marks, we come now more immedi
ately to the fubjed of the present num
ber.
In order to avoid being perplexed
with useless controversy, and losing
fight of the principal question, let us
here state the leading features of the
case itfelf.
On the 28th of May, 1800, James
Thompson Callender, was legally con
victed of a misdemeanor, and Sentenced
to pay a fine of two hundred dollars, to
be impiifoned nine months, and find se
curity for his good behaviour for a cer
tain term “ beyond the expiration of
his imprisonment ; fliortly after Cal
lender had paid the fine into the hands
of the marshal, and after the term of
his imprisonment had expired, a gene
ral pardon of the misdemeanor, remit
tirg and relea/ing all pains and penalties in
curred or to be incurred by reason thereof,
was granted, and sent to the marshal.
Doubts were suggested whether having
once received the money fiom Callen
der, the officer could legally pay it back
to him. These doubts were communi
cated to the anting Secretary of State,
who after a delay of nearly a month,
replied, that the question had been con
sidered, and that “ before a fine i; paid
into the Treasury, a pardon remits and
restores it to the patty ;" concluding
with a direction to the marshal to " re
store the money to Mr. Callender ;"
which was accordingly done.
On this statement it will be main
taireti—Firft, that the President had
no power to restore the fine after it had
been levied—Second, admitting him
to be possessed of the right, yet that a
charter of pardon simply, like the one in
this case, could not without exrpefs
words of restitution, have that opera
tion. If lam fuccefsful in my attempt
to eftablilh these propositions, it will
follow, that Mr. Jefferfon has exceeded
his conftitutibnal powers, and violated
the laws of his country. , Surely this
fubjed is interesting, although the in
vestigation may be tedious ; but how
ever I may fail to amuse the multi
tude of readers, I flatter myfelf I shall
receive the serious and candid atten
tion of all men of reflection.
I plies a power of restitution ?
The term pardon; in the English law
Ibooks, is applicable to various fubjefts.
There, the crown may pardon not only
crimes and misdemeanors, but debts ;
and by a separate and dittind preroga
tive, may award restitution of goods &
chatties or lands forfeited ; here, how
ever, the power of the President is ex
pressly limited to the granting "re
prieves and pardons for offences againfl the
United States, except in cases of impeach
ment." The question therefore resolves
itfelf precisely into this ; whether a
right to pardon implies in its very ef
fence,a power to restore a fine imposed,
and already paid ?
In England; all fines make a part of
the ordinary revenue of th^ crown,& are
paid into the exchequer for the sole use
of the king,who is the sole proprietor or
poffefTor thereof,and who may therefore
order restitution. But even there al
though in the words of Blackflone,
“ the effect of a pardon simply is to
make the offender a new man ; to ac
quit him of all corporal penalties and for
feiture, annexed to that offence for
which he obtains his pardon, yet
all this, as we shall presently fee,
will not operate to restore a fine with
out express words of restitution. —-
In this country fines are not paid into
the exchequer for the use of the Presi
dent, but into the Treasury for the use
of the United States—The theory
of our Government never once con
templated a power in the Executive
over the Treasury, in any ihape. And
there it is we take the material distinc
tion, in reference to this fubjed,between
the King of Great Britain and the Pre
fidept of the United States. It may
now, perhaps, be proper, before we go
any' further, to examine the English
law more particularly as to the power
of the Crown, to grant pardons. I hold
it to have been long since indisputably
fettled, by a course of authorities, that
were the fubjeft, or fabjefls generally,have
an tetertf in the fine, there the Craven can
not interpose to order restitution. To this
point authorities (hall be pioduced.—
" A pardon does not discharge a
thing in which the fubjed has a pro
perty or interest.” Resolved, § Cro.
31. a 3 Mod. 56. Cro. Car. 357, 8.
" A penalty upon a conviction for
deer-stealing is not discharged by a par
don, for it is a forfeiture to the party griev
ed, and be hath an interest in the penalty."
Semb. I Salk. 383, 4.
" The Crown's share only of a for.
feiture is pardoned by an aft of gene
ral pardon." femp. Ann. Parker 280.
• The uwde made use cf by fa Prtfdent are
" alt pome aft/penalties."
After the most careful examination
of the Constitution, I can find no clause
expressly authorizing the Executive to
order the restitution of a fine, and thus
divest the United States of monies,once
legally vefled by a payment to one of
their officers, for theirnfe. Since then
the Constitution contains no express
provision of this fort, it remains only
to enquire if any such power exists by
fair implication ? And here again I
have to confefs,that 1 can find no word
or phrase which can be even brought
to bear at all on the fubjed, except the
single clause which confers on the Presi
dent the right to grant reprieves and
pardons. And we are thus brought to
the single consideration, whether the
power to pardon offences necelfarily im-
the National Constitution, not only di
reded that all executive powers
sh uld be veiled in aPrefident, but they
defined and limited those powers in the
instrument itfelf: No power therefore
can be legally exercised by him unless
given by express provision, or resulting
by fair conftrudion. lam no advocate
for the diminution of those powers ; I
would be the last man to desire to place
a limitation on the salutary preroga
tives of the Executive ; I confider
them efTentially necessary to the wel
fare and happiness of the people,;and I
would not by any forced inference at
tempt in any Shaperfo abridge them. —
But notwithstanding the liberality of
this disposition, I am, and ever Shall be
rigidly tenacious of the principle by
which those powers are to be tested
We are to be governed by the Confti
tut on as we find it, not as it might be
modified. If the powers of the execu
tive are too narrow, extend them by a
mendment, but not by a violation of
the instrument: Till that is done, we
must take it as it is.
I " After an aftion popular, brought
I tarn pro domino quam pro feipfo, according
I to any ftatute,the king cannot difeharge
ibut his own parr, and cannot difeharge
;the informer's part." 3 Cro. Ins. 25$
Str. 530, 1272. 21 Geo. 11.
Thus we fee, that while the law al
lows the Kinghis full prerogative where
he alone is concerned, it is icrupulouf
ly vigilant that he Shall never exercise
it where it in any manner interferes
with the rights of others ; and altho'
it cannot exclude the prerogative of
pardon, it may prevent the exercise of
the other prerogative of refutation from
accompanying the pardon. The King
can only rellore money which belongs
to himfelf—-that in which no one else
has an interest ; but in the theory cf our
government it is not once contemplat
ed that any part of the public money
belongs to the Executive. Reasoning
therefore by fair analogy from the cases
above cited, it follows, that as the U
nited States have the sole interest in the
penalty levied, the President can have
no right to order it^Rored or in any
way to interfere with it. But we are
not even left to Inference on this impor
tant fubje&X—When once a tine is lev
ied, it becomes a vefld part of the na
tional revenue, and fubjed to the depo
firion of Congress only; to whom alone
^l power of this nature is expressly en
/tuded by the Constitution—" No mo
% Jhall be drawn from the Treasury, but
in confluence cf appropriations made by
law.” Could words more strong be
found to guard public property ? I am
induced, however, to believe that the
Attorney General, then Secretary of
State pro tern, mull have founded his
opinion on this very clause : I fancy
that, on looking at this phrase, the no
tion occurred to him that before a fine
is paid into the freafury, a pardon re
mits and refores it to the party. lam
at a loss, indeed, to conjecture upon
what other ground he has attempted the
diftindion between money paid into the
Treasury and money paid to officers,
who, by receiving it, become account
able for it to the Treasury. The sup
posed novelty of the question, one
would imagine mud naturally have
excited his attention ; its importance
in an abstractive view, could hardly
have escaped him, and the refponfibili-j
ty of his situation, as Counfellor cf the
President in all important law points,
muff have imposed it upon him as his
duty to examine it with the mod cau
tious deliberation. Yet, after all, it
will be found, that he has proceeded
upon a distinction without any solid;
difference. The Constitution supposed
that all monies belonging to the pub
lic, would be paid into the Treasury ;§
and for greater caution, meant by thisl
clause to guard againd unwarranted
appropriations. It was taken for grant-1
e@ that no indirect application for mo
ney would be made to any of its colled- ;
ing officers, and therefore that it would ;
be fufficient to admonjh those who aft- 1
ed in the Treasury, that they would
not be juftified in paying out money
without an express legal appropriation.
The doctrine, however now contendedj
for would render all such provisions per-1
feCtly nugatory. Vain indeed has been|
this caution—idle all the preventative|
wisdom of the framers of our contiitu-|
tion, if the President of the U. States1
can dispose of the public money as hel
pleases, at any time before it actually
reaches the national treasury. This is
to render him the absolute and incon
trolable governor, if not proprietor, of
all the public revenues. If it is law to
proceed as he has done in the case before
us, he may cancel all the Cudom house
bonds, or issue his warrants to the col
lectors of the cuttoms and fiipervifors of
the revenue, and dispose of whatever
public money is in their hands, any
time before it is lodged in the coffers
of the treasury. What would be the
consequences of such a doctrine, and
how fairly it may be inferred firm the
opinion of the Attorney General, the
people mutt judge.
We come now to the ftcond prnpo
fition : namely, admitting the President
to be pofiefled of the right, yet that a
charter of pardon, without words of
reftitution,could not operate to rellore the
money. It will bj perceived that heie
I am at jffue with §he Attorney General,
who after several weeks consideration:
delivered it as his opinion “ that before
a fine is paid into the Treasury, a par-1
don remits and restores it to the party."'
Saturday Morning, by WILLIAM TREADWELL, & C^
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©M^CC^, anti
!the restitution of the fine; and secondly,
i that it he was,yet he has not in his char
-1 after of pardon made use of apt, legal
Iwords fufticient for fitch purpose. It
Itherefore follows, that here has been not
lonly an assumption of prerogative un
-Iknown to the Conffittvion but a daring
attempt to ascribe to an official aft of
the Executive an effect directly in the
face o'the law. This, however, ought
not perhaps, so mu h to excite fut prize,
for when one branch of the Government
has the profligate audacity to attempt
to mark ^ih deriflon apu'lc statute,
which had been regularly and formally
enabled, it certainly can h ve little fcru
pie to trample on all thole £ rm : , which
the wifdem of our ancestors has edab
lifficd.
I have now complcated the trifle I
affignedrayfelf when I beganthefe num
bers. It may be expected, perhaps, by
those who remember that the eventual
payment 6f the fine, was a purchafc of
a fuppieffion of Callender's threatened
narrative of the whole tranfaftion, hat
feme observations will here be made pa
the everiading disgrace to which Mr^
Jefaf>ii has expoled himfJf, by tha
motives which induced him :o peril,
in ordering the repayment of the mon
ey after those doubts as to his legal pov>
ers had been laid before him. Bat all
remarks of this fort will find a pi!e h
the occasional editorial pim uph; <,
iL^i " T ^aL^^^^ii^^^rAt^x^idf
It mud be remembered that the gene
ral d)&rine is that a pardon acquits of
“ all corporal penalties and forfeitures
annexed to the offence," yet we fee it
expressly adjudged that without fpecife
•words of relinkfunmo pardon can restore
a fine levied.—After observing the uni
form current of authorities, I confefs
myfelf utterly at a loss to conceive in
what way he President, or the Secreta
ry of State, or the Attorney General,
will attempt tofupport theopinion which
has been given and aded upon. No law
yer will contend that any words or
phrase in the pardon issued by the Pre
sident, amount to •words of rftitution, but
if any common reader should incline to
such an opinion, it may be observed,
that the Attorney General himfelf has
saved us the troube of shewing that the,
do not, for he places the question pre
cisely on the footing iliat " a pardon of
itf!f ? emits and refares a fine to the party."
Indeed it would have been in vain to.
have laid any Arefs upon the terms
made use of by the President, for we
have feeh it decided, that the fame, and
much broader phraseology is held not to
comprehend terms of rotation.
Ihus then, unless I am entirely mis
taken in the corrednefs and applicability
of the law, and in my conscience I be
lieve I am not, it appear.,, fird/nat the
President was not empowered to order
" A man is indited of a trcffoafs and outlaw
ed at the suit of the king : ^ R?x pardonavit
uttagarium in cam promutgatum^ et quieguid ad earc
pertinct, and notwithfianding the iefindaor Sail
make fine, for it feemeth that thefc"^ :±s qni quid
ad cum pertinet without any reference, are too
general to bsperfc with the fine." 3 Ins. 239.
" A pardon of 11 forfeitures will nor hv.lt
an interest veiled in the king., 3 Mod. 2 Jac.
2.8.
" In error upon outlawry pronounced upon .:n
--diament of murder, it was assigned for error,
thy at the capizs, rhe king pardoned him att that
in him is, all cLattle &J,fffens ; and praycri
that the outlawry be r.veti.G & that he have h;s
ch.ttles ; and the judgment was reversed, b^i
be did not re have Vs goods, for it fecros that it
ought to be by words of rffitution @9 nor
words of pardon." Ur. O'-'^rs de pardon pl. 73.
cites 9H. 5. ,4. Lj.
In a case of this public moment how ±
ever, we hope we (hall (land excufeu,
we undertake to examine for onrfelves
what rhe law may be uninfluenced by lof
ty names or exalted Ration. And in di
rect contradiction to this great law-of
ficer, I (hall maintain, that when a fine
is once paid, it having become proper
ty veiled, a charter of pardon does not
imply its refitution. To ettablilh thix
doctrine the following authorities are
conceived to be directly in point.
' As no pardon from the king ihall divest an,
interest defied in the fubjedt ; so neither (ball it,
•uitbout "cords of refitutirnevn divest any thihg
from the king " Lev 8 I/O. 3 M0d.53. Sautid:
302 3 Moi 111. Bic 5 296.
" Ila man outlawed at the fuir of the part,
bepardonedofshe ou la vry, yet 'r.c is not reflated
to his goods thereby : For the pardon Ihall not
give rfitution if goods. Be. Charters de pardon
pl 11.
" ?. pardon of an outlawry fcr felony, doc?
hot restore his goods or lands, forfeited by the
outlawry, without icords of rotation. 2 Roll
Ab. 179. l.jj.
" Pardon by the king without express nvorde
of restitution, Ihall Dot divest, either from the king
or subject an inter est, either in lands or goods,
vefled in them by an attainder or conviction pre
cedent. 2 Hawk PL C. 296 cap 37. 3 54,