Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-10-23
FROM THE PUBLIC ADVERTISER.
OF TIE JUDICIARY
AND THE CONDUCT og CHIEF JUSTICE
MApSuAIr

he article In the federal constitution
which establishes the judiciary is, in eve
ny sense it can be viewed, vague and detec-
tive, and requires amendment. | will first
quote the article and then shew its defects.
The article says,
6 The judicial power OF the u. States
" shall be vested in one supreme court and
" IN such in'e Tor courts as congress may,
" from time To time, orddin and establish.
The Judges both OF the supreme ana in
" terror courts shall hold their Offices d.
/" ring good 6chuVior"
This Is all the constitution says on the
subject.
Now it naturally and necessarily follows
that If the Judges are Ia hole their Offices
during good behavior, there must be a pow
er somewhere, to Judge of that good beha-
vior or the breach Of II, Gut OF tbs the
constitution is silent, and here n lies its de-
feet.
The establishment Of the judiciary in Sc
veral OF the state Constitutions is much
bttter arranged than it is in the federal
constitution. La the Pennsylvania CONSTITUTE
on it is expressed as follows.
The Judges OF ;Ac supreme court, and
" OF the several courts OF common please
" shall hold their Offices dur my good be-
Z" hayior. But for any reasonable cause,
" which shall not be sufficient ground for
- lmpe3cAmcnt, the governor may remove
any OF them on the address O. TWO thirds
OF each branch OF The legislatures"
Some ether oC the state constitutions,
Ike these of Ncw-Eampshire and AlasSa-
chusetts, make them removable on the
address ot majority o. the legislature,
by which I suplcsc, is meant the int vote
20 both houses. Eut in either case, as all
decided by majorities, no suiiicien reason
can be sven why judges should BE higher
privileged than other cjti zcnS. 4 president
tic States is renewable by majority
OF the electors and Judge ought to De the
same 10y a majority OF the repr cscEtatives.
Sut The case was, that in the federal conven-
ton and III some Ofthe s,auc conventions, the
judiciary departing nc wa formed by law
yeFS, aud as they might expect To be Judges
themselves, they contr.vet 80 make the re-
moving of them difficult, but that difficult
cy c"e not destroy the right; it naturally
RESIDES IN the sovereignty Il the whole U2o-
PIE ana from them it devolvcs on their re-
representatives.. It would however nave
been better had the Constitution e,l.rcsscd
the manner Of doing il, and DISTINGUISHED
between reasonable Cause for removing a
Judge and conduct SO very bad rs 10 &c
conc Improbable. II is 44li,.5.e to say
that the same detect OF character aud con-
duct winch, if known, would .rndC.. a man
uGtt to be appointed Judge, ought, if COM
mitted afterwards, to djsquaiity h:m from
holding tie appointment
The conduct If Judge Marshall on the
trial OF A,.ron Burr is involved in intrica-
cy and mystery. He has assumed too
much, and acts as il he was one OF Burr's
council
On the trial at London between Horne
Tooke ana Charles Iox tor an undue cleo
tjon for the city Of Westminster, the iudge,
Kenyon, frequently Interrupted Horne
/ coke il the Information he was giving
the jury respecting that election. AT
length Horne Tooke said, /; is proper nv
iold, TO settle :his matter before we pro-
coed farther. There are two parties i'm
this suit, IN, self as plaintiff, and MIR. Fox
tine defendant and the jury when they
have heard the Whole case arc to be iudg-
es The duty Of your i2rdshih and tie
c1Icr ot tie court as 10 keep order After
tins wei timed rcproof Kenyon permitted
the trial to go on.
Judge MGrshau's opinion on the motion
OF BuTr's {. INCL to arrest ;he evidence
gainst him Is full OF bubbles 6 OUGHT, saws
he, the court (meamng that It ought not)
to see and near testimony, which cannot
affect the prisoner, or ought the court TO ar.
rest that testimony" 70 which answer.
That until the testimony be heard it can
not be known whether it will, or will not
affect the prisoner either to discharge Or
acquit him, and therefore the court has not
the right or the power to prevent its being
heard.
The testimony is for the jury, and it is
the duty of the cour to keen ord-r whilst
the witnesses are giving their testimony.
But MIR. Marshall assumes 10 iulge of tcs-
timony before he hears il, he inVade5 the
province Of the jury, and he lays down q
string OF bubbles before hand to make
himself ground to stand upon. To pre-.
vent testimony coming before Jury is a
suppression oil testimony, and is the next
offence to subornation Of testimony. The
latter 5 impeachablc, the former is rea-
sonabe cause for removal.
Bdrr's counsel set out at the commence
ment Of the trial, with strong declarations
of Innocence, but in no instance, have they
attempted TO prove that innocence. A II
their luibbling has been eontrived tor reveut
evidence proving him guilty, that he
might escape negatively. They have labor
ed TO waste time by continually interrup-
ting the progress Of trial and to weary out
the patience O. the witnesses on the part of
the prosecution that they might so away
without giving their Evidence and the
court has so far COuntenanced the view,
% Barr and mis- counsel that it was not tin
after Mr.. HAY declared lie vOuId .d;oi,,.,,