Republican ledger, and Portsmouth price current — Portsmouth, N.H., 1802-02-02 00:00:00, page 2

The King's bench and Common Pleas, which
confi ft of four judges each, entertain all the com
mon law suits of 40s. and upwards originating a
mong nine millions of the mod commercial peo
ple in the world. They moreover revise the pro
ceedings of not only all the petty courts of record
in the kingdom, even down to the courts of Pie
poudre ; but also the court ofking's bench in Ire
land : and these supreme courts af.er centuries of
experiment are found to be fully competent to all
the butinefs of the kingdom.
I will now inquire into the power of Congress,
a put down these additional courts and judges.
Ift. As to the Courts. —Congress are empower
ed by the Conttitution “ from time to time, to or
dain and eftablilh inferior courts." The aft now
under consideration, is a legislative confirmation
of Riis clause in the constitution, that Congress
may abolish as well as create these judicial officers ;
because, it does expreflly in the 27th feftion of the
aft, abolish the then existing inferior courts, for
the purpose of making way for the present. This
conftruttion I contend is correct ; but it is equal
ly pertinent to my object, whether it be, or be
not. If it be correct, then the present inferior
courts may he abolished as constitutionally as the
lalt ; if it be not, then the law for abolishing the
former courts, and eftablilhing the present, was
unconllitutional and consequently repealable.
But independent of this legislative conttruftion
on which 1 do not found my opinion, or meati to
rely my argument, there is little doubt indeed in
my mind, as to the power of Congress on this law.
The iff feftion of the 3d article, veils the judicial
power of the United States in one supreme court,
and such inferior courts as Congress may from
time to time, ordain and eltablifh. By this clause
Con refs may from time to time establish interior
courts ; but it is already a discretional power,
and they mar not etlablifh them. The language
of the conttitntion is very different when regula
tions are not left difcretional. For example—
“ The trial, fays the Confiirution, of all crimes
'except in cases of impeachment) shall be by jury :
Representatives and direct taxes (hall be applied
according to numbers. All revenue bills mail 0-
riginate in the House of Reprefeutatives, &c." It
would therefore in my view be a perverhon not
ony of language but of intelleft, to fay, that al
though Congress may from time to time establish
inferior courts, yet when ettablifhed that they (hall
not be abolished by a subsequent Congress poflef
fing equal powers. It would be a paradox in le
gillation. _ . .
2d. As to the judges.—The judiciary depart
ment is so conftruaed as to be Efficiently secured
against the improper influence of either the execu
tive or legislative departments. The courts art
organized and ettablifhed by the legislature, and
the executive creates the judges. Being thus or
ganized, the confutation affords the proper checks
to secure their honesty and independence in office.
It declares they shall not be removed from office
during good behaviour ; nor their salaries ditnin
ilhed during their continuance in office. From
this it results, that a judge, alter his appointment,
fa totally out of the power of the President, and
bis salary secured against Native ~nutim},
during his continuance in office. The firfl of these
checks, which protests a judge in his office during
good behaviour, applies to the President only,
who would otherwise have possessed the power of
removing him like all other officers at pleasure ;
and th* other check forbidding a diminution of
their salaries, applies to the legislature only. They
are two separate and diltind. departments of the
government ; and they are the only ones which
are or ought to have been furnifhed on the subject.
But because the confutation declares that a judge
shall hold his office during good behaviour, can it
be tortured to mean, that he shall hold his office
after it is abolished ? Can it mean that his tenure
should be limited by behaving well in an office
that did not exist? Can it mean that an office may
ex ; ft although its duties areextind ? Can it mean,
in th ,rt that the shadow, to wit, the judge, can
remain,'when the finance, to wit the office is
removed 7 It muff have intended all these absur
dities, or it mull admit a confirmation which will
them. . n
That contraction obviouflv is, that a judge
should hold an exiting office so long as he did bis
duty in that office ;aad not that he mould hold an
But this fame document difclofa another impor
tant faft ; which is, that nevertheless all these
untoward and temporary sources of fideral ad
judication, the foils in thole courts are decreasing ;
for from the dockets exhibited (except Kentucky,
and renneffee, 'whofe suits are summed up in the
aggregate) it appears, that in 1799 there were
1274 a °d in 1800 there were 684 suits commenc
ed ; shewing a decrease of 587 suits.
Could it he necessary then to increase courts
when suits where decreasing ? Could it be neces
sary to multiply judges, when their duties were
diminishing ? And will I not be jollified therefore,
in affirming that the law was unnecefl'ary, and
that Congress acted under a miltaken impression,
when they multiplied courts and judges at a time
when litigation was actually decreasing.
But, Sir, the decrease of butinefs goes a small
way in fixing my opinion 011 this fubjefl. lam
inclined to think, that so far from there having
been a necessity at this time for an increase of courts
and judges; that the time never will arrive, when
America will stand in need of 38 federal judges.
Look, Sir, at your Constitution, and fee the judi
cial power there consigned to federal courts, and
seriously elk yourfelf, can there be fairly extrafled
front these powers fubjefts of litigation fufficient
for fix supreme and 32 inferior court judges ?
—To me it appears iinpoflible.
The judicial powers given to the federal courts
were never intended by the Confutation to em
brace, exclusively, fubjefts of litigation, which
could with propriety he left with the State courts.
Theirjurifdi<ftioii was intended principally toex
tend to great national and foreign concerns except
caf<> arising under the laws of the United States,
I do not at present recolleft, but three or four
kinds in which private persons only are concern
ed. And can it be possible, that with a jurisdic
tion embracing so small a portion of private liti
gation, in great part of which the date courts
might, and ought to participate, that we can fland
in need of 38 judges ; and expend in judiciary
regulations the annual sum of 137,000 dollars ?
No other country whose regulations 1 have any
knowledge of, furnifhes an example of a system
so prodigal and extensive. In England, whose
courts are the boast, and said to be the security of
the rights of the nation, every man knows there
are are but twelve judges, and three principal
courts. These courts embrace in their original
appellate jurisdiction almost the whole circle of
human concerns.
h ope, before this session terminates, be also dried
up.
present case, are inconsiderable, and ought not to
be withheld ; and that the doctrine is not a dan
gerous one. I answer, it is the principle 1 con
tend against ; and if it is hetrodox for one dollar,
it is equally so for a million.—But 1 contend the
principle, if once admitted, may be extended to
• deftruQive lengths. Suppose it should hereafter
happen, that those in power should combine to
provide handfomel, for their friends, could any
way so plain, easy and effectual, present itfelf, as
by creating courts, and filling them with those
friends ?—Might not fikty, as well as sixteen, with
salaries of twenty thousand, instead of two thuu
fand dollars, be provided for it this way ?
The thing I trust will not happen. It is prei
fuming a high degree of corruption ; but it might
. happen under the conftrurtion contended for ; as
the constitution presumes corruption may happen
in any department of the government, by the
checks it has furuifhed agaiuft it ; and as this con-i
Itruction does open a wide door; for corruption,
it is but fair reasoning to shew the dangers which
pay grow out of it ; for in the contlruftion of all
inifruments, that which willed to, inconvenience,
mischief or absurdity, ought to be avoided, "this
doctrine has another difficulty to reconcile :—At-:
ter the law is repeated, they are either judges or
they are not. If they are judges, they can be im
peached /but for what ? Formal feafance in of
fice only. How, I would ask, can they be im
peached for malfeafance in office, when their of
fices are abolished ? They are not officers, but flill
they are intitled to the emoluments annexed to an
office. Although they are judges, they caunot be
guilty of malfeafance, because they have no office.
They are only quali judges so far as regards the du
ties, but real judge so far as salary. It muff be
the salary then, and not the duties, which consti
tute a judge.—For my part, ! do not know under
what class of things 10 range them, or what name
to give them. They are unacknowledged by the
letter, spirit, or genius of our confutation and are
to me, non-defcripts.
There is another difficulty under this contrac
tion till to encounter, and which alfb grows out
of the constitution.—-By the constitution, a new
state may be formed by the junction of two or
more dates, with their assent and that of Congress.
If this doctrine, once a judge always a judge be
correct, what would you do in such an event, with
the diftria judges of the slates who formed that
junction ? Both would be unnecessary, and you
would have in a single state, two judges of equal
and concurrent jurisdiction ; or one a real judge
with an office, and another a quasi judge without
an office. The States also forming such junction,
would be equally embarrassed with their state
judges ; for the fame confirmation would be e
qually applicable to them.
Upon this confirmation also, an infallibility is
predicated, which it would be arrogance in any
human institution to aflume, and which goes to
cut up legislation by the roots. —We should be de
barred from that, which is indulged to us from a
higher source, and on fubjetts of higher concern
than legislation, 1 mean an attraction from, and
correction of our errors. On all other fubjetts of
legillation, we are allowed it seems to change our
minds, except unjudicial fubjefts, which of all
others is the most complex and difficult. I ap
peal to our own statute book to prove this diffi
culty ; for in,ten years Congress have puffed no
less than twentyfix laws on this fubjeft.
I conceive, fir, that the tenure by which a judge
holds his office, is evidently bottomed on the idea
of securing his honefly and independence, whilst
exercising his office. The idea was introduced in
England, to counteract the influence of the crown
over the judges ; but if the construction now con
tended for fliall prevail, we shall in one mistaken
imitation of this our favorite prototype outfirip
them ; by edablifhing what they have not, ajudicial
oligarchy ; for there, their judges are r^moveable
by a joint vote of Lords and Commons. Here
ours are not removeable, except for malfeafance
in office, which malfeafance could not be commit
ted, as they would have no office.
Upon the whole fir, as all courts under any free
government mud be created with an eye to the*
administration of justice only ; and not with any
regard to the advancement or emolument of in
dividual men ; as we have undeniable evidence
before us, that the creation of the courts now un
der confederation was totally unneceffiry ; and as
no government can 1 apprehend, ferioufy deny
that this legislature has a right to repeal a law en
afted by a preceding one ; we will, in any event,
difeharge our duty by repealing this law ; and
thereby do all in our power to correct the evil.
If the judges are entitled to their salaries, under
the constitution, our repeal will not affect them ;
and they will no doubt resort to their proper
remedy : For where there is a constitutional right,
there mutt be a remedy.
WASHINGTON, JAN. IJ
The bill Indemnifying Samuel Dexter, hfy.
from the iffne of an adipo brought against him
on account of the loss of the house hired and im
proved @s the War-Office, was read twice.
The bill for the relief of John Hobby, a delin
quent collector of excise, was debated in commit
tee of the whole. It was proposed to extend its
office that did not exist, and perform duties not
provided by law. Had the construction which 1
contend againti been contemplated by those who
framed the conftittition, it would have been ne
cessary to have declared explicitly, that judges
should hold their offices and salaries during good
behaviour.
Such a construction is not only irreconcileable
with reason and propriety, but is repugnant to
the principles of the constitution. It is a princi
ple of our conftittition, as well as of common hon
esty, that no n^n fliall receive public money, but
in consideration of public feryices. Sinecure offi
ces therefore are not permitted by onr laws or
conflitution. By this construction, complete sin
ecure < ffices will be created ; holts ofconftitution
al penfiorers will be fettled on us, and we cannot
calculate how long. This is really creating a new
fpeciej of public debt ; not like any other of our
debts, we cannot difeharge the principal at any
fixed time. It is worse than the deferred flock ;
tor on that you pay an annual interest only,
and the principal is redeemable at a given
'period. But here you pay an annual princi
pal and that principal irredeemable except by the
will of Providence. It may suit countries where
public debts are considered as public bleflings ; for
in this way a people might soon become superla
tively blefled indeed.
Let me not be told, fir, that the salaries in the
Congress of tye Hniteb states.
House of Representatives.
—fa.4gfyl>. >% —
Balance in the Treasurer's hands, Ma,
May 20, 1800, 3334 2 2 4
Received for interest and principal of
stock in th? U. S. funds from May
20, 1800, to May I'2, 1801, by Trea
surer's account, 1'533 7°
On mafonian bonds, on the certificate
and indent taxes, and on the tax for
deficiency of soldiers, 684 5
Sum total on hand, May 20, 1799, 44 2 35 6c
Received for principal and interest of
stock in the U. States funds from
May 20th, 1799, to May 20th, 1800, 12991 18
On mafonian bonds and for certificates
and indent taxes, 162 20
„ „ 57388 98
Deduct the amount of expenditures of
every kind from May 20, 1799, to
May 20, 1800, as by the treasurer's
account, 24046 74
On the goth of May, 1799, there was
in the Treasurer's hands, as by his
account rendered to the committee,
—in cash, 25532 58
Specie Taxes outstanding, 18703 2
This being the only foundation on which
the right of taxation depends, any afleflment
of taxes or appropriation of monies for any
other purposes than are therein mentioned
are unconstitutional and opprellive. At the
winter session of 1799, a tax of tiventy-feven
thousand dollars was called for by an adt of
the General Court. If it can be shewn
that such a tax was at that time wholly un
necessary for the purposes contemplated in
the conflitution, certainly no ftockjobbing or
(peculating plan could juftify it.
The following ftatemeut (which is believed to
be accurate,) from which is excluded the tax of
27,000 dollars, and with it the purchase of the
bank Shares, amounting to 12 000 dollars, will
shew what would have been the flaie of the trea
sury if that tax had not been granted, nor the bank
(peculation made.
45559 99
Deduct expenditures of every kind
from May 20, 1800, to May 12, 1801
as by the treasurer's account, 26308 96
benefits to other delinquents. The bill was re
ported to the Honfe aud Ordered for a third read
ing, by a small majority.
Direa Tax.
Mr. Randolph presented a bill to amend the
Direct Tax Act—which was retf'ered for conside
ration to Friday. It provides lor the collection
of the Remainder of the Tax.
Foreign Coin.
Mr. S. Smith moved for a committee to bring
ina bill to continue in force the present law res
pecting Foreign Coin. Agreed to.
. TUESDAY, JAN. 14.
The bill for the relief of John Hobby was pass
ed.—A bill to prevent intrusion on public lands
was read twice.
Appropriations.
A bill was reported making provision for the
support of government in 1802. which was read
twice.
Mr. Dawson returned from France, took his
feat this day.
FRIDAY, JAN. 15.
Mr. Dawson said, he underflood, it was conceiv
ed by some persons, that after accepting a late
appointment from the President, he could not
constitutionally retain his feat in. that house. He
wished the point investigated. It does not appear
that any measures were taken on the fubjett.
I he House debated the bill refpeCting fugitives
from juftise.
MONDAY, JAN. 18.
Petitions from Hatters at Wilmington, D. and
New. York, for an increase of the duty on import
ed Hats, were presented and committed-
A resolution, calling for a ftatmente of the ex
penses of collecting the internal revenue, was
laid on the table.
Some progress was made in the bill for fixing
the military eflablifoment.
For the REPUBLICAN LEDGER.^
HANTONIENSIS,
To his Fellow-Citizens.
Balance in the Treasurer's hands, May
12, 1801, 19251 3
which exa&ly agrees with his own account.
By the foregoing statement, and by the
treasurer's accounts as reported to the Gen
eral Court in June last, it appears that there
was then in his hands 19,2, dollars and 3
cents, leaving out of the calculation the tax
of 27,000 dollars and the purchase of the
bank (hares as beforementioned ; to which
may be added the sum to be received for
principal and interest on the flock in the U.
States' funds from May, 1801, to May, 1802
about 11,000 dollars, amounting together to
thirty thousand two hundred and fifty one
THE right of taxing the people anddraw-;
ing from their pockets by law a certain
portion of their earnings belongs originally
to no man or body of men ; our rulers pos
sess it only by express delegation from thel
people themselves. The article in our con
stitution by which this power is surrendered,
is in the following words :
“ Full power and authority are hereby given
and granted to the General Court, from time to
time, to impose and levy proportional and reason
able affeffraents, rates and taxes, upon all the in
habitants and residents within the said state ; and
upon all the estates within the fame ; to be iflued
and disposed of by warrant under the hand of the
Governor of this state, for the time being, with'
the advice and consent of the Council, for the
public service, in the necessary defence and fap
port of the government of this fate, and the protec
tion and prejervation of the Jubjeds thereof, ac
cording to such atts as are, or fliall be in force
within the fame.”•
Continued from our last.
dolls cts.
dollars and three cents for defraying the rr.
ceffary expences of government, horn M., v
tXot, until some part of a tax that might be
granted some time in the year 1801, Would
be.realized. The whole of the public ex
penditures from May, 1800, to May, i& n ,
has been shewn to be 26,308 dollars ; this
furgwas considerably inercafed by the tx
penfe attending the choice of Electors, their
travel and attendance, and the tranfminir.g
their votes to the feat of the general govern
ment, also by the furn expended in the re
demption of date notes, certificates and bills
of new emission , nearly the whole of which
that have not been loft or deftroved are now
probably redeemed, so that if there had been
two sessions of the general court, as ufttri,
the whole expense of the year from May,
loot, to May, 1801, would not have exceed
twenty-two or twenty-three thoufud
an d would leave from seven to eight
", u ,nd dollars in the treasury, a sum am
y-y ufficient to defray the whole expense of
the June session ; to which may be added two
years income from the stock in the bank,
belonging to the state, before the last pur
chase of 24 Ihares, which has not been re
ceived, amounting as represented by the di
redors of the bank to two thousand five hun
dred dollars for the two years ; besides this,
on the fird of July, 1802, upwards of five
thousand dollars more would be due from
the loan office, for principal and interest on
funded stock, and the tax, the granting of
which might have been postponed for two
years, viz. from 1799 to 1801, would be re
ceived into the treasury in season to meet the
further demands of the year, 1802 :—but as
the legislature has seen fit to hold but one
fellion for the last year, the expense will be
so far reduced that every demand until the
June session of 1803, might have been dis
charged without the aid of any tax.
1 he above representation, if underflood,
will shew, beyond all controversy, that the
tax laid by the General court in 1799 was
not " necessary for the defence and Jupport of
the government of this, flare and the proreßion
and prejervation of the jubjeNs thereof, —
therefore unreasonable, unconstitutional, &
opprellive. If there be any, so far over
come by prejudice, party fpii it, or arido
ciatic influence ; so loft to reason, to Com
mon sense and common honesty as to believe
it juftifiable, at all events to destroy the
property, and to violate the constitutional
rights and privileges of one class of citizens
to promote the interests, or gratify the ava
rice and revenge of another ; and who be
lieve it neceflary to appropriate the monies
of the State to that purpose—they are
shewn that the tax was still unnecelFary,
that the twenty-four Ihares in the bank
might have been purchased, and an hand
some supply left in the treasury for public
or private purposes if no tax bad been grant
ed until another year.
Having shewn that the tax of 27,000 dls.
in 1799 was wholly unnecessary for purpos
es recognized by the Conflitution, and that
at the time of granting it an appropriation
of twelve thousand dollars was made for the
purchase of additional Ihares in the N. H.
Bank ; it is Submitted to the candor of an
impartial public, whether the original pro
moters of these a&s could have any other
principal object in view than to perpetuate
the deftructluu of the N. H. Union Bank,
which the tyrannical reftriding a& had be
gun, and to render the privileges granted to
the stockholders of. the old bank, by their
ad of incorporation, exclusive and perma
nent by making it more and mere for the
pecuniary interest of the state to have it so ?
If this be the tru^h (and he must be a feep
tic indeed who can doubt it) and if the assess
ment of a public tax, for the comparatively
harmless reason that it was not necessary,
be unconstitutional, and its advocates deserv
ing public cenfuie, and disapprobation, what
shall be said of those, who, by pofirive a&s
have violated the plained and most impor
tant principles of the conflitution ?
Fellow-Citizens,.
The fubjed that has been addressed to
your consideration is important, and merits
your serious and thoughtful attention ; the
interests, the privileges and the happiness of
one class of your brethren have been facri
ficed to the ambitious and avaricious views
of another ; and monies taken from your
pockets by law have been employed for that
purpose : those who hazarded their lives
and expended their property in accomplish
ing our independence, and who have perse
vered in measures to secure the blessings ofa'
free government, have for that very caufa
been persecuted & oppressed—while the en
emies of our Constitution, and to all repub
lican governments, those who at the period
of the American revolution would have as
sisted Great Britain to enslave you—those
very men possessing now the fame spirit, and
the fame disposition to arbitrary power—-'
have by some unaccountable fatality, been
loaded with exclusive privileges, and placed
in the highest and most important offices in
the administration of that government'll)
which they had once sworn the bitterest en
mity. Surely these things ought not so to
be. It is in jour power, and in yours only/
under heaven, to arrelt the evil and to re-