The New Hampshire gazette — Portsmouth [N.H.], 1802-01-26 00:00:00, page 2

T LN S LKy 4. O
JUDICIARY ESTABLISHMENT
Mr. Brackenridee. It will be ex.
pedted of me, I presume, Sir, a 0 |
troduced the. resolution now under
consideration, to aflign my reasons for
wishing a repeal of this law.—This I
4hall do ; and shall endeavour to thew,
1. That the law is unnecessary and
improper, and was so at its paflage ;and
2. That the Courts and Judges cre
ated by it, can and ought to be abol
ished. |
1. That the a& under considera
tion, was unneceflary and improper,
is, to my mind, no difficult tatk to
prove.—No increase of courts or judg
es could be necessary or juftifiable, un
less the existing courts and judges
were incompetent to the prompt and
proper discharge of the duties con
ﬁgned to them. To hold out a thew
of litigation, when in fa& little exists,
must be impolitic ; and to multiply
expenlive systems, and create hosts of
expensive officers, without having ex
perienced an a&ual neceflity for them,
must be a wonton walte of the public
treasure. - 8
The document before us shews, that
at the passage of this a&, the exilting
courts, not only from their number,
but from the suits depending before
them, were fully competent to a speedy
-decision of those fuits—lt shews, that
on the 15th day of June last, there
were depending in all the Cireuit
Courts (that of Maryland only except
ed, whose docket we have not been
furnifhed with,) 1539 suits. It thews
that 8276 suits of every description
have come before those courts, in 10
years and u&:ards. From this it ap
“pears, that the annual average amount
of suits has been about Bco.
But sundry contingent things have
conspired to swell the circuit court
dockets. In Maryland, Vi irginia, and
in all the southern and south-western
states, a great number of suits have
‘been brought by British creditors : this
species of controversy is nearly -at an
ol oo 0 e b g
In Pennsylvania, the docket has been
{welled by prosecutions in consequence
of the Western infurredtion, by the
~difturbances in Bucks and Northampton
These I find dmount in this State to
e &st . vl o
Site. . 1 find too, that of the fx hun
s L s g g g e
SENATE OF THE UNITED -STATES.
i -~ MONDAY JAN. 4, 180¢.
THE following Resolution, after some
discussion, was passed :— :
Resolved, That any Stenographer, or note
taker, defircus to take the debates of the
Senate on legislative bufinels, may be admit
ted for that purpole, at such place within the
trea, of the Senate chamber as the Presi
dent shall allot, ;
ﬁf}:’t Yeas and Nays being taken upon
-this resolution, were as follow ¢ -
AYES.—Meflrs. Anderson, Baldwin,
Brackenridge, Brown, Cocke, Colhoun,
Ellery, T. Foster, Franklin, Jackson, Lo
gau, 5. T. Mason, Nicholas, Stone, Sump.
ter and Wright.—l 6. *
NAYS.—Meflrs. Chipman, Dayton, D,
Foster, Hillhoufe, Howard, J. Mason,
Morris, Ogden, Olcott, Sheate, Tracey and
‘White,—
WEDNESDAY, JAN, 6.
A meflage was received from The Prefi
dentof the United States, by Mr. Lewis, his
Secretary 5 which was not read, being ap
parantly on Executive bofinefs. 2
"PRESIDENT’s MESSAGE. .
On motica of Mr. Brackenridge, the
Senate proceeded o, jsh= into consideration
that part of The President’s meflage, at the
commencement of the {effion, which relates
tc the Fudiciary [y fiem.
Mr, Brackennidge {from Kentucky ) slated,
that he had given notice two days ago, that
he would on this day submit to the consid
eration of the Sepate, two reflolutions re
{peltiog the Judiciary eflablifhment of the
United States. As however these resolu
tions were not necessarily connefled, and as
they might be diftinétly discussed, he con
fined himfelf to the firl, by moving, That
the a&t pafled lalt fcﬂion'rgpc&z'ng the Fu
diciary Eftablifkiment of the United States
be repealed.
This motion was seconded by Gen, Ma.
son, when a short conversation ensued, in
which Mr. Brackenridge said he did not de
sire to precipitate a decision on the question.
Mr. Tracey was of opinion, thatthe {ub
je&t ought to h;ve been referred, in the firft
snflance, to a Mpecial committee,
Mr, J. Mason, (from Mafachufetts) dif
ferred from the gentieman from Conne&licut
on the point of order. He belicved the
mode now pursued, was peefeitly corret,
and conformable to 2 principle adepred this
feflion, that the Senate was to be considered
as in commitiee of the whole on the Presi
dent’s Meflage, whenever taken up. Naor
did he discern the necessity, in a body (o fe
leét as this, of referring each fubje&t to a
feiett committee.— But as the fubjeét is ex
tremely important, and some gentlemen
seemed vnprepared for the discussion, he
moved its postponement until Friday.
" Mir. Brackenridge said, that though he
had given notice, in his opinion fufficient,
of this purpose, yer; not withing a precipitate
cifcaflion, he wpuld agree to the deliced de
la, . \
- Referred to Friday next.
| so small 2 portior of private litigation,
| in greal nart of which the Brate courts
Lognicht, T | UG ve e ovfinete that
RAk il Y i h o G w ‘(H"-L» YRS
and cxpend in indiviary regulations l
wesean tand in need OF 38 judges ;
the anmasl fom of 27000 dollars { |
~ No other country, whose regula..
tions I have any knowledge of, fur
~ nifhes an example of a {yftem so pro
digal and extensive. In England
whose courts are the boast, and said to
be the security of the rights of the ni
tion, every than knows there are bt t.
12 judges and three . principal courts.”
These, courts embrace in their origine
al or appellate jurisdiction almost the
whole circle of human concerns. j
The King’s bench and Common
Pleas, which consist of four judges
each, entertain -all the common law
suits of 40s. and upwards, originating
among nine millions of the most com
mercial people in' the world. They
moreover -revise the proceedings of
not only all the petty courts of record
in. the kingdom, even down to the
courts of Piepondre ; but also of the
Court of King’s bench in Ireland ;
and these supreme courts’ after centu
ries of experiment, are found to be ful
ly competent to a// the business of the
kingdom. el
I will now inquire into the power
of Congress, to put down these addi
tional courts and judges.
ift. Asto the Courts—Congress are
empewered by the Constitution ¢ from
time to time, to ordain and efltablifh
inferior courts’” Thea& now under
confidetation, isalegiflative con/fruction
of this clause in the Constitution, that
Congress may aboli/h as well as create
these judicial officers ; ‘becaufe, it does
expressly in the 27th fe&tion -of the
a&, abolish the thenexifting inferior
courts, for the plirpofe of making way
for the present. This construction: I
contend is correct ; -but it is equally
_pertinent to my obje&, whether it be,
ox;? not. .If it be corre&, then the
present ibferior courts may be abolith
| ed as conflitutionally as the last ; if it
“be not, then the law for abolishing the
former courts, and establishing the
present, was unconstitutional and con
sequently repealable. .~ . ...
1- But independent of thiﬁﬁxﬁafw
| confiru@ion on which Ido nos found
‘my opinion, nor mean to rely my ar
gument, there is little doubt indeed, in
on thislaw. The 11t fe@tion of the 3d
art. vests Mﬁaﬁﬁdpﬂwr ~of the
| “sz,%* *W ATRNE s
courts 3 but it is alfeady & discretions
commenced there, 196 of them have
bee:‘xuprafec&ﬁoﬁrﬂ“ﬁnder ‘the laws of
the United States. Bekolora s
In mott of the States there have been
prosecutions under the Sedition A&.
This source of litigation is I trust fors
ever dried up.—And lastly in a// the
States 2 number of [uits have arisen
under the excise law ; which source of
controverf{y, will, I hope, before this
{eflion terminates, be also dried up.
- But this fame document discloses
another important fa& ; which is,
that nevertheless all these untoward
and temporary sources of federal ad
judication, the suits in those courts are
decreasing ; for from the dockets ex
hibited éxcept Kentucky, and Tenncjfee,
whose suits are fammed up ~ the ag
gregate) it appears that in 1799 there
were 1274 ; and in 1800 there were
687 suits commenced ; shewing a de
crease of §B7 suits.
Could it be neceflary then to increase
courts when suits were decreasing ?
Could it be neceffary.to multiply
judges, when their duties were dimin
ithing ? And will I not be jultified
therefore, in affirming that the law
was unnecessary, and that Congress
aGed under a mistaker impreflion,
when they multiplied courts and
judges at a time when litigation was
aftually decreasing. «
* But, Sir, the decrease of business
goes a small way in fixing my opinion
on this fubje&. lam inclined to think
that {o far from there having been a
neceflity at this time for dn increase
of coufts and judges ; that the time
never will arrive, when America will
stand in need of 38 federal judges.
Look, Sir, at your Conflitution, and
fee the judicial power there consigned
to federal courts, and seriously ask
yourfelf, can there be fairly extraéted
from those powers fubjeds of litiga
tion fufficient for fix supreme and 32
inferior court judges :(—l'o me it ap
pears impoflible.
The judicial powers given to the
federal courts-were never intended by
the Constitution to embrace, exclusive
ly, fubje&s of litigation, which eould
with propriety be left with the State
courts. Their jurisdiction was intend
ed principally to extend to- great na
tional and foreign coneerns.. Ixcept
cases arising under the lJawsof the U
nited States, I do not at present recol
le&, but three ot four kinds in which
their power extends to fubjeéts of liti
gation, in which private persons only
are concerned. And can it be pofli
ble, that with a jurifdi&ion embracing
But because the constitution declares
that a judge shall hold his office during
good behaviour, can it be tortured to
mean, that he shall hold his office af
ter it #s abolished ? Can it mean, that
his tenure fhovld be limited by beha
ving well in an office, which did not
exist? Can it mean that an office may
exist although its juties 2ve extiné ?
Can it mean, in (hor¢,tliat the shadow,
to wit, the judge, ean remain, when
the {ubftance, to wit, the office, is re
moved 2 It. Minft have -‘otended all
Ahsfe abforditics, or jt mal admisa
conftradtion which will avoid them.
That confiruéion obviously is, that
a judge iuould hold awm exsfting office,
{o long as he did his duty in that of
fice ; and not that he thould hold an
office that did not exist, and perform
duties not provided by law. Had the
conftru&ion which I contend against
been contemplated by those who fram
ed the con(fitution, it would have
been neceflary to have declared ex
plicitly, that judges should hold their
offices and salaries during good beha
o . /J
viour.
Such a conftru&ion is not only ir
reconcilable with reason and proprie
ty, but is repugnant to the principles
of the constitution. It is a principle
of our constitution, as well as of com
mon honeflty, that no, man shall re
ceive public money, but in considera
tion of public services. ~Simecure of
fices therefore are mnot permitted by
our laws or constitution. =By this con
tru&ion, complete sinecure offices will
‘be created ; hosts of constitutional
pensioners will be fettled on us, and
we caanot calculate how long. This
is really creating a new species of pub
lic debt ; not like any other of our
debts, we cannot discharge the prin
cipal at any fixed time. It is worse
than the deferred stock ; for on that
you pay an annual interest only, and
the principal is redeemable at a given
period. But here, you pay an annual
principe], and that Principal irredeem
able except by the will of Providence.
Tt ay suit countries where public
debts are considered as public bles
sings ;. for in this way a people might
soon become superlatively blefled in
t et me not be told, fir, thatthe
Alaries in the present case, are incon
idekable, and ought not to be with
“heldt; and that é{i oftrine is not a
rolls -one. . ct,*it l&;th‘e
is hetrodox forone dollar, it is“€gually
{o for a million.—But I contend the
,;pﬁﬁei& e, if once admitted, may be
~extended. &m&wel«w&- . Sup-
P Sucks b happen, - that
e i
-driends ? Might not sixty, as well as
TURHORG DR e R
fthe contiriciion coniel ~l’.“u-4 OF 5 ,
them. The la%uage of the Contti.
tution is very different when regula
tions are not less difcretional. - For
example—* The trial, fays the Con
ftitation, of all crimes, (except in cases
of impeachment) /ball be by jury :
Representatives and direét taxes fball
be applied according to numbers.—
Allrevenue bills /pall originate in the
House of Representatives, &c.” It
would therefore in my view be a per
version not only of language, but of
intelle@, to fay, that although Con
gress may from time to time establish
inferior courts, yet when established,
that they /ba/l not be abolithed by a
subsequent Congress - poffefling equal
powers. It would be a paradox in
legislation. e
2d. As to the Judges.—The judi
ciary department is so conftruced as
to be fufficiently secured against the
improper influence of either the exe
cutive or legislative departments.—
The cearts are organized and eftab
lithed br the legislature, and the exe
cutive creates the judges. Being thus
organizd, the constitution affords the
properﬁecks to {fecure their honesty
and in pendence in office. It de
clares they shall not be removed from
office- during good behaviour ; nor
their faliries diminished during their
continuance in office. From this it re
sults, that a judge, after his appoint
ment, is totally out of the power of
the President, and his salary secured
against. legislative diminution, during
his_continuance in office. The firlt of
these checks, which proteéts a judge
in his office during good behaviour,
applies to the President only, who would
otherwise have poffefled the power df
removing him like all other officers a¢
pleasure ; and the othet check forbid
ding a diminution of their {alaries, ap
pliestothe /egiflatureonly. They aretwo
{feparate and diftiné checks, furnithed
by the constitution against two diftint
departments of the government ; and
they gre the only ones whiclf are or
ought to have been furnithed on the
fubjeét.
Upon the whole fir, as all courts
under any free government muflt be
created with an eye to the administra
tion of justice only ; and not with any
regard to the advancement or emolu
ment of individual men ; 'as we have
undeniable evidence before us, that the
creation of the courts now under con
sideration was totallyunneceffary; and
as no government ¢an, 1 apprehend,
feriouf%y deny that this legislature has
a right to repeal 4 law enacted by a
preceding one ; we will, in any event,
discharge our duty by repealing this
law ; and thereby doing all in our
power to corre& the evil, If the judg
es are intitled to their. salaries, under
the constitution, our repeal will not af
fe& them 3 and they will no doubt re
sort to their proper remedy : For
where there is a constitutional right,
there must be 2 remedy:: '
[ Mr. Cocke followed Mr. Brack
enridge on the fame fide 3—they were an
fawered by Mr. Mason, of Maflachufetts,
in an excellent Speech, about the length of
. Mz, B’s. M. Wright, of Maryland,
supported the resolution s~—He awas fol
l Lowed by Mr. Morris, of New-York, -
gai:xﬁ' it. . The debate shall be continued
in the Gazette. T 000 0 e
e eufe CMONDAY, JANG 1L
- 'The Apportionment Bill; as it came
- from the House, was read a third
awhich aill give the next House of Repre
conftization presumes eorruptiot May
happen in any department of the gov
ernment, by the checks it has furnifh
ed against it; and as this confiru&ion
dm_nOt. open a wide door for cor
ruption, it is but fair reasoning to shew
the dangers which may grow out of
it ; for in the conftruéion of all in
struments, that which will lead to in
convenience, mifchief or absurdity,
ought to be avoided. This do@rine
has another difficulty to reconcile :—
After the law is repealed, they are
either judges, or they arenot. Ifthey
are judges, they can be impeached ;
but for what ? For mal-feafance in of
fice only. How, I would ask, can
they be impeached for mal-feafance iz
office; when their offices are abolished ?
They are mnot officers, but fill they
are intitled to the emoluments annex
‘ed to an office. Although they are
judges, they cannot be guilty of mal.
feafance, because they have no office.
They are only qua/f judges so far as
regards the duties; but real judges so
far as regards the fa/ary. It must be
the salary then, and not the duties,
which constitute a judge.—For my
part, I do not know under what class
of things to range them, or what name
to give them. They are unacknow
ledged by the letter, spirit, or genius
of our constitution, and are to me
non-defcripts. .
There is another difficulty under
this conftrucion still to encounter, and
which also grows out of the conftitu
tiod.—By the Constitution a new
state may be formed by the junc
tion of two or more states, with
their assent and that of Congress.
If this doétrine, once a judge and al
ways a jud‘ge be correét, what would
you-do in such an event, with the dis
trict judges of the states who formed
that jun&ion ? Both would be unnecef
{ary, 2nd you would have in a single
state, two judges of equal and concur
rent juri{diftion ;oroneareal judge with
an office, and another a quasi judge
without an office. The States alio
forming such jun&ion, would be equal
ly embarrassed with their State judg
es 3 for the fame conftru&ion would
be equally applicable to them.
Upon this eonftraéion also, an in
fallibility is predicated, which it would
be arrogance in any human institution
to assume, and which goes to cut up
legislation by the roots.—We should
be debarred from that, which is indul
ged to us from a higher source, and
on {ubjeéts of higher concern than le
giftation, T miean a retradion from.
and corre@iion of our errevs. Un all
Oﬂcr!&@gu‘lv lon we are al
fowed io¥Betns 10 charige our minds;
except on jdictal fubjedts, which of all
others 1s the moit. comuplex and ¢l
cult. I appeal to our own Statute
book to ptove this difficulty ; for in
ten years Congress have passed no less
than twenty-fix Jaws on this subject.
I conceive, fir, that the tenure by
which a judge holds his office, is evi
dently bottomed on the idea of secur
ing his honesty and independence,
whilst exercising his office. The idea
was introduced in England, to coun
terac the influence of the crown over
the judges; but if the construction
now contended for shall prevail, we
shall in one mistaken imitation of this
our favorite prototype outstrip them ;
by establishing, what they have not, a
judicioligarchy ; for there, their judg
es are removeable by a joint vote of
Lords and Commons. Here ours are
not removeable, except for malfea
fance in office, which malfeafance
could not be committed, as they would
have no office. : _ _
£ Yo TUESDAY, JAN. 12,
_ 'The Senate took up Mr. Bracken
ridge’s resolution. Gen. Jackson, of
Georgia, spoke in favor 5 and Mr. Tra
¢y, of Conneicut, against it. After
which, the further consideration of it
was poftposted until to-morrow.
R SRR o
HOUSE OF REPRESENTATIVES,
" TUESDAY, JAN. 5.
The following memorjal was presented
from Lewis du Pre. vt
Tothe Government of the United States i
_ Congrefls gffembled, v
.. Dear Fraenps, o g
It has pleased Almj bty Gop (for pur
poses most extensively iencvolcnt) 1o difs
cover to me the principles of the perfeds
motion, (vylgarly called perpeT UAL mos ~
tion) for which I trust I am thankfal (as, no
.doubt, every citizen of the {aper-eminently
favored land of Columbia ought to be) for
the peculiar blefling. ' |
In prolecuting 2 suit for the customarily
exclusive pecuniary advantages which the
‘prafitice of ancient liberality has established,
as the reward of perfiversng ingenuity and
industry, I meet with difficulties inf; mount.
able without the aid of legiilativginter ‘::‘;
ance. " SEE i
I therefore trust that your jollice and re--
publican patriotism will induce you to take
the fubjeét into.confideration, and asﬁ'ﬁ
ly as possible obtain, fram the critical catket
where it remains” deposited, the precious
beunty, to effe@uate which you hc@%;po{'.‘
fels a.promile of the cordial co-operation of -
your real fiiend and fellow-citizen,
LEWIS pu PRE.
50tk day of perfedt motion,
January 1, 1302, } ‘
On a motion to refer the above pefition
to a fele&t committee, ‘
Dr. Mitchell said if there was ever 3 case
in which it was proper to decide againit the
reference of a petitgp to 2 committee, that
this was such an one. It was evident on
the face of the petition just read, that it was
a strange disordered compolition ; and the
obje&@ which the petitioner pretended to
have atiained, was contrary to the physical
laws of matter. All experience and ail
philosophy was opposed to thg netions of
the kind contained in the paper before the
house. .He hoped there wouid be no re
ference of such a visionary scheme to any
committee whatever. It was not worthy of
the dignity of the national legiflatare to
~give a serious attention to physical impossi
bilities. :
After some debate about the dilpofal of
the petition, it was committed to Meflys.
Southard, Lowndes and Mitchell,
WEDNESDAY JAN. 6.
- THE APPORTIONMENT BILL,
Being the order of the day, was taken up.
It was moved, that it be recommitted toa
committee of the whole. On this motion
a debate of length ensued, during which al
most every member accuflomed to {peak,
took the floor.
In fannr of commiiment, it was said that
as the {ulyeft was ackrowl” 1. 'ly of great
importance, delibesation .’ dent.to
s houid be had €Bt a 8 Pigs 2 %
be informalitics i’ several s !’o \
i masThels, @t Becrme .'” ‘icir.
eamfpedt beture diey o/ 0 NRem S
that some of these infor | " Lired le
gislative provision ;tF _ * ute of Ten
ncifee, the retarn m 7**9% ¥ yond the le
gal period ; thatin *" ¢of Maryland,
there had been an acuiunal return recently
made ; and ip the case of South-Carolina,
the marfbal did not appear to have been.
sworn in the time prescribed by law. That
it was a serious consideration, whether the
House could receive and aft upon informal”
returns. But that, at any rate, such inform
alities' might require the interposition of
Con rcfs,gbcfore the passage of this a&.
: /gainjl the eommitment, and in favour of
the passage of the bill, it was contended that
there existed no disposition to precipitate a
decision on this, or any other fubjeét ; thaz
in truth, it had been delayed from day to
day, and even from week to week, to allow
the fullef time for refle@ion ; that after this
time had been allowed, the discussion had
been patientr =yered upon, aud the vari
ous argumen " . gentlemen had been beard
without intefraption ; that a decision had at
length been made in favor of a particular
ratio ; and then, and not until then, after
some gentlemen had been thwarted in their
favorite meifures, charges of precipitation
had been wrged by them.. What were
the realons'Migned for recommitment at
this perior's: Not that the' ratio agreed to
was an imgoper one, but that there were
certain informalities in some rctuh
required a cure. But how were thele In
formalities to be cured’?, Was it to be dane
by delaying the passage of this law until Tuch
cure was mad;r ? Iﬁ'fucf{;‘, " rexng:
tioned by the House, where wonld itnd *
Would i few days or a few ‘weeks accom
plish it ? The fa& was, ”ugh;hcrggnifgbt
be some 'irregnlarilz’in o\{ retarns, that
there was no reason to ‘believe, or evem
{ufpicion whispered, that there was atg frau.
dulent return. The House mauft aét npon
wthe returns they had, as to open the door to
further inquiry would be an a&t of injustice
to rempte slates, and might entirely 'defeat
the passage of any law on the {n!ge&v-ihia
{eflion. LRI e
The debate was condufted with uncom
mon warmth, and personal insinuations and
political refletions were made and repelled
with keenefs. :
The question on récommitment was taken .
and loa.'-Ayes 4—Nayes 55.~0n the
v%ue{tion shall ghc%ill_ pass ? The Ayes were
85.---Nays 4.---The Noes were Meflrs.
Davenport, QVan Renflelear, Walker and
T.Momriee = - e
, A THURSDAY, JAN. 7. .
A memorial was presented from the Seh
ciety of Friends at Baltimore, slating that no
progress can be expeéied relative to the in
| twdu&a; of thé ufeful arts :,::?}g the In
dians, unlefsthe great quantity of fpiritucus
liguors at present fpresd_among them by
traders is intirely fupprefled. This memo..
. § § Wk M SRt PR e T