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[VOL. ll.]
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I JO hi Y H HUTCHINSON:
I hICHALiI) H. WIL ])fc.
A‘•till, Ai.gw*t Jig. Sir
MIRROR OF THE TIMES.
CAMDEN COUNTY, (Geo.)
Superior Court, Oct. Term iBO9 ;
I
By Charlton, Judge.
On the opening of ihis court !
a difficulty was fuggeited, which
presents itlclf in the following |
question :
Whether the li Act to alter
and amend the loth fetiion of
the 3d article of the Confutati
on,” passed at Millcdgevilie on
the »6th of December, 1808, j
has changed the tenure of office
fccured to the clerks of the Su
perior and Inferior courts, who
were elected and commifjioned
during good behaviour.
The general imprelfion is* that
this amendatory aft requires a
re election of the old clerk*,
who were chosen iene ft
rint ; and therefoie, if their
commifiions are by that aft va
cated, the proceedings of the
superior courts mult he impe
ded until new commiliions are
issued, adapted to the biennial
tenure of office. 1 lay, that
this w the general imprtffion,
because elections have been held
in every county of the Rate, for
clerks of the fuperioi and inferi
or courts, as direfted by the a
mendatory aft.
I would be as an
individual, to oppole my pri
vate judgment or hypothecs a
gainlt a weight of authority, To
refpeftable as that which reft*
upoit popular opinion .* But,
compelled by official duty, to
decide, according to what I may
conceive to be sanctioned by
the constitution and the law,
I (hall endeavor to decide in
that manner, on this occasion,
uninfluenced by the sensations
my opinion may probably pro
duce upon the mind of the pub
lie.
The firfl: feftion of the a8 of
the 16th December declares*-
“ That the c!e<ks of the superior
and inferior com is ft) all be elec
ted on the lame day as pointed
out by iawj for the election of
other county officers.”
By the afct of February 16,
1799, “ other couniv officers”
areeiecled on the 3d Tuefday
l in October, in every second
year. This flatute and the a.
mendatory att, are to be con.
fidered as ttatutes in pari mate
ria—'whatever therefore is am
biguous in the one, may be ex.
plained by the per fpicuity of the
other.
The amendatory act does not j
fpecify the time for which the j
clerks of the superior and infe- !
rior courts ill ail hold their res
pective offices; but, as it dire :ts
their election to be held on the
fame day as pointed out by law
for the election of “ other coun*
ty officers,” it neceffaiily refers
us to the act ol theiGih Februa
ry, 1809, which confers a bien
nial tenure of office upon all the
14 other county officers/’ So
far, then, the amendatory act is
fufhciently dear and intelligible.
That is to fay, in future the
clerks of the superior and infe
rior courts are to he elected by
the people, on the thud Fuefday
in Oct, in every id year. But
the quellion, the important que
ll ion which now olfeis fifed for
my decihon, is, whether this a*
mendincnt of the Constitution
I
44 HOLD THE MIRROR UP TO N’ATUtt*.”— StUiktSiCare.
retrospects to the officers of the J i
clerk* of the fupeiior and infc-!
lior cc- Is, who were elected
j during good behaviour,'and va- j
j cates their cortimiflions ?
The 10th section of the 3d
1 article of the couftitution, which
1 has been amended and altered
! by the act of the 16th of Dec.
I 180 H, is in these words—“ 'l'he j
clerks of the luperior and infe- !
rior courts shall be appointed in j
such manner as the legifiature !
may by law direct, and (hail con*
{ tinue in office during good be*
haviour.”
Was it the intention of the
legifiature pafiing the amenda
tory act, that this section of the
conliitution should he rendered
totally inoperative, as it relates
to the tenure o( office thus guar
anteed to the ancient c’trks ?
I'he (olution of the quedion be
fore me, mud, I humbly con -
ceive, depend entirely upon a
v-xpotition of the inter’
lion of the legifiature. For, let
the amendatory act Uand 3!<=-'<c
and unprotected h>- law of
the loth of February 1809, and
it will then be impolfibie to ex
tract from it any principle of a
definite and conclusive nature.
It does not fpecify the time for
which the clerks shall hold their;
offices—it docs not require a
a commiflion from the executive
department. We can only then
atcertain the extent to which the
legifiature intended it should
operate, by calling in the aid of
| the ioth section of the Condi,
tution, and the acts of the 16th
February and 4th December,
1799. The 10th section of the
1 Conditution, and the act of the
1 6th February, render a com.
1 million neccfiary ; and though
the amendatory act is blent on
this luV.jcct, yet the legifiature
did 1:01 certainly intend to in -
J
terfcrc vilh ibis prorogative of
the governor. Fidm whatever
points We put(ue the inveliiga
tion, intention becomes the
ruling principle of conllruction.
Retting the interpretation there
fore, of the amendatory act up
on the ground of intention, from
what data are we to presume
that it was the intention of the
two iucceeding legiflaturc* to
vacate the commissions of the
ancient clerks ? If the re-elec
tion of the oid clerks is required
by the amendatoiy act, then the
difficulty which now occurs will
occur every second year at this
period, and one half of the peo
ple of this diltrict will be depii
| ved of the regular admitiiftia
tion of jultice ; as it will proba.
i bly be found impracticable to
forward commissions in time,
for the regului sessions of the
fupertor courts, as far as Libcr-
tui VVUI J (It* u« IWVI '
i r
This argument, iwcon
Dementi, is to me ;rrefiftible
und repels any conllruction o
the att unfavorable to the com
millions of the ancient cletks
The two succeeding legiflatore
mutt have known, that thel<
confequencca would result fron
a vacation ol the cemrnillion:
of the old clerks j and if appri
led of them, ate we jultifid
| in giving the act an expofuioi
! productive of such milchicviou
effects ? I think it was notib
i intention of the leg*lUiure i
vacate the commilhoncrs ol th
ancient clerks. 1 take the it
v
i
$
tention of the Icgiflature as the
polar star of direction in the
present invefiigation ; there ate
however other auxiliary princi.
pies equally favorable to the
conduction I have given
to the amendatory act, and to
which I (hall now briefly ad
vert.
Unless an aft is declaratory
of a common, law principle, it
i cannot retrospect. Our cL
cheat law is merely declaratory
of the common law, and there
fore it embraces all antecedent
cases of efcheaied property —
that is to lay, it has a retiofpec
tive operation In this relpeft,
an aft declaratory of a common
law principle—(ot* of what was
the law previous to its fiatutory
form) differs from an txpojl
jaflo law, which can be applica
ble only to crimes*
The amendatory act is not
a declaratory ilatute* and there
retrospect to the
com millions of the ancient
clerks.
Again—ls I miftakenot (for
here I have no acccfs lo books
and I am obliged to decide im
mediately on the queliion be.
fore trie) a ilatutc is never con
! hrued to operate retrofpective*
| ly, if such a conltruftion tends
to defeat a freehold interest ;
and juch an intert (l is heid un
der the coinmillions of the an
cient clerks.
t ! pon these principles, there
fore ihe coinrnjfn.ons durate bene
f set grjfcrint (land upon a basis
which cannot be subverted. —
And are these principles to he
rejefted when it is inapoffible
to find in the amendatory a£t,
any expreflions which militate
with their adoption ? I repeat
the question, which was put by
the loliftor.general, in the ar
guments with which he favored
the court ; 1 fay I repeat the
question, can a mere implication
devclt an officer of an appoint
: ment derived from the confti
, luucm ; dependent for its dura
• tion upon ihr, moral conduCt
- and good behaviour of thai cf_
i ficcr and recognized by all so
: lemnities of the executive de
; paitment? If the Icgiflatuic
1 1 had intended to vacate the Corn-
: millions of the old clei ks, would
. they have left so important a
1 principle fubjeft to implication
!* or arbitrary deduction P I have
1 too high a refpcct for legif
s lative wisdom to fuppolc so.
We may yet in this dicuilion
* proceed a little further. The
- maxim exprrjjio nnius eji ex~
• clv.Jio aherius , applies with all
3 its force in the conttruclion of
'» a conftitutiona! principle. We
c ought never to trespass upon the
letter of the confiituiion. It is
a compaft upon which the fun*
i I damental rights of the people
repole, and therefore lliould
}f be as plain Sc explicit in its lan
v guage as thole rights are in their
s. nature. A conttitutional prin
rs ciple cannot— ought not to be
le put afloat upon the sea ofcon.
m ttruftion, Its meaning andop
is oration ought at once to be as
i obvious to the meanest, as to be
rd molt enlightened capacity.—
m Now, it is only by a conftruc
l»< tion refined and profeffional,
hi we can draw the inference, or
ic force the implication, dettruc
ht tive under the amendatory act,
m (now a pan of the conflitmionj
MONDAY, December 3> 1809.
of the comniilfions held by the
ancient clerks.
Quacunquc via data— therefore
from whatever point the iub.
ject is viewed—whether upon
! the intention of the legiflaturc,
: the indifputed rules and maxims
i which govern the intcrpieta
tionof llatutes, or the plain let
ter of the amendatory atl which
j forms a part of the conllitution,
■ upon ail ibefegrounds it appears
to xne, that the cornmifftons
of the clerks eletted under the
guarante of the conllitution have
not been vacated. The clerk
of this court holds one of these
coinmidions, and l a:n therefore *
of opinion, that his rc.clcaion
; does not lo tar impair the tenure
of his office, as to render ne“
l cellary a renewal of his com
million. I he court will of
course proceed in the dilchange
t of its duties*
NEVV-YORK, Nov. 14.
I,alt evening arrived at this
port the ft)ip Orion, M*M)llin,
from Tonningen, which port he
left on the Bth October, at
which time the markets were
very good for American and
Colonial produce—that it was
reported Jiouaparie remained
ill at Vienna > and that it
I was expe&ed hoftilhes would
I speedily recommence between
France and Austria.
Fatal Dubl. On die 17th of
Oct. a disputa arose on bord the
! frigate Ksacx, off Norfolk, be„
| t'veen Dr. JHj da Flay, am ! Mr “
j Vourhccs, both of the United
States navy. The succeeding day,
the latter sent a challenge, which
was immediately accepted, and
the parties repaired to the field
the saute evening. The article* ,
agreed upon were that the par
ties should stand at eight pace*
and exchange oce lire, which pro
ving ineffectual,each should then
advance three paces, and decida
the affair with the sword. Mr.
Voorhees fell at thefirst fire 6l soon
expired. l)r. Kay is represented
to have acted with courage, honor
aud propriety. He would have
shunned the bloody contest but
that the law of society constrain*
ed him to accept a peremptory anti
unconditional invitation to the
field.
Jhilticmre Federal Republican •
A gentleman observed to a
lady, that ft nee a recent illnefj,
a mutual friend of theirs spoke
very much like a puppy,like
ly enought,” replied the lady,
“ for I hear, that by order of*
the doftor lie has lately taker*
to bark.”
The publick fay, that the on*
ly I’ucceUful Expeditidn lord
j Caftiercagh ever planned was
1 that to Putnam Heath j and
that he never hit his object, ex
i cept when he fired as Mr. Can
%ning.
>TIS A PITV.
1 On Wednesday all lire people said,
‘ That Canning certainly wasdead,*
Ah ! then what said the city r
A tenth part sadly shock their head
And shaking sigh'd, & sighing said,
Alas ! it is a pity !
! Hut when on Thursday this was
found,
j To he a rumour without ground :
A'i ! then what said the city ?
The oilier nine parts shook their
j head *
I And deeply sigh’d, 5r sighing ,ajj >
I i Al as! it is a pity.
I I London paper ,
A
[No. 60.]