United States oracle and Portsmouth advertiser — Portsmouth, N.H., 1802-01-30 00:00:00, page 2

t .^.^wttHeEßmaara^^
Nr. Mason challenged gentlemen to
exhibit a single instance, beside that
ite y furnished by Maryland, of a le
idativc ad, repealing a law puffed in
execution of aConiiitution,under which/
the judges held their offices during ;
good behaviour. In truth, no such
power emitted, nor was it in the power
jf any legiflature,fo circumstanced, by
a single law to dalh them out ot exift
.nce.
The opinion of Mr. Mason, therefore
was, that the legislature have no right ;
to repeal the judiciary law. For such
an act would be in dried violation of
the Constitution.
The Constitution fays.—•'' The ju
dicial power of the United States Shall
be vetted in one Supreme court, and in
such inferior courts as the Congress
may, from time to time, ordain and
cttabirlh. The judges, both of the fu
peme and inferior courts Shall hold
their offices during good behaviour,
and Shall, at stated times, receive for
their Services a compensation, which
ihall not be diminished during their
continuance in office."
Thus it fays, " the judges /ball held
their offices during good behaviour."
How can this direction of the Consti
tution be complied with, if the legisla
ture Shall, from session to session, repeal
tie law under which the office is held
and remove the officer. He did not con
ceive that any words, which human
ingenuity could devise, could more
completely get over the remarks that
had been made by the gentleman from
Kentucky. But that gentleman fays,
that this provision of the Constitution
applies exclusively to the President.—
die considers it as made to supersede
the powers of the President to remove
the judged. But could this have been
the contemplation of the framers of the
Constitution when even the right of the
President to remove officers at pleasure
was a matter of great doubt, and had
divided in opinion our most enlighten
ed citizens. Not that he Stated this
circumstance, because he had doubts.
He thought the President ought to
have the right ; but it didmot emanate
from the Constitution ; was not cx
prefsly found in the Constitution ; but
Sprang from legislative conftruCtion.
. Beiides if Congress have the right to
repeal the whole of the law, they mull
possess the right to repeal a fedion of
it. If so they may repeal the law lo
Far as it applies to a particular diftrid,
and thus get rid of an obnoxious judge.
They may remove his office from him.
Would it not be absurd hill to fay,that
the removed judge held his office dur
ing good behaviour ?
The Constitution fays, "The Judges
Shall at Rated times, receive for their
ferviecs, a compensation, which Shall
not be diminished during their continu
ance in office." Why this provision ?
Why guard against the power to de
prive the judges of their pay in a di
minution of it, and not provide against
what was more important, their exist
ence.
Mr. Mason knew that a legislative
body was occasionally Subject to the
dominance of violent passions; he knew
that they might pals unconstitutional
laws ; and that the judges, sworn to
'Support the constitution, would refufe'
to carry them into effect; and he knew
that the legislature might contend for
the execution of their Statutes. Hence
the necessity of placing the judges a
bove the influence of these parlous ;
and for thele reasons the Constitution
had put them out of the power'of the
legislature.
Still, if gentlemen would not agree
with him as to the unconititutionality
of the measure proposed, he would
was it expedient ? Were there not
great doubts exiting throughout th^
United States ? Ought not each gen
tleman to fay, though I may have no
doubts cr hesitancy, are not a large
portion of our citizens of opinion, that
ft would violate the Constitution / If
this diversity of Sentiment exists, ought
not the evils under the judiciary law
to be veiy great before we touch it ?
Ought ve not to aim at harmonizing
instead of dividing our citizens ? Was
not the Constitution a sacred instru
ment? an instrument ever to be ap
proached with, reverence? an instru
ment which ought not lightly to be
drawn from its hallowed retreat, and
fubje&ed to the flux and reflux of paf
lion? But where is the evil complain
ed of ? This system was established on
ly. last session : scarcely had it been or
ganized ; scarcely had we tried it on
its very threshold ; where then the ne
cessity of being so painted, as to des
troy a system scarcely formed three
days ago ? Docs not this manifest pre
cipitation ? Will it not manifeft more
magnanimity, more rationality to abide
by it until we try- it ; instead of taking
up a pen and dating it out.of exist
ence?
The reason that the suits depending
were so numerous, arose from the na
ture of .the- old eftabliihment. That
establishment had ,0 parallel. It car
ried with it the; feeds of its own disso
lution. No set of judges could be
found physically hardy enough to ex
x. acute it. - Such was the labor of their
duties, that they were denied time for
study or improvement. Besides a case
was heard at one term by one judge,
and postponed far ^consideration to the
next term. At that term another
judge appeared, and all the arguments
I were,to be gone over anew ; and the
fame thing might happen again and
again. Was this the way to extend
jullice to our citizens ? Was not the
delay equivalent to a denial of justice ?
It was a fad that three fourths of the
time of the judges had been taken up
in travelling.
It may be true, that the number of
suits in the federal courts are lessened ;
and if the internal taxes are to be Swept
away, it may be Phil moue leflened as
far as depends upon that source. But
is it impossible, that suits will go on di
minishing as the gentleman Seems to
think? Is reason so predominant? Is the
millenium so near at hand ? On the con
trary is not our commerce increasing
with great rapidity ? Is not our wealth
increasing? And will not controversies
rife in proportion to the growth of our
numbers and property ? Controversies,
which will go to federal tribunals as
soon as the judiciary system is fully
eftablilhed. By the documents quot
ed by the gentleman from Kentucky,
it appears, that more business has been
lately done in the federal courts^ than
in any other antecedent time, except in
one or two counties in Pennsylvania.
Besides, (said Mr. Mason,) even if
there be not a great preifure of business,
had we not better pay the paltry sum
of 30 cr 40,000 dollars for a system too
broad than have 01^ thatis too narrow?
Is it not a melancholy consideration,
that in many of the European States,
the costs are equal to the principal
contended for ? It would be honora
ble to the United States to exhibit a
different example. It would be hon
orabte to them to hold out an example
—even if confined to foreigners, of
prompt and efficacious justice, though
at the expence of 100,000 dollars.-—
Such an example would be a cause
for national triumph, and our people
would exult in it.
Inasmuch, therefore, as to render the
judges reipe&able it was neceflary to
make their appointments permanent, as
time, labour,experience and long Study,
were required to perfed any man in a
knowledge of the laws of his country :
inasmuch as it has been thought good
policy, that the judges Should be well
paid ; and that they Should be so well'
placed as to be divested of all fear, and
neither to look to the right or to the
left ; inasmuch as they Should be so
placed as to render them independent
of legislative as of executive power ; he
leaped this law would not be repealed.
These were the reasons, which Mr.
Mason assigned as those which would
influence his.decifion. He acknowledg
ed, that he had not entered the House
prepared to offer his Sentiments: but
as the question was about to be put, he
had thought it bed to offer them, such
as they were, rather than to give a si
lent vote on a fubjed of such great im
portance. —
Mr. Morris of New-York. Mr. president,
1 am so very unfortunate, that the arguments
in favour of the motion have confirmed my
opinion, that the law to which it refers ought
not to be repealed. The honorable mover has
retted his proportion on two grounds.
ift. That the Judiciary law puffed last session
is unneceffary,and
zdly. That we have a right to repeal it and
ought to exercise that right.
The numerical mode of argument, made ufel
of to prove this, is perfectly novel, and com
mands my tribute of admiration. This is the
firft time I ever heard the utility of courts of
justice estimated by the number of suits carried
before them. I have read that a celebrated
monarch of England, the Great Alfred, had e
nadted such laws, established such tribunals, arid
organifed such a system of police, thata purse
of gold might be hung up on the high way
without any danger of being taken. Had the
honorable gentleman from Kentucky emitted in
those days he would perhaps have attempted to
convince old Alfred, that what he considered as
the glory of his reign, was its greatest evil. For
by taking the unfrequency of crimes as a proof
that tribunals were unnecessary, and thus bold
ly substituting effect for cause, the gentleman
might demonstrate the inutility of any institu
tion by a system of reasoning the most fallacious.
But, Sir, if icitb that poor mrafure of ability
lobicb it has pleased God to give me, Im^rcb on that
ground , "wbieb Ihave been accuJlomed to deem solid,
Ifall fay that in so far as the terror of our judicial
infitutions prevented the perpetration of crimes, in
that Jame degree are tbofe inflictions ufeful. —
This would be my mode of reasoning, but for the won
derful difavery made by the honorable mover of the
resolution.
Me have been told of the great expense of the Ju
diciary—that it amounted to 137,000 dollars '
And thus attributing the whole expence of the eftab-
HJbment to this particular law, it Las been offumed
in argument that to repeal tie law would be to save
137i°°° dollars. If the other arithmetical argu
ments of tbe gentleman were equally incorrea, bis in
ferences will be entitled to but little attention.
Os this sum, it appears from a report of the Sec
;retary of the Treasury, tbat 45,000 dollars are for
the contingent expenses of juries, witnesses, % which
saves in feme meafureto few tbat it u expected much
business will be aaually done.
The expense arising under this law, tbat it is pro
posed lo repeal, amounts to 30,000 dollars, excluftie
oftS^OO dollars efimated for contingent expenses,
making together 45,000 dollars. But let us not flint
the allowance; threw in a few tboufands more, and
let the whole befated at 51,00— apportion this fan
among the people of the United States, according to
the census lately taken, and you will find that each
\ individual will pay juf one cent. And for this infg
nificantfaving of a cent a man, we are called upon to
give up all tbat is valuable to a nation.
° ne °f the great purposes of a government is to se
cure the peoplefrom foreign invafon. To be ready to
repel fueb invajion requires a great revenue and many
officers become neerffary to colled it. Such an invd
fan, however, may or may not take place. If Ijudge
from certain documents laid befae us, those who ad
minyier our affairs have but little approbation of tbat
event. If then there be little or no such danger, or if
the people be fufficieutly Secured against it, whaf else
have they a right to as for in return for their money
expended in the support of government ? They have
a "g'' t° a ,f or the protection of the law in proper
courts of jufice. to secure the weak agaiufl tbs flrong,
the poor againf the rich, the oppressed againf tbe op
*prfor, And is this little which they aft, to be de
nied ? Are the means by which the injured can obtain
>refefs, to be curtailed and diminijbed? Much may
be feared from armies — They may turn their swords
againf our bosoms, they may elevate a thief to despotic
power. But what danger is to be apprehended from
an army of judges ?
^Gentlemen fay, recur to the ancient system. What
is tbat system ? Six judges of the /up erne court to
ride the circuits of America twice a year, and ft
twice a year at the feat of government. Without on
pairing into the accuracy of a fatement made by the
gentleman refpsaing the courts of England, in which,
I apprehend, be will find bimfelf deceived ; let me f
what would be the effects of the old system bere. Cf
an eye over the extent of our country, and a moment's
confderation will few, tbat thefrf magistrate in fe- 1
Bang a chara&er for the bench, mujifeek less the
learning of a judge, than the agility of a pof boy.—
Can it Lepfible, tbat men advanced in years,forfuch
alone can have the maturity of judgment fitting for the
office, tbat men educated in toe closet, men, whofrom
their habits of life mus have more frengtb of mind
than of body ; is it, Ifay,poffible, tbat fueb men can
be running from one end oj the continent to the other ?
Or if they could, can they fed time to Lear and decide
causes ? I have been told by men of eminence on the
bench, that they coulTnot bold their offices under the old
arrangement.
What is the present system? You
have added to the old judges seven
diftrid, and sixteen circuit judges.—
What will be the effect of the desir
ed repeal ? Will it not be a declara
tion to the remaining judges that they
hold their offices fubjed to your will
and pleasure ? And what will be the
result of this ? It will be that the
check established by the constitution,
wished for by the people, and neces
sary in every contemplation of com
mon sense, is destroyed. It had been
said, and truly too, that governments
are made to provide against the follies
and vices of men. For to suppose that
governments rest upon reason, is a piti
ful iblccifm. If mankind were reason
able they would want no government.
Hence checks are required in the dis
tribution of power among those who
are to exercise it for the benefit of the
people. Did the people of America
vest all powers in the legislature ? No.
They had vested in the judges a check
intended to be efficient; a check of
the firft necessity to prevent an inva
sion of the constitution by unconstitu
tional laws, a check which might pre
bvent any faction from intimidating or
annihilating the tribunals themselves.
On this ground, said Mr. Mairis, I
Hand to arrest the vi&ory meditated
over the constitution of my cpunrry;
a vidory meditated by those who
with to prostrate that constitution for
the furtherance of their own ambitious
views. Not of him who had recom
mended this measure, nor of those who
now urge it ; for on his uprightness, and
their uprightness I have the fulleft reli
ance ; but of those in the back ground
who have further and higher objects.
These troops that protest the outworks
are to be firft dismissed. Those posts
which present the strongest barriers are
firft to be taken, and then the consti
tution becomes an easy prey.
Let us then secondly, confider whe- 1
ther we have constitutionally a power
to repeal this law. (Here Mr. Mor
ris quoted the third art. and firft Sec
tion of the constitution.) I have heard
a verbal criticism about the words fa//
and may, which appeared the more un
necessary to me, as the fame word,fa//,
is applied to both members of the fee-|
tion. For it fays "the judicial pow-I
er, &c. Ihall be veiled in one Supreme|
court and such inferior courts as thel
Congress may from time to time or-|
dain and efiablifh."—The legislature,|
therefore, had without doubt the right I
of determining in the firU inttance, what
inferior courts should be eflabliihed, but
when established the words are impera
tive, a part of the judicial power (hall
vest in them—And 'the judges Jhall
hold theiroffices during good behavior.'
'They ^//receive a compensation which•
fall not be diminilhed during their con
tinuance in office.' Therefore, whether
the remarks be applied to the tenure of
office, or the quantum of compensation,
the constitution is equally imperative.
After this exposition, gentlemen are
welcome to any advantage to be de
rived from the criticism onfall & may.
But another criticism, which, but
for its serious effefts, I would call pleas
ant, has been made; the amount of ;
which is, you Ihall not take the man ;
• from the office, but you may take the
office from the man; you Ihall not
drown him, but you may fink his boat
under him; you shall not put him to
death, but you may take away his life.:
The conftitudon fecurcs to a judge his
I office, fays He shall hold it, that is, it
Ihall not ;' taken from him during
good behavior ; the legislature ihall not
dimmifh, though their bounty may in- :
crease his friary ; the constitution pro
vides perfectly for the inviolability of his
tenure ; but yet we may destroy the of
fice whicu mve cannot take away, as
if the dettrhaion of the office would
not as effectually deprive him of itas;
the grant so another person. It is;
admitted thkt no power derived from
; the confutation can deprive him, of
I the office,—fand yet it is contended
that by repeal of the law that office
may be deftroy^d. Is not this abfuid?
It had been Lid, that whatever one
legislature can do another can undo ;
because no legislature can bind its fuc
cci'lhr, and therefore that whatever we
make we can deßroy This I de^y
on the ground of reason, and on that
of die constitution. What! can a man
destroy his own children 2 Can you an
nul your own compass ? Can you an
nihilaie the national debt ? When you
have by law created a political exig
ence, can you by repealing the law
dissolve the corporation you had made ?
When by your laws you give to an indi
vidual any right whatever, can you by
a fubfeq tient law rightfully take it a
wa, ? No. When you make a compact
you are bound by it. When you make
a promise you mutt perform it. Eftab-
Ilifh1 lifh the contrary doChine and what fol
-1lows? The whim of the moment be
comes the law Bf theland; your country
will be looked upon as a den of rob
bers ; every honest man will fly your
shores. Who will trust you, when you
are the firft to violate your own con
traces ? The position, therefore, that the
legislature may rightfully repeal every
law made by a preceeding legislature,
when, tested by reason, is untrue ; and
it is equally untrue when compared
with the precepts of the constitution ;
for what docs the constitution fry ?
" You shall make no ex pod frßo law."
Is not this an ex ,fflfaßo law ?
Gentlemen fay the system of the last
session is mere theory. For argument
fake it shall be granted; and what then
is the language of reason ? Try it, put
it to the test of experience. What re
fped can the people have for a legisla
ture that without reflexion meets but
to undo the ads of its predecessors ? Is
it prudent, is it decent, even il the law
were unwise, thus to commit cur repu
tation and theirs ? Is it not highly dan
gerous to call upon the people to de
cide which of us are fools ? for orfe of
us mutt be.
And what would be the effed on the
injured man who feeksredrefs in a court
of justice, and whom, by this repeal,
you shall have deprived of his right ?
You have laved him a miserable cent,
and you have perhaps utterly ruined
him.
But the honorable mover of the
resolution has told us not only what is,
but what is to be. He has told us not
only that suits have decreased but that
they will decreale, and, relying on his
pre-conception, informs us that the in
ternal taxes will be repealed; and
grounds the expediency of repealing
the judiciary law on the annihilation df
these taxes. Thus taking for granted
the non-existence of a law that yet exists,
he infers from its deftru&ion, and the
consequent deflation of suits under it,
the inutility of the judicial establish
ment. And when he has carried his
present point, and broke down the ju
diciary system, he will tell us perhaps
that we may as well repeal the internal
taxes, because we have no judges co
enforce the collection of them.
But what will be the effect of these
repeals,and of all these difmiffions from
office ? I impeach not the motives of
'gentlemen who advocate this measure.
In my heart I believe them to be up
right. But they fee not the conse
quences—We are told the States want,
and ought to have more power. We
are told, that they are the legitimate
sources from which the citizen is to de
rive protection.—Their judges arc, I
I suppose to enforce our laws—Judges
I appointed by State authority, support-
I ed by State salary, and looking for pro-
Imotion to State influence, or depend
ling upon State party. There are some
ihonorable gentlemen now present, who
fat in the Convention which formed
this Constitution. * I appeal to their re
colle&ion, have they not seen the time
when the fate of America was suspend
ed by a hair ; my life for it, if another
Convention be afembled they will part
without doing any thing. Never in
the flow of time was there a moment so
propitious, as that in which the Con
vention afl'embled. The States had
been convincd by melancholy experi
ence, how inadequate they were to
the management of our national con
t cerns. The passions of the people
were lulled to Sleep—State pride slum
bered-the Constitution was promul
gated—and then it awoke ; and op
position was formed—but it was vain.
; The people of America bound the
States down by this compact
One great provision of the Constitu
tion, a provision, that exhibited the
; sublime Spectacle ofa great State bow
ing before the tribunal of justice, is
gone : Another great bulwark is now
to be removed.. You are told, you
mull look to the States for protection ;
your internal revenues are to be Swept
away ; your sole reliance mute rest up
on commercial duties—ln this reliance
you will be deceived. But what is tq
be the effect of all these-changes ? lam
afraid to fay —I will leave it to the
feelings and conferences of gentlemen.
But remember, the moment this U-
I nion is dissolved, we fliall no longer be
;governed by votes.'
Examine the annals oftyory, look into
tie records of time, je embat has been the
ruin fever, republic ? The vile love of
.popularity. %are we here? To
United States.
'= — =er^ -rain
T„„ r, L ADELPHM, JAN. 21.
, HE officers of the frigates Chesapeake
(Commodore Truxton,) Conftdlation, and
. c ^ °^ ercd t 0 re P air immediately to the ,
'fy° r aldington, and to hold themselves in 1
readmefs to fail upon an expedition, it is pre
sumed for the Med iterrancan.
new-york, Jan. 13.
INCENDIARIES.
2 eflerday morning an attempt -war made, by some
, person or persons at present unknown, to fa foe to a
block oj wooden buildings in Beaver-freet. The
alarm teas given by a young Itoman 71bo was pro
videntially pfogtbat way a little G j ter ten ; c @,
and perceived a Jmole issuing fam under the foob
before tie door of one oj the tafa, inhabited only in
the upper part by an old woman. On examination
it was differed that the fop was dually on
fire, and that a quality cf combat?ibles were placed
under it for tbe purfeofe of uccelei ating the definition
of tue building. o
[circular.]
American Cfylute, Havanna, Dec. 25, lßor
SIR,
By order of the government of this island,
published this day, the admission of American,
and all other foreign veffch, into any of its parts'
is prohibited from this date.''
, u *'" ° e picked, fir, to give immediate
publicity to this information, for the govern
ment of the merchants 2nd traders of your dif
trid. 1 remain, fir, with, refpcd, your ^ft
obedient servant.
(Signed) JOHN MORTON.
To the Colleger of the Cufoms, New-ZorL
P. S. Dec. 31. Since the foregoing, and
from reprefeurations made by mvfelf and the
merchants of the place, the fubjedt of admitting
for a time, those of our vcfiLly which would be
dispatched from the United States before this
intelligence could be fully known, has been ta
ken up by the government, and I have nodoubt
but that relief in the above cases (particularly
if with provifioos) will bo extended by a partial
or total permiffioa to dispose of their cargoes.
CA UTZON.
A number of counterfeit notes of the Bank of
the United States, are in circulation. They
resemble, as near'^ as poflible, the genuine notes
except in the water mark. They were made in
Springfield, New-Jersey ; one of the accomplic
es has been difeovofo, but was lucky enough
to make his escape before he could he arretted.
It is Aid he has gone eff to the weftern country'.
0
PORTLAND, JAN,
SUICIDE.
We hear from Turner, that on the nth iniL
Mr. Caleb Blake, of that pac., who possessed ;°i
property of about 3000 dollars, hung himfelf
from the fear of being cx r ofed to want !!
A coachman was found dead, on the morning
of the t6th but Attended by a hanckerchiu
to one of thchrrp.irons in William-ftrcet,
New-Yoik, nerr r^e north church,
A letter has been received from Halifax, dat
ed the lath ult. which Rates, “ That decrees
of the Court of Admiralty, to the amount of
one hundred tfmufand pounds ferling, have been
REVERSED." Thisjs British i%uffc e ; French
justice is quite another thing. It applies the
SPUNGE, intend of appealing to equity: and
witl wonderaus dexterity, crafts with a fin£ r c
scrawl, millions of American property.
A British fleet of five fail of the line has ar
rived at Jamaica, from England; and fevm
fail more are daily expedited. It is conjedw
, ed, that this force is defined to a& in concert
with the French troops in th; redudion of 6 ,
Domingo.
save the people from their greateftis. , ;
tofave them from themjilves. Whet
ed the ruin ot the republics of Greece ^7
Rome? Demagogues, who by flattery
gamed the aid of the populace to eftablijh
despotism., Eat if you will lout your eyes
j to the light of hitler,, and your ears to the
, voice of experience—fe at leaf what has
happened in your own times. In 1789, it'
;ffu HO longer a doubt with enlightened
Stahfmen, what would be the event of the
French revolution ; before theff of Jan
"'")' I79°> l''° only qufion was, who
। would become the defyot. The word Lib- 1
1 orty, indeed, from that day to this, had
i been funded in our ears, bw never had an,
t real exigence ; there is nothing left but ths
\word.
IVe are now about to violate the Confix
j tuhon. Once touch it with unhallowed
I hands, facrifee but one of its pr^fos,
and we arc gone. We commit the fate of
Ames ica to the mercy of time and chance.
I hope the honorable gentleman from
Maryland will pardon me, if from the Sec
tion of the Law which he has cited, I de
duce an inference diametrically opposite to
that fa which he has contended," H^ has
j toll us, teat " lee If Congress in reduc
\"^ ^74^ 0/ the Supreme crartfrom
.fix to free, have exercifd the right which
j is now to be used, and made a legifative
I conAumon of this chafe in the Confitu
; tndsn. ' But look at the law. ft de
clares, that this red^onfoall not be made
—until by death or rtfgnation only five
\ judges fall remain. Thus in the ver,
[ moment when the, exprtf the opinion, that
:Jf-J"'^ are jefficient, tee, acknowledge
i teeir incompetency to remove tbejixd judee
j and thereby make the Igifative declara-
I tson, that they had not the rift now con
\ tended for."
[Mr. Morris here noticed sane other
remarks welch baa fallen from the gentle
manfam Maryland, Mr. Wright, on tie
conjiructson of the Constitution. But a ,
the, are fufantiall, comprifd in the fere
^dingfatement, we omit them.]
He concluded b, recapitulating Lis ar
guments A contract, said he, is made
between the government andt : ejudges. The
President appoints. The legislature fixes
hs jalary. He accepts the office. 'The
contras is complete. He is then under the
the froteffion of the Caution, which
neither the President nor Congress can in
fringe. The contrast is a solemn one.- Can
^J OII can, you may throw
this Confatution into the fames—it is
gone, st is dead.
I assy ■ —