Newspapers / The Raleigh Minerva (Raleigh, … / Sept. 21, 1802, edition 1 / Page 1
Part of The Raleigh Minerva (Raleigh, N.C.) / About this page
This page has errors
The date, title, or page description is wrong
This page has harmful content
This page contains sensitive or offensive material
..pi Kmmmjrpi .' " I j tii THE NORTH- MINERVA. NStSSgQESEa jjZG -Published every T UES D A T sfff O D G E Js BO YL Aft. G AROLIN A V tvennefive Shillings per Yta-' Jodoe Bassett's Protest ( Concluded.)' y n,.!? imeeA- bva conftitu- tinoiul aa, may, if the occafion de mands it, correct an error even nerer But until then, every department, every officer, every citizen ot the ti nned States, is bound to yield to the fentence of' the judicial department, judicially declaring Vhat is the law. If we look only into the conftitu--tion for one moment, and lee the various checks and limitations upon legiflative power, and in lavor ot the Hates and citizens, all declared to be th&ruprg.4aw.of...$be--lan4..and confider, fr a moment, the nature of the judicial power, to which is ex pi efsly delegated the right of decid ing ail queftions arifing under the conftfturion and laws of the United Slates :'and that without this power id 1 he judiciary to exiend to the iTtatandiuzeus, me couiuruiion . as a lupreiuc uiw, they can only be obtained through force and b'oed ; no rational doubt can be entertained, that it is the right and indeed the higheft duty ot the judge'', if convinced that a law of congrels is oppofed to the laws of iherp(.op!e, ns enacied iff the confti tution, to pronounce it, for that rta lon a nullity and void. ThefeSre i'ny views of the judicial 1 . i 1 1 i power. 1 never entertained tne icau Icrirpfe upon this p.oint ; c&nfidering 'it as cleat as the conftitution itfelf. Judicial determinations, too, of the hlghdl authority, have placed this 'cue-it iori. or' ought to have placed it, slI Vett. - On the rtenfion law, the m.Vesof ihe faprem'e court agreed . ' r . ' II ' :. - I J that it was ur.c uiititunonah aiug con, grefkcqtiTCfrirrj? ifr ilitrdetermirra--Dr., repealed lo ruuch as was byjthera held void. , . On the catriate tax, the queftion wasTrought, by a citizeirot Virgi nia, before the fuprtme court, on the very ioint, that the law was un ctrtiftiuttipnal. .The judges deter-i'jm'al;ii-was not contrary to the conilrtmiun but their power and rightlto determine otherwife was rjevcr queftioned ; and they affumed the law, not cn the ground that they were obliged to execute a law cf conyrefs, but on the principal of , .s conformity and being purluant to ii e conllitution. ihele are trie general grounds and rem fnings upon which my judgment jj"fc 'inded, that the ads .of congrels of t,,e th of Match, and. 20th ot A pril ii,02 'do not aboliih the ' office 1 ot the i! under the law of the 13th ot -uruary 1 001. 1 noia thofe ads, far they are defigned to abolifli tAe oiLces of thofe judges, void, ..becAiifc dhediy, contrary to the conftiruii On of the United States., which eitabli.n'.vtd them in the judges when once created and vetted, dur Sntr their eood behaviour.- ' Jl ieeLmylelf cvlled upon, in this "plate, to" notice7 an opinion, which tome entertain, who hold, that con gr ets, br no ad, an djnivc a judge, of his jot;ci.d capacityj and the ia'ry r.nhexed t" his original office ; rut that congress way abpliflv theparti, tular court, jt which he is the judge, and transfer . the judicial powers, which are exervi'ed in that.court, tp any other exiitiyj; courts and judges ; ot the United feta'ssi'-or may create j t ther. courts "of th3 fame or different j r.-ne and temtoriav limits, and vcfl ' V e tame puwers in tool e courts, 10 ' lb compofed of,newly created judg- "es, or judges already appointed, he- .longing' to any other court of the U. States. . ;" ' ; j lhat jcongrefs can,' by no lawful;! hn vns, deprive a judge of his judicu ai capacity, or commimon, and it bv theirad, andnotby his own negled: 'iiothirg Ihort ofthefullright'ofTOnvtcTS to new co'uils leaving the firft refulal," or miibehavior, he is left tinuing in. ahd exerdifing, thejuWi- without a: y oifcial rights, or provi without any Judicial ler vices to per- cial powers attached to the court fioa tbi .their lalanes, is unconflitu- . torm, ineyare oouna to. pay timi tbe , V-. :"';; ';'",-: 1 T U & S D A Y, ftipulated compenfation, unlets he voluasrily relinquifhes it, can not well be doubted by any who take theconllitution as a law, or moral obligation for a principle of human adion. And fo tar 1 agree in the foregoing opinion, that the cornmitfi on to hold iuch a court4-emalni, and the falary annexed to it. - But the conltirution ot the United States, by that claufe which iecures to judges their office during good behaviour, was lurely defigned to anfwer much higher purpofesthan merely to enti tle him to he name and technical qualities and capacities of a judge, arid to ibev6mpVhiati6nr!lIaCcd between hirnahd the public. " It was plainly and principally de figned to fecure to him the lubltanti tial exercile of the judicial rowers and rights annexed to-the office, at its creation: but beyond that, the great and important t-nd of the pn vifion was to render tbe judge in 'cp-i dent ot legifltitive & executive-power, for the benefit ot the people ami me fates, in the adminillratioii of the laws. Once abandon this ground, and allow that congref may thip the judges of the courts, of the -United .Stares of all their judicial powers, by aboiifhing the courts w hich thtyare cbmmiili ned to fur" and by givii'g the whole "of tfeir jurifdidion to b ther cruits and judges, provided o..ly the capaciry cf judge and tbe laiary in virtue of (bat, and the con trad is continued) I lay. once eft ab 1 1 ill this. -and the molt"imprtait mod obvious intent ot the cohititu tion is defeated,. . 1 he judicial y is ccmpletely, anLi if the fortgi ing pinion- be' tt ue, coh Jtitutionady dependent oh the will ot the legiflative department. 'If a judge or any let of judges, become obnoxious, beeaufe they will not bend to the dominant partv, or ex ecute ads however oppofed to the' confutation, and they may be re moved from the exercife of their of fices, and their powers be lawfully transferred. to others, it is in vain to talk of an independent judiciary. Succeifive legiflatures will find of nu'te judges to anfwer their views ; and thofc; who are dilmifTed (as in the cafe thar.baa happes;d) may hot only be l It without any judicial pow ets of oiJicejfl'Ui even without fub filtenceitfclf ! " .'""" It is faid, in the conllitution" that courts fliajl.be cilablifTied, and that the judges kolh b. the lupreme and intttior courts mould hold r heir of fices during goodjehavior."' What- is meant, V li'at can be meant by ttis, but that; when courts are eilablithed, . aqd ji'.dis are ap pointed lot thole courts, thofe judges hall have a rtyV and are veiled with an -111 , . CJ Jill It. IJMl 1. lillllll durim. tnew-good behaviour, foJjiolJ courts and i) exercife in them fomejudicial ilan it he ferioufiy contended, that tfif judges, under the ad 01 13'th'ct. February, : 801, do ' hold the x)ffic: s thereby created and exprefsly grant ed to them-.'n their commillions, withia'the meaning ot thole words in the conftitution ? when-at the fame time, it is maintained, that all - their courts are rightly abolahed, and all the judicial powers annexed to thole. courts, in their c'reatiojiand every adion and proceeding in thole courts, nghtmlly translerrcu to o- ther courts of the fame name and narure, and compofed of judges who are to execute thoTe identical poyv- trs ". : '. ""'Holding fh.eir ollices' according to the m. nifeft intent of the conlli- Tution, m my appreuennon, means they ccm pole. j . ' . . , " . - SfcPTEMJf:. 21, i-;2. If we execute thofe hold the office; Jf others execute them, they hold the oftiee t he on ly queftion is to whom, of conllitu- tional right, does it belong to exe--j cute them f Thofe who maintain the ereat and lalutary principle of an independent judicial y, reUdting from the confti tutional tenure" ff office during good behaviour, aaU "who are not prepar ed to rcfign it j for an empty name, mult, I apprehend, be brought to this, as the only found and iatisfa'c- tory conclufion ' That the judges of a court onceijprdained and elta HitliEtt ty pngiisrhate-m virtue ot their office, a l as elfentially con flituring the cfl j.itfc!f. a.vttted ti tle, tinder the titdtituyon, to hold the court arrd carafe the judicial PQvvefs attached it. v ldecin it fup rduou3 to confiden what congrefs il.iv or mav not do lawfully in uiodji'icaiioriS fliid at&cnd- rr.ents, by alterif i the felfions, vary ing territorial liinits ot jurifdidion, changing the ityle of courts and judges, adding fio and diminithing the (lock o1 judi j? powers and du ties in the lamer )utt U it is faid, th t thould it be con- itru?o, mat tne unce vt a judge confilts in an exclufive right to ex ercile ' all the judicial powers' at tached to jr, in 5tj( creation and no othe;s, this might produce inconve nience; 1 anfwer, that if this is the found jtonftfueliyn, or the one at tended with the teaftbad confeqben cts, inafmuch as it complies with the words ot thecoififtitutioni'and main rtainslhe independence ot the judcts 1 - 1- Ai . I . . tits lavonre, ciytcc i.vii ougnt tpjJie- ..vaiV4ea'inge...incMvenienc.e.if. theyrxid, to conlhtutioral and not to let 'flati ve amendment. In pradice it has not been found rieceflary to make any cflential chan ges or alterations ot jurildiciion in ciul or criminal cafes in the courts of jultice hithti.to eltablifhed. " But it heed not be contended, that the legillature are prevented under the conltrudion which I give to the conftitution in this particular, in m yiitling .to'ditiiin.iihing, or altcrirg the judicial t6wers,"'and duties of the tftablifhed coins. I he officers 4 the judges will not be elcftrcjt d ; th.ywill till 4 hold their cfiiccs, provided they hold courts am! exer cile judicial powers, If itl eiaid, that this being admitted," cciigtcis ( may, it l"o dilpofed; "as elf dually re- ! duce the offices of the Judges' and heir independence, by circumlctib ing their limits' of territory-iand lub je'dsot jurifdidion, to a mere lounel ; . or by impofing impradicablc duties, drive them from office ; I anfwer, that fuch open abuies are not to be prefumed, and when they happen, the ad ot producing them would be void. It would be a fraud on the office of the judge : and on the con llitution, and would be held up fo by" alljudges bound to fupportbe pn Ititution of the fupreme law. . ; 'the line Avhich divides rightful -authori'y from abufe of it, fo as hi become unconltit utional, cannot and need not be defined or eonjedued. When theoccafion furnilhes ground tor the queftion, the judges wiil ex ercile a judicial difcretion uponir. 'i here can be no other or faler cii terion.' But, to-whatever length- or ex tn me of abuie an .ad' ot congiefs might lawfully go in this particular, flill, however, leaving to the judges, courts anel the exercife f judicial powers, what. I contend-for is, that a' law which abolifhes the courts and all the judicial powers of one let ot judues lawfully appointed, and trans- tiona auu vuiu. ouui w ws -v.--: r-J- v-vi; Vol. V 11. Nti,vB. -37. powertyrwejcirtry on the face of them indubita ble ligns and evidence of a defign in the legillature to take away from the ' firft judges their offices, and are therefore manifeltly tonfary to the letter and i pi) it of the conftitution. Such an ad made and opeuuiig again!! thcwords, the, true intent, and obvious policy ot the conftitu tion, is not to prevail. The judges, to whom ihe fame office, in tried, is transferred will not except the ietn'fintive commiffion -nor, by exec'iiitajr the ad. oartidDate T in theoverCut w of the conftitution. 'J aking that as the fupreme law off the people they are bound to rejed, as void every meafure which it car ried into effed by them would dired-. ly oidiedly defeat any uf it& pro vifions. 'i'f ' The abimtlon of the courts and the exercile ot all ibejudicial poweTS or the judgesr ai.d the deprivation ot ihdi ialai uiliifliw acaferwh'tcb: feems to involve no queftion of 44 de gree to which the legiflative body mayiigr'tfully invade -the offices of the judges. It attempts to abolifh boih olliee and judeentire 1 he true queilion is whether fuch an ad, wtJii;ucb jmeriJLandpjeraj:ionLji not liiiconihiutional r '1 he judges, who are called in to execute fuch an ad in any way, are bound to confider, wheiher it. was confiiiutional. . Jf they are of opini on it was no4rthen they "are to re fute any cp-cpefationvubivh would effeduateor tend to Itlcduate, the conlt queiices and dtftgns pV( poled l y the prohibited ad of the iegifla ture. ' I he repealing ad of the 3d of M arc hj S oajti jx felfj dt fnkgj o id-olilh the ecu its and jutigcs creat ed by that ot February. t8or, w;.s prohibited by tbe conftitution ; it uas void, and the judgcs ttill retain their rights of office. The judges defo liated to execute the repealing ad of ihe 8;h of March iSoZy and the amending ad of 29 h o April, iS-2, or, in other :eriiis, the ju.gcs cal ed upon ro affilt and laivdion of ul'uipation and iMcgality, it iuch us' the opinion tbry entertain ot thnle ads, mull netel'larily rd -ule to j'aiticjjMe r aid in their dctign . and coTiltqucnTes v, It has been (aid, that the ad of February uSoi, inalmuch as it abo l.fhed the circuit courts under the act of the 24th of ,'eutember. 1 7So. jiiftifio ti:e opinion, that Colpitis mayabr.lith courts and transfer all the jaeiicial powers and juiill idioa ot hole cf'Uris, to newly eiecl-d cruits ofTlTe'fame nan.e and raiu e, to be'couipcfed of newly ap'poi:.ui jutmes. A. fhert and decitive anfwer pre- fonts 1 1. U .. The cafes are cfmm- lar. - :- - .. No judges wertr' ever appointed and coraniiuior.ed to exerciie thejt- .dirial powers r.nd duties attacheu to , the niit circuit courts. '1 hefe w'erC'perfjLrn ed by th judg-. es of the tupi ttn.e an.1 diiti id courrs, who "were diicctedlo ho'd iheii'.ly law-, having no execmive cummJu ons as judges ci thole.courri. Congrcis, in aboiifhing' lbofc" " cots ahblitht'd no ju Jge. or ofiice s. No judicial tenure e t office was the' leaft( allected. 1 he juoges of the lupretue anj dillrict courts flill eoi -tiiiued in pCfivii-op. of their pi ojier re!pciie couit.') and lalanes. J hey inticly ,flociateel in the', ircuit cauri-under a kind of legiflative e otnrjullion, which attached 'hcte' duties to their proper and diftind judicial offices. Congrels n iglitv.: courlc, lawfully daqharge them from thoff duties, ieavihg them in fyll pofteflion ot their original and ap .. . proprjate jurifdidions. bhould .all the judges of a . court dicorfefip , congrefs, by aboliihiri'g ;uch couV. 9 r U 1
The Raleigh Minerva (Raleigh, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
Sept. 21, 1802, edition 1
1
Click "Submit" to request a review of this page. NCDHC staff will check .
0 / 75