The Newhampshire gazetteer — Exeter, N.H., 1789-10-17 00:00:00, page 1

Saturday, OCTOBER 17, 1789,]
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MR. Benson observed, that if thel
clause is (truck out of the bill,
twill involve an abandonment of judi
cial proceedings ori the part of the U
nited States altogether,except in cases
of appeals.—The difficulties which
may arise iri this case, are not justly
chargeable tb the bill itfelf, they are
owing entirely to the confutation—
for that is express, that the general
government ihall exercise all judicial
powers: Thia Legislature therefore,
have it not at their option to eftablilh
judicial courts, or not: The wofrds
of the system, are plain and full ; and
the inftitdtion of the courts, arise out
of the very nature of the government;
How far the operation of this power
may extend, it is not for us to deter
mine: Whether it will interfere with
the State judicatories is a matter that
touft be the result of experiment-
Some gentlemen suppose it will, and
it may be that it will involve the af
fump^bh of the whole judicial power;
but Hill the clause does nothing Ihore
than take up the letter and fpirN of
the constitution:,
Mr. Sedgwick obferVed; that the
gentleman will find as great diftcul
ties to arise upon his plan, a6 on that
proposed in the bill—and this obvious
. we are so circurriftrinchd that two
diftiift independent powers of judicial
proceedings do exist ; and I do not fee
how we ihall get rid of the difficulty; if
it is one,until there ihall be a change
in the constitution. I did not suppose
that at this day, it was a qbeftion
whether this government is to exercise
all the powers of ^government, or
no? I did conceive that such an idea
had no existence in any gentleman's
inind—but Sir, what does the ptefent
motion import? Its confequen^s gb
to diverting government of a power
without which its authority is but a
shadow. It is necessary to the com
pletion of any system of government;
that it should possess every ptiwer de
ceffary to carry its laws and ordinances
into execution. But by the gentle
man's idea, it is to be left to the de
termination of an authority, which
a&s independently of this legislature,
whether the laws of the union (ball be
executed or no.™— —-Mr. Sedgwick
Jen touched upon the difficulties that
would arise from giving the state courts
cognizance of federal quertioter He
^fo adverted to th? cbndrift of the
legislatures, (the creatorsof state courts
and judges) in refpe& to infradtons
and violations of centrads, &c. by
which the United States had been
humbled from the pinacle of glory tti
the lowest state of degradation. Un
der the impression of these confidera
tiont; said he, can it be foppofed that
this government can exist with any
degree of reputation and dignity,with
out the power of establishing its own
tribunals, iriftitutirig its oten judicial
proceedings? It appears necessary
that they mould possess this power as
that they ffiould be United in o^er
to their existence as a nation.
Mr. Ames. The remarks which
gentlemen have made on the impor
ante of this queAion will be es forae
LEGISLATURE of the UNION.
(Continued,)
HOUSE of REPRESENTATIVES,
NEWHAMPSHIRE GAZE TTE E R.
Congressional Matters.
SATURDAY, AUGUST !,.
PROCEEDINGS OF THE
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use in deciding if. The judicial
power is in fad highly important to
the government, and to the people:
To the government because this means
its laws are peaceably carried into ex
ecution. We know by experience
what a wretched system that,is which
is diverted of this power. We fee
the difference between a treaty which
independent nations make, and which
cannot be enforced without war, and
a law which is the will of the focir # .
A refiadory individual is made to feel
the weight of the ^hole community.
A government which may make, but
hot -enforce laws, cannot last long,
hor do much good. By this power
too, the people are gainers. The
adminirtration of justice is thb very
performance of the social bargain on
the part of government. It is the re
ward of their toils —the equivalent for
what they surrender. They have to
plant, to water, to manure the tree,
and this is the fruit of it. The ar-
gument therefore, a priori, is Brohg
against the motion, for while it wea
kens the government it defrauds the
people. We live in a time of inno
vation ; but until miracles shall be
come more common than ordinary
events, and furprize us less than the
usual course of nature, I shall think
it a wonderful felicity of invention
to propofc the expedient ofhiring out
our judicial power, and employing
courts not amenable to our laws, in-
Bead of instituting them ourselves as
the confutation requires. We might
as properly negociate and assign over
our legifldtive as our judicial power ;
and it is not more strange tb get the
laws made jor this body than after
their passage to get them interpreted
and executed by those, whom we do
not appoint, and cannot controul.
The held of debate is telde. The
time for tonfideration has been so am-
ple, and that remaining for debate is
so (bort; that t will not enter fully
into hi The gentleman from S. C.
(Mr, Smith) has very ably proved
the inexpediency of the motion. I
will confine myfelf to another point,
and isl can establish it, it will narrow
the difchffion;
The branches of the judicial power
of the United States, are the admiral
ty jurifdiaion, the criminal jurisdic
tion; cognizance of certain common
law causes, arid of such as may be
given by the statutes of Congress.
The conftitutibn, and the laws made
ih pursuance of it, are the supreme
law of the land. They prescribe a
rule of aftion for individuals. If it
is disputed whether an a& done is
right or wrong, reference must be
had te this rule ; and whether the ac
tion is compared with the rule of ac
tion in a state or federal court, it is
equally out of the power of the judg.
es to fay that right is wrong, and 4
tfrong right': If a man is restrained
of his liberty and sues in a state court
the defendant shews, that he was a
marshal and served a precept accor
ding to a law of the United States,
he must be cleared ; otherwise the
law of the United States would not
be the supreme law of the land. But
there is a substantial difference be
tween the jurifdiaion of the court,
and the rules of decision.
In the latter case the court has on
ly to enquire into the fa&s and the
frules of a&ion prescribed to individ
uals: In the former, they do not in
quire how, but what they may try."
The jurifdiaion of the court is the
depofitum of a trust. The supreme
power in a state is the fountain of
justice. Such Breams are derived
T H1
from this fountain to the courts, as the
hgiilature may positively ena&, The
judges, as servants of the publick,
can do that only for which they are
employed. The constitution has pro
vided how this trust Ihall be desig
nated. The judges must be named
by their chrifhan and fir names, com
missioned during good behaviour,and
have salaries. Causes of exclusive
federal cognizance cannot be tried
otherwise, nor can the judicial power
of the United States be otherwise ex
ercised; The state courts are net
foppoled to be deprived, by the con-
Bitution,of the jurifdiaion which they
exercised before over many causes
which may be tried now in the nati
onal courts. The suitors will have
the choice of courts; But who shall
try a crime against a law of the United
States, or a new created action ? Here
a'jurifdidion is made de novo. A
trust is to be exercised, and this can
be done only by persons appointed as
judges, in the manner before menti
oned; The will of the society is ex
pressed and is disobeyed, and who shall
interpret & enforce that will,but the
persons inverted with authority from
the fame society ? The State judges are
to judge according to the law of the
state, and the common law. The law
of the United States is a rule to them,
but not an authority for them. It
controls their decisions, but cannot
enlarge their powers. Suppose an
action brought c^ a statute declaring
a forfeiture equal to the whole of the
goods, against him who shall unlade
without a peimit : Before the law was
made, no court had jurifdiaion. Can
a state court fiftain such an adion ?
They may as properly assume admi
ralty jurifdiaion, or sustain action
for the forfeitures of the British reve
nue afts# 1 mean no difrefped to the
state ; courts. In some of the flares I
know the judges are highly worthy of
trust ;. they are fafeguards to govern
ment,'and ornaments of human na
ture; But whence would they get
the power of trying the supposed ac
tion ? The Bates under whom they
aft, and to whom alone they are a
menable, never had any such power
to give, arid this government never
gave them any, We may command
individuals: But what right have we
to enquire the Servants of the states to
serve us; Nay, Sir, it i# not only
true that they cannot decide this
cause, ifwe negle& to make provisi
on by creating proper tribunals for
the decision, but they will not be au
thorized to do it,even jf we pass an aft
declaring that they shall be inverted
with power; For they must be indi
vidually commissioned and falaricd to
have it conftitutionally,and then they
will not have it as the ftate'judges. If
we may empower one state court, fup
,<fe the fapreme court, we may em
power all, or any; even the jnrtices
of the peace. This will appear more
monftrohs; if we confider the trial of
crimes. A.Batutc creates ah offence,
Shall any justice of the peace be di
refled to summon a jury to try for
treason or piracy? It is true the go
vernment will not dire& a thing so
Wickedly absurd to be done. But
who will believe government may
lawfully do it? It would be tedious
to pursue this fubjeft, or even the
ideas co^neded with it very far.
The nature of the fubje& renders it
difficult to be even perfpicqous with
out being prolix. My Wish is to es
tablish this conclusion, that offences
against statutes of the United States,
and aflion, the cognizance wherebf
is created /< foa, 4te exclufivtly of
Upon motion, the report of the
committee of elections, ori the electi
on of members for the state of New.
jerfey,was taken up for a second lead.
in g''
This brought on a variety of obser
vations and propositions ; but no de
terminate principle of difeuffing the
fubjed being readily agreed to, and
several motions being made and with
drawn.
In committee of the whole, upon
the bill for establishing judicial courts
=Mr. Boudinot in the chair —the
third fedion under consideration.
The debate was very long this day ;
and after 3 o'clock the motion for
striking out the clause was negatived
by a large majority.
A message from the Senate with a
bill providing for the punifthnent of
certain crimes Also the bill for al
lowing compensations to the members
of the house and Senate, and their
refpedive officers ; in which the Se.
hate has concurred with amendments.
A° memorial from Hugh Willi
amson, :n behalf of the trading in.
tereß of North- Carolina, represent
ing the hardihips that Bate fuffers, by
reason of the alien ton^ge duty bein^
levied upon their veffeis in the Bates
under the new government,
This memcrial with that from the
Commanders of the packets from
Rhodcißand anti Providence, were re
ferred to a committee of the whole
house;
The engrossed bill to fufperf^ the
operation of a clause in the lon&aion.
law was read a third time.
The committee appointed fcr the
purpose, reported that they had ex
amined the enrolled bill for register
ing vessels; and to regulate the coal
ing trade- —and found the fame corre&.
The speaker then affixed his fignatura
to the fame.
Mr. Bland informed the house
that the towns ofPeterßiurg and Rich
mond laboured under the fame diffi
culties, and had similar grievances to
complain of, with the inhabitants of
Georgetownand Alexandria—he mo.
ved therefore that this bill should be
recommitted for the putpofe of ad;
ding a clause to relieve those places.
It was accordingly voted that the bill
be re-committed to a committee of
the whole.
Mr. Vining propofed,in fubftanca
the following resolution: viz. re
folvcd, That the fads reported by
the committee of ele&rons, and the
documents therein referred to, re
fpe&ing the election of the members
for the Bate of Newjerfey, are not
fufficient to fuflort the prayer of the
petition for feeling aside said elec
tion.
federal jurifdiaion ; that do persons
c<n aa as judges to try them, except
such as may be commissioned agree
ably ,o the confutation. That for
the trial of such cfftaces and causes
tribunals must be created. These
with the admiralty jurifdiaion,which
itis agreed must be provided for, con
(titute the principal powers of the
diftria courts. If wemuft payjudgeg
we may as well employ them. The
remnants of jurifdiaion which may
bv taken away, are scarcely worth
transferring to the state courts; and
may as well be exercised by our
own.
Several members spoke upon the
proportion ; but an adjournment be
ing called for prevented a decifion#
MONDAY, AUGUST fl;
Thursday, sett. 1.
[Vol. I.— Numb, it