Jenks's Portland gazette. [volume] (Portland [Me.]) 1799-1802, 1802-04-26

mary and eliential end OF avery Office is the pub
lie good, may be conducive TO that very end BY
promoting dlligent, faithful, energetic, and
Independent execution Of the Office
But admitting, as feems 70 have been admit
ted by the fpeakers on both Gdes the quefio n,
that the Judge mua fall with the court, then the
coriequeuce will b, that Congrefs cannot abol-
iih court once eaabldhed. There is no rule
ofinterpretation better Cetlled than that differ
emf provisions in the fame intrument, on the
fame fubie6f, ought TO be 70 confirmed, as, if
pollible, TO conpcrt with each other, and give a
rsafonable effect to all
The provilion that g The judiciary power fhall
be Yelled in one hyperion court, and in fuch TO-
ferior courts as the Congrefs may from time to
time ordan and eaablhh," is Immediately fol-
lowed by this other providon, "The judges beth
Of the fupreme and inferior courts hall hold
their offices during good behaviour.
The propoG.ion, thata power to do, includes
virtually, power TO undo, as applied to leg
il1tive body, is generally but not universally
true. All vsFs9rigbf5 form ar exception to the
rule. In aria theory, there is no lawful or
moral power to diysR BY fublequent Ratute,
a right veRed in an individual by prior. And
with legal Hudies, that the repeal of a law does
not always work the revocation or diveltiture of
fuch rights.
IF it be replied, that though Legislature
might act immorally and wickedly in abrogating
veted right, yet the legal Validty of its act for
fnch Purpofe could not be dilputed; it may be
anfwered that this odieus petition, in any appli
cation of it, is liable to queffion in every limited
Contribution (that is, in every Contribution,
which, in its theory, does not iupopfs the z1bole
t0zcer of the Nation TO be lodged in the legiila.
tive body II and thar il IS certainly falte in
its application 70 lege1ature, the authorities
of which are defined by Poiitive written Con
fituuon, as 10 every thing which is contrary
TO the actual proviGons of that Contribution.
To deny this is to affirm that the delegated IS
paramount TO the eoBfaasHf power. K IS in fa6t
70 affirm: there are 10 songtatioaai limits to The Le-
gJlafiUs Autb9riy.
The enquiry then NUT be, whether the power
10 abolih Inferior Courts, if implied in that of
creating them, is not abridged by the caule
which regulates The tenure of Judicial Office.
The Grt thing which occurs in this inveai
cation, is, that the power to aboliih is at mott
an implied or incidental power, and as fuch
Wal LAiG l-dAliJ ltCiI 10 any SAPlCl5 pIO-
viion with which il may Be inconkaent.
The circumaance Of giving to CongreGs
Discretionary power to efablhh Inferior Courts
infead Of eaablilhing them fpecfcally in the
Conititution, has, with great reaion, been al
etibed 10 the impradicability of afcertaining
beforehand the number and variety Of Courts,
which the development Of our national affairs
might indicate to be proper Especially IN rela.
ton TO the progrefs Of new fettlements, and the
creation of new Rates This rendered a dilcre-
tionary power to iaaitute Courts indifpenlable,
but it did not alike render indiipenisble, pow
er II abolilh thole which were once infituted.
Tt was conceived, that with Intelligence, eau
ton and care, plan might be purified ID the
ia9ituton Of Courts, which would render aboli
items unneceiI4ry. Indeed It i, not prelumable
with regard to easblilhments Of folemni,y and
importance, making part Of the organization of
a principal department. of the Government,
that huduation Of plans was anticipated. Il
is therefore not efential to fupFo(e, that the
power to dehroy was intended 20 be Included
IN the power to create Thus the words . to
ordain and elta5lilh," may be fatisfed by attri
buting to them only the latter efea.
Confeqnsntly whea the grant Of the power
70 inltitute Courts, is Immediately fuccoeded
by the declaration that the Judges of thofe
Courts fhall bold their Offices duting good Be.
haviour If the exercile Of power TO abolih the
Courts cannot be reoonciled with the actual hold
ing or enjoyment Of the office, according 70 the
prefcri5ed tenure, It will follow that the power
40 abolilh is interdiaed. The implied or nv
pothetical power TO dearoy the office NUT
give way 70 the ezPrefs and poftive right of
holding it during good behavior. This is a.
Ereable 70 the foundea rules Of contribution !;
the contrary IS in fubverGon ofthem.
Equally 10 vain is publication of the con.
tsru6tion adopted by the advocates Of the repeal,
attempted to be derived from diRin6tion be.
tween the Supreme and Inferior Courts
The argument, that as the former is eRablilhsd
BY the Contribution, il cannot be annulIed by a
legislative act, though the latter which mutt
owe their exlfence 70 fuch an act may by the
fame authority be extihguilhsd, can afford no
greater liability TO the Office of Judge of
the Supreme Court than to that OF a Judge
Of an Inferior Court The Cona;tpt;on doee