Newspapers / The Raleigh Minerva (Raleigh, … / April 26, 1802, edition 1 / Page 4
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The 7th fed. of the law provide! that the court of the 6th circuit (hall be com pofed of a circuit judge " and the judge of the diflrla court of Kentucky and Tennef. fee." It is afterwards declared in the fame fe'dion, that there (hall be appointed iu the 6th circuitt a judge of the U. States, to be called a circuit judge, who, together with thidifiria judge of ftnntjfct and Ken tucly, (hall hold the circuit courts hereby dirtded to be hotden within the fame cir cuit." And finally in the Jame fedion it is provided. thai whenever ifytffice oj d'tj trla jvlge in the diflria of Kentucky and Ten nejee tejpe&ively flail becomt vacant, fuch va caucies thall rclpedively be fupplied by the appointment of two additional circuit judg es ia the faid circuit, who, together with the circuit judge firft aforcfatd, ' (hall com 'pefe the circuit court of the faid circuit." .When 'the exprefs language of the law af firms the txilteuce of the office and of the officer by providing for the contingency of the 'officer ceafing to fill the office, with what face can gentlemen contend that the office is abolithed i They who are not fatis ried upon this point,-1 difpair of convincing upon any other. Upon the main queftion, whether the judgcf hold their office at the will of the iegiflaiore, an, argument of, great weight and according to my bumble judgment, of irrefutable force, ft all remains. . ..;,.; The leg illative power of the government' il not abfolute but limited. If it be doubt ful whether the Iegiflature can do what the conftitution 'does not explicitly authorife ; yet there can be no quettion, that they canuot do what the conftitution exprefsly conftitution, the judges ate a check upon the Iegiflature. This dodrine I koow is Am'ieA. and it is therefore incumbent UDon me to (how that it is founded. It witooce thought by gentlemen, who now deny the principle, that the fafety of the citiaens ind of the dates, retted upon the power of the judges to declare an un conttitutional law void. How vain is a paper teftri&ion, if it confers neither pow er nor right. Of what importance is it to fay, Congrefs arc prohibited from doing certain acts, it no legitimate authority ex ids in the country to decide whether an. act done is a prohibited ad ? Do gentle men perceive the coniequences , wtiicn would follow from eflabliihing the princi ple, that Congrefs have the tvclufive right to decide upon their own powers ? This nrinrinli! admitted ?oea,anv conftijution remain ? Does not the power of the Iegifla ture become omnipotent.? Can you talk to them of mnfgrcffing their powers, when ..uu unc MOO ngui .vjwvg. V mviv jjw " v i - but themfelves ? 1 bey do what is not au thorifed I they do what is inhibited ;' nay, at every ftep they trample the conftitution under foot t yet their ads are lawful and How ill, fir, do the doctrines and profef fions of thefe gentlemen agree. Tbey tell us they are friendly to the exiftence of the dates i that they are the friends of federa tive, but the enemies of a confolidated ge neral governmint i and yet, fir, to accom pli (h a paltry objed, they are willing to fettle a principle which, beyond all doubt, would eventually plant a confolidated go. vernmcnt, with unlimited powers, upon the luins of the ftate governments! Nothing can be more" abfurd than to conlend, that there is a pradical xeftraint upon a political body' who are anfwerable to none but themfelves for the violation of the reftraint, and who can derive from the trv A nf !nlatinn, iirMniihV illfl Ifioiti on of their conduct. If, Mr. Chairman, you mean to have a conftitution, you muft difcovera power to - which the acknowledged right is attached Ot pronouncing tne invalidity ot the acts ot the Iegiflature which contravene the inftru- .- ment-AiVitlC .. ft. ...---..-: i-.v.-., : the Iegiflature of a ftate a right to declare n mfl n( Cnnatrh vnii) f TKia would he erring upon the oppofite extreme. It "'would be placing , the general government af the feet o the date governments. It would be allowing one member of the union to. control all the reft. It would inevitably lead to civil diflention and a diflolution of the general government v-"Will it be pre tended that the date courts have the cxclu- five right of deciding upon the validity of. - Our laws? . I admit tVy have the right td declare an acV-of-Coogrtfs voidr Butthis - rightthtjrJ enjoy in practice, ano . i ever cnennaiiy mud exift, fubjed to the revilion and con trol of the courts of the United States. If the Bate courts definitively poffdTejI the light of declaring the invalidity of the liws of this government, "it would bring "us in fubjedion to the ftates. The judges of thofe courts, being bound by the laws of ' the date,- if a date declared an ad of Coo grefs unconftitntional, the law of the ftate would oblige its courts to determine the law invalid. This principle would alfo de ftroy the uniformity of the obligation upon all the dates, jwhich (hould attend every law of thi gnveroment. ." If a law were de clared void in one date, it would exempt' the citizena of that date from its operation, whilft obedience war yieldedjo it in other dates. I go' farther , and fay, if the ftates or date courts had final power of annnll ing the acts of thjs government, its mifer. able and. precarious exitleoce would not be worth the trouble of a moment to preferve. It would endure but a (hort time, as a fub jed of derifion, and wading into an empty Ihadow, would quickly vanifli from our fight. . 1 Let me now a(k if the power to decide upou the validity of our laws refides with the people ? Gentlemen cannot deny this right to the lovcreign people. 1 admit they pellets it. i5uc it at tne lame time it aocs not belong to the courts ot the United States, where does it lead the people ? It leads them to the gallows. Let us fuppofe that Congrefs, forgetful of the limits of their authority, pafa an unconHitutional law. Thty lay a direct tax upon ope ftate and iropofe none upon the others. The people of the date taxed, con u ft the vali dity of the law.' They forcibly refill its txecution. They ate brought by the exe cutive authoiity before the'couits upon charges of treafon. The law is unconttitu- tional, the people have cone right, but the courts are bound by the law and obliged to pronoa.ice upon them- the fentence which it inflids. Deny to the courts of the U: States the bower of judging upon thecon- ditutionality of our laws,and it is vain to- talk of its cxifting cllcwhere. 1 he infrac tors of the laws are brought before thefe courts, and it the courts are implicitly botind, the invalidity of the laws can be no defence. . There is however, Mr. Chair man, (till a ll rongcr ground of argument upon this fubject. I (hall feleft one crtwo cafes to illullrate it. Congrefs are prolvi bited from pafling a bill of attainder ; it ia alfo declared in the conftitution that " no attainder of treafon (lull woikconuptiuu of blood or forfeiture, except during the life of the' party attained." Let us fuppofe that Congrefs pafi a bill of attainder, or they cna that any one attained of treafon (hall forfeit to the ufr of the United States, all the eftate which he held in any lands or tenements. - The pajty attained is feiztd.and brought, before a federal court, and an award of ex ecution pafled againft biro. He opens the conftitution and points to this line " no bill of attainder, or expol fa8o law (hall be pa IT. d."Tbc-attornerof the United States reada the bill of attainder. The court are bound to decide, but they have only the alternative of pronouncing the lain or the conjl'tlution invalid. It is left to them, only to fay that the law vacates the conftitution, or the conftitution avoids the law. So in the other cafe ftaud, the heir after the death of his anceftor, brings "his fjrflmenMn one.ofthe courts of the United States to recover-bis inheritance. The law by which it ia cofifcattd is Ihewn. The conftitution gave no pover to pafs fuch a law. On the contrary t itexpreUIy deni ed it fo the 'government. The title of the heir is relied on the conftituiion, the title of the goyernmept on the law. The effed of tme dellroys. the efftd of the o ther't the court muft.determine which is efTVdoal. There are many other cafts, Mr. Chair man, of a fimilar nature to which I might allude There is the cafe of the privilege of Habeaa Corpus, which cannot be fuf. pended but in times of rebellion or invalion Suppofe a law prohibiting the iiTuine of the writ at the moment 6f profound peace if in fuch cafe the writ were demanded of a court, could they fay, it is true the Iegifla ture were, re Brained from pafling the law fufpending the privilege of this writ, at fuch a time. as that which now cxifts.ibtit their mighty power has broken the bonds of the conftitution,' and fettered the autho rity of the court, l am not, fir. difpofed to vaunt, but (landing on this ground I throw the gauntlet to any champion upon the other fide. I call upon them to main tain, that in a col'ifion between a law and the couftitution, the judges are bound to fupport the law, and annul the conftitution Can the gentlemen relieve themfelves from this dilemma Will they fay, though a judge has no powei to pronounce a law void, he has a power to declare theconfti. tution invalid. The dodrine for which I nm contend ing is not only ; clearly inferable fmm the - plsin language of the conftitution, but by law has been exprefsly declared and cf tablithed in practice fince the cxiftence of the government. . f r The leccnd fedion of jthe third article of the conftitution' exprefsly extends the judi cial power to all cafes arifiiig under the con. dilution, the laws, Sec The provifion in thefecond claufe of the fixth article leaves nothing to doubt, " .The conftitution and the krwt J the United Stater which fhott be mad in furfuance thereof, 1st. (hall be the fupreme (aw of the land.". The conflitn- tion is abfolutely the fupreme law." Not fa of the adi of the Iegiflature Such only are the law of the land as are made mm-i juanct of tit conflUution, , . .,' . L beg the miiuigence ottne committee one moment, while l read the tollowing provifion from the itth fedion of the judi cial ad of the year 1789 j "A final judg ment or drcree in any iuit in me nrgueii court of law or equity of a Sate in which a decifion in the fuit cou'd be had, where it drawn in queflion the validity of a treaty ot- Jaluteof, or an authority exerciftd under the United State, and the deciton u againjl their validity, tlfc. may -he ic examine! and re verfcd or affirmed in the fupreme cotiit ot the United Mates, upon a writ of error Thus, as riily as the year 1789, among the firft ads of the government, the Iegifla ture, explicitly recognised the right of a ftate court to declare a treaty, a Mature, & an authority exercifed under the United States void, fubicd to the revifion of the fupreme couit of the United States and it has exprefsly. given the final power to the fupreme court to nfTii m a judgment which isagaind the validity either of a treaty, fta- tute, or an authority of the government. I humbly trull Mr. Chairman, that I have given abundant proofs from the na ture of our government, from the language of the comlitution. and from legiflativc acknowledgements, that the judges of our courts have the power to judge and deter.. Let me now fuppofe that in our frame of government the judges are a check upon the legilliture ; that the conlfitution is de 1 pouted in theit.keeping. Will you fay af terwards their cxiftence depends on the Ie giflature ? That the body horn they are to check has the power to deftioy thira? Will you lay that the conftitution .may be taken out of their hands, by a power the moft to be diftrnfted, becauft the only pow er which could violate it with impunity ! Can any thing be more abfurd than to ad mit, that the judges are a check upon the legifluun, and yet to contend that they exiil at the ivill of the Iegiflature i A check muft necefla'iily imply a power commenfu rate to iti end. The political bi dy defigr ed to check another muft be independent of it, otherwile there can ce nrcheck. - vv ijit check can there be when the power dtfianr ed to be checked can a-nuiuilate the body which it is to rt (train ? , - 1 go (arihei, Mr. Chairman, and take a ftronuer vgiound. I lay, n the ntture of tliines, the dependence of the judges upon the Iegiflature, and their tit lit to declare Ttit "a'clToT. he 't(?gifld"ture yfiid, arncpug- nant, and cannot txiii. together. The dec trine, fir, fuppefes two rigl.tx firft, the right of the Iegiflature to deftioy the office of the judge, and the right of the judge to vacate the &. of the Iegiflature. You have arghtto abolifh by law the t ffices of the judges of the circuit courts. They have a right to declare . your law void It "una- I voidably follows, in the exycife of ll.efe rights cither that you dcllroy iheii rights, or that thry deftroy ycurs. Thisdodrii e is not an harmhfi abfniOity, it is a moft dangerous herify. It' is a dodiine which cannot be pradifed without producing dif- cord only, but bloodfhed. If you pals the bill on your table, the judges have a con It 1 ttitional right to. declare it void. 1 hope they will, have courage to exercife that right; and if, fir, I am called uport to take my fide, Handing mounted in ray confci enceand before my God, -of all motives but the fupport ef the conftitution of my coun try, 1 (hall not tiembte at the confequences The contlitution may have its tnemies, hot 1 know that it has alfo , its friends. , I btg gentlemen to paufe before they take this ralh Hep. I here are, many, very ma ny who believe, if you flrikt this blow, you rnflid a mortaf wound on the conftitution There ate many now willing to fpill their blood to defend' that conftitution- Are geutjemen . dilpofed to- rifk the confe. quences ? Sir, I mean no threats I have no expedation of appalling the (lout hearts of my adversaries ; but if gentlemen aie rcgardlefs of themfelves, let theoi confiuer their wives ard. children, their neighbors and their fiitr.ds.- Will they r(k ciil dif fention J will they bazaid the welfare, will they jeopardize the peace of their country, to fave a paltry (urn of money, ' lefs than thirty thoufand dollars. Mr. Chairman, I am confident that the friends of this meafure are not appi ifed of the'nature of its operation, nor fenfible of thj mifchievous conftqnences which are . !jjKft.O-.tgniiit. .Sirthey-Bioralsj-cf-your people, the peace of your country, the ftabOify of the. government, refts upon the maintenance of the independence of the judiciary. Mtis not of half the i mpor tancein England that - the judges (liould be independent of the crown, as it is with us, that they (hoiild be independent of the Iegiflature. , Am I afkedjvwould you ten dcr the judges (uperior to (he Iegiflature? I anfwer, bo s but co oidinate. 'Would, you render then independent of the Iegif lature i I anfwer yes independent of eve. ry power on earth, while they beliave them-.. lelves well. The effential mterefts. the ( permanent welfare of fociety, require this independence. Nott fir, on account of the judge; that is a fmall confidcraiion, but on account of thofe between whom h is to decide. You calculate on the wtako fl es of human uature, and you fuffer the judge to be dependent on no one, led he (liould be partial to thofe on whom he de peiids. Juftice does not ex id where parti ality, prevails. r. A dependent judge cannot be impartial. Independence is therefore t Hernial to the purity pf our judiciatl tri bunals. -' ?! ':'.'",..'.'.'..,'"'.' Let it be lemembered, that no powgr is fo fenfibly felt by . fociety as that of the . judiciary. The life and property of every man is liable to be 'in the ; hands'of the " j'jjges.'' It is not our great inter eft to pjaceour judges upon fuch high ground, that no fear can intimidate, no hope can feduce them? The prefent meafure hum bles them in theduft, it proftrates them at the feet of fadion, it renders them the tools of every dominant party; It. is this iffcd which I deprecate it is this confe. quence which I deeply deplore. What dots .teafdn, what does tngume'nf avail, wheo parly fpiiit prefides ? Subjcd your! bench to the iijiience- of this fpirit, and.j j 'Tee bids a final adieu to your tribunals. -We sreafked, fir, ifThe judges are to tt ii de. nendeut uf the Deoole ? The aueflion- Lre fenti a falfe and deluive -view. We re all th ncnnlr. i We are.' and jSLlanir 41 wc . 1 - 1 1 . oyour freedom, e lhall.be divided lino parties, the true que it ion is, ih-ill the judiciary be- permaneut, or fluduate with the tide of public opinion i I beg, I im. I f . . . " and value ol the principle which they are about to annihilate. If yoiir jud'cf s aie independent of politicalchanges, thry may have their prtfereoces, but they will not enter into the fpitiiof patty But let tlwir ' exiltence depend upon tne lupport o the power of a certain let ot men, and wuy cannot be impartial. Juftice will be tr.d. jen under foot. Yur courts will lofe all cblic confidence and telpect. ' The judges wijl be fupporud bythi, pRiiiiEai s, who in tneir turn win expect impunity for the wrongs and violence trey ' (cir mit. i lie tpirit of party will be 10 HutiiKi tomaonets, ana me mon e .t hoc Iji 1 tT u.lien tliift fjir ronntrv ia tn hf.-fjw lated by civil war. . :- . - - po not fy, that you render the juoge dependent jnly ou the people ycu ntke rlum dtnendeoc on vrmi PrrTulrnr Tl..." is his mtalure. The fame-tide of public opinion . which changes a Prefidini. chungethe mrjorities in the branches of ihe leg.flatuie. "i be Iegiflature will he ti e in (trun cut cf his ambition, and' he will hve the courts as the inftrumcnts tf hi vtn geance. tie uiis the l-g Ijaiuie to iemove ihe judges, that he may iippoiut C'es'ures r f his own In-tflVd, the powers r,f"the, govcrnmtiit will be concentrated in the hands of one man, who will dare to t& with more boldnefs, becaufe he will be ffheltered from refponfibility. The inde. J pendet.ee cf the judiciaiy w;s the felicity rui 1 ui loiiiuiuuou . i was mis principle '.which wasto cuib the fury'ot1party upon luoaen iiiangrs. j ne nrit moment ot pow er gained by a flruggle, are th; moft vin dictive and intemperate. Raifcd above the ftornvit was the judiciary which was to control the fury real, and to quell the fie'ee paffions of a vidorioua fadion. -v We are flanding oa the brink of that revolutionary torrent, which deluged trr blood one of the fairtft countries of Eu rope. , .'.'.- France had her national afTcmbly mote? numerous and equally popular with ouf own. She .had her tribunals of juftice and her juries. But the Iegiflature and her court! were but the infliuments of her de-ftrudion.- Ads of piofcription and fen- tenceg of baniftimcnt and death were pafl ed in the cabinet of a tyrant. Pro ft rate your judges at the feet of party, and you break down the mounds which defend yutt from this torrent.' I am done;! I fhould have thanked my God for greater powers tor" refill a meafare fo deflrudive to the peace and happinefs of the country. . My feeble efforts can avail nothing. ' But it was my duty to make them. Ihe meditated blow is mortal, and from the momennnrllnicTcV wt may bid a final adieu to the conftiiu- tion. '1 ' 0020 O VMfl wfSk V A y ,jfJ " H(tl( V4(y m: The following Books;'' - Iredell's Revisal , Hay woods Justice & Reports, arid Buchan's Family Phy sician. ' . '' , ?-- -' :: ;'.'' i For sale at this office, lollies of. the . . Plan 'of Smithftelda,
The Raleigh Minerva (Raleigh, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
April 26, 1802, edition 1
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