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H. OF R.)

Judiciary.

[AUGUST, 1789.

compel him to attend a court on the return of the to this court. This question is as important as writ, if he is not in your power? If this can be the former; for it will be no less difficult than done, your system will furnish opportunities for improper to enlarge or curtail the jurisdiction of collusion. A person may be in confinement for a court already established. an actual debt sued in the State courts, when the With respect to the first point, it seems genmarshal of the district shall wrest him out of the erally conceded that there ought to be a district hands of the sheriff for a fictitious debt, intended couri of some sort. The Constitution, indeed, to operate as a rescue. Perhaps gentlemen may recognises such a court, because it speaks of think the same jail will answer for both ; but you "such inferior courts as the Congress shall estabcannot have two keepers of the same jail, and one lish;" and because it gives to the Supreme Court will refuse to obey a foreign authority. If these only appellate jurisdiction in most cases of a fedobjections could be obviated, I should think more eral nature. But some gentlemen are of opinion favorably of the bill. But, for my part, I cannot that the district court should be altogether consee how it is possible. We have supported the fined to admiralty causes; while others deem it Union for thirteen or fourteen years without such expedient that it should be entrusted with a more courts, from which I infer that they are not neces- enlarged jurisdiction ; and should, in addition to sary, or we should have discovered the incon- admiralty causes, take cognizance of all causes of venience of being without them; yet I believe seizure on land, all breaches of impost laws, of Congress have always had ample justice done in offences committed on the high seas, and causes all their claims; at least, as I said before, I never in which foreigners or citizens of other States are heard any complaint, except the case of an appeal parties. The committee are now to decide beon a capture. Now, if we had a Supreme Court, iween these two opinions. After mature reflecto which appeals can be carried, and an Admiralty tion, I am inclined to favor the latter. What are Court for deciding cases of a maritime nature, our the objections advanced against it? A gentleman system will be useful and complete. Why should from New Hampshire has observed, that such an we suppose that the administration of justice will establishment will be unnecessary, expensive, and not be continued with its wonted impartiality ? disagreeable to our constituents.' Justice, he obSuppose a merchant gives a bond to pay one hun- served, could be as well administered in the State dred dollars duty, can not that bond be recovered as in the district courts; and should the State as well and speedily in the State courts, as in any courts betray any symptoms of partiality,

their Continental court whatever ? But admitting the adjudications would be subject to revision in the judges may be partial, will not the same jury be Federal Supreme Court, which, in his opinion, employed ? The jurors must come from the afforded sufficient security. If the State courts vicinage, and in all probability the district judges are to take cognizance of those causes which, by will be composed of gentlemen who preside on the the Constitution are declared to belong to the benches of the State courts. Now, in this case, it judicial courts of the United States, an appeal is the same to the Government, to foreigners, and must lie in every case to the latter, otherwise the to citizens. But if a distinction is necessary, it judicial authority of the Union might be altogether can only be with respect to maritime affairs, de- eluded. To deny such an appeal, would be to pendent on the law of nations; and for this reason frustrate the most important objects of the Fedwe mean to make a provision by instituting eral Government, and would obstruct its operaCourts of Admiralty. If justice cannot be had tions. The necessity of uniformity in the decision here, there will be an appeal to the Federal Su- of the Federal courts is obvious; to assimilate the preme Court, which is all that can be required. principles of national decisions, and collect them, Now, with respect to the expense of establishing as it were, into one focus, appeals from all the these latter courts, it will not be a fiftieth part as State courts to the Supreme Court would be inmuch as the proposed institution, and its advan- dispensable. It is, however, much to be appretage and convenience will be a thousand times as hended that this constant control of the Supreme great. The whole bill turns upon striking out Federal Court over the adjudication of the State this clause. If it is done, I intend to move one courts, would dissatisfy the people, and weaken for the establishment of Courts of Admiralty, the importance and authority of the State judges

. with some regulations respecting appeals. Nay, more, it would lessen their respectability in

Mr. Smith, of South Carolina.-As much will the eyes of the people, even in causes which depend on the determination of this question, it is properly' appertain to the State jurisdictions ; necessary it should be well considered by all the because the people, being accustomed to see their committee. It will not be easy to alter the system decrees overhauled and annulled by a superior when once established. The judges are to hold tribunal, would soon learn to form an irreverent their commissions during good behaviour, and after opinion of their importance and abilities. " they are appointed, they are only removable by appears, therefore, expedient to separate, as much impeachment; consequently this system must be as possible, the State from the Federal jurisdica permanent one. The committee will not, there. tion, to draw a broad line of distinction, to assiga fore, determine that there shall be district courts clearly to each its precise limits, and to prevent a until they have reflected seriously on the conse- clashing or interference between them. The exquences attending their vote.

pense is suggested as an objection to this system. After this point is settled, the next which It is admitted by the gentlemen who makes it, occurs is the extent of jurisdiction to be annexed that it is proper to have District Courts of Admi

AUGUST, 1789.]

Judiciary.

[H. of R.

ralty. These courts múst, of necessity, have ju-causes, might delay or frustrate the collection of risdiction of offences committed on the high seas. the revenue, and embarrass the National GovernNow the establishment of such a court will induce ment. From this view, it appears that the disnea rly all the expense that will be requisite ; the trict court is not clothed with any authority of extension of the system to the length I have which the State courts are stripped, but is barely stat ed will occasion a very trifling increase of the provided with that authority which arises out of expense; and if, after due consideration, it should the establishment of a National Government, and be found that the latter plan would be more con- which is indispensably necessary for its support. ducive to the happiness and welfare of our con- Can the State courts at this moment take cognistituents than the other, a small increase of the sance of offences committed on the high seas? expense ought to be no impediment to the attain. If they do, it is under an act of Congress, giving ment of so valuable an object.

them jurisdiction ; and, in such cases, the Judge There can be no reason why our constituents of the Admiralty is associated with two common should be displeased with the arrangement; the law judges: this tribunal becomes then a federal district judge will be elected from among the court for the particular occasion, because it is citizens of the State where he is to exercise his established by Congress. The State courts have functions, and will feel every inducement to pro- no jurisdiction of causes arising from a national mote the happiness and protect the liberties of impost law, because no such law heretofore exhis fellow-citizens. He will be more indepen- isted. Where, thep, is the ground of uneasiness dent than the State judges, holding his commis- suggested by gentlemen ? The foregoing observasion during good behaviour, and not influenced tions must persuade them that their alarms have by the fear of a diminution of his salary. Trial been premature. But it is said that there must by jury will be secured in all cases wherein it is be court-houses, judges, marshals, clerks, constaprovided in the State courts. Should the district bles, jails, and gibbets; that these establishments judge be under any bias, it is reasonable to sup- will occasion a heavy and unnecessary burden, pose it would be rather in favor of his fellow- and have a tendency to create disgust in the citizens than in favor of foreigners, or the United people. States. By restricting the State courts to few I readily agree with the gentleman that there causes of federal jurisdiction, the number of ap- are in every community some individuals who peals will be diminished, because every cause will see, with pain, every new institution in the tried in those courts will, for the reasons before shape of a constable, jail, or gibbet, and who mentioned, be subject to appeal; whereas the think that law and courts are an abridgment of jurisdiction of the district court will be final in their liberty: but I should be very sorry to conmany cases. Inasmuch, therefore, as those ap- cur with him that this is a prevailing opinion. I peals are grievous to the citizens, which lie from think better of our constituents, and am persuaded à court within their own State to the Supreme they are sensible that those institutions are necesCourt at the seat of Government, and at a great sary for the protection of their lives and prodistance, they will consequently be benefited by perty; and grow out of the very nature of a fedean exemption from them. In the bill, as sent ral Government. Care, indeed, should be taken from the Senate, the jurisdiction of the district to prevent their being grievous and oppressive; courts is not so extensive as to occasion any just but as long as knaves and rogues exist in the alarm; it is, in my opinion, rather too confined, world, and monsters, under the form of men, and does not embrace objects enough. It would preying upon the innocent, so long will courts be difficult to take from that court any of its juris- and all their concomitants be wanted to redress diction without materially injuring the whole the wrongs of the latter, and repress the depredajudicial system, except the clause relating to con- tions of the former. But let me ask the gentlesuls and vice-consuls, which appears to me to be man whether a Court of Admiralty and a court improperly annexed to the district court, and for the trial of offences on the high seas, which which I shall move to strike out, when we come he agrees ought to be established, will not require to that part of the bill. But to what objects do all these institutions, viz: court-bouses, clerks, the district courts extend? To admiralty causes sheriffs, &c. ? There can be no doubt of it. The and trials for piracy committed on the high seas. extension of the jurisdiction of the district court, Gentlemen bave conceded that the district courts as far as I think it necessary, will not occasion shall have jurisdiction of these cases—to offences any one article of expense, or any one institution against the United States.

that will not be necessary on the gentleman's It is very proper that a court in the United plan. To suppose that there will be a clashing States should try offences committed against the of jurisdiction between the State and district United States. Every nation upon earth pun- courts on all occasions, by having a double set of ishes by its own courts offences against its own officers, is to suppose the States will take a plealaws. To seizures on land for breaches of the sure in thwarting the Federal Government; it revenue laws, this power will not be censured ; it is a supposition not warranted by our fellowwould be felo de se to trust the collection of the citizens, who, finding that these establishments revenue of the United States to the State judica- were created for their benefit and protection, will tures. The disinclination of the judges to carry rather promote than obstruct them; it is a suppothe law into effect, their disapprobation of a cer- sition equally opposed to the power of direct taxtain duty, the rules of the court, or other obvious ation, and to the establishment of State and

H. OF R.]

Judiciary.

[AUGUST, 1789

county courts which exist in the several States, society; and consequently the laws and rules and are productive of no such inconvenience. were formed merely for the use of that society. In These several courts will have their limits de- fact, the convenience of the people is, or ought to fined, and will move within their respective orbits be, the first principle of every Government; and without any danger of deviation. Besides, I am the people are entitled to expect it. Our present not persuaded that there will be a necessity for Constitution has set out with this declaration. having separate court-houses and jails; those • We the people," in its preamble, and therefore, already provided in the several States will be in the system before us, every attention of the made use of by the district courts. I remember Legislature ought to be drawn to this point. He when the court for the trial of piracy, under the apprehended, he said, that the system before them authority of Congress, was held at Charleston, was not framed or calculated for that purpose, but the judges sat in the court-house; the prisoners appeared to be rather intended to destroy some of were confined in the jail, were under the custody the most valuable and important privileges of the of the constable, and were executed by the orders citizens. He did not wish to diminish the powers of the sheriff of the district of Charleston. All in the Federal Judiciary, which might be thought these were State institutions, and yet the court necessary, and commensurate to the carrying the was a federal court.

Government fully into execution ; but he conThere is another important consideration ; that sidered the system as unnecessary, vexatious, and is, how far the Constitution stands in the way of expensive, and calculated to destroy the harmony this motion. It is declared by that instrument and confidence of the people. that the judicial power of the United States shall The motion has been objected to by the gentlebe vested in one supreme, and in such inferior man from South Carolina, for striking out the courts as Congress shall from time to time estab- clause, for several reasons; the first I shall notice lish. Here is no discretion, then, in Congress to is," that in several of the States the judges are vest the judicial power of the United States in limited in their appointments; that inferior jurisany other than the Supreme Court and the infe- dictions are required by the Constitution, and rior courts of the United States. It is further that the State judges are not vested with permadeclared that the judicial power of the United nent salaries.' Those arguments, he observed. States shall extend to all cases of a particular fell to the ground on referring to the Constitudescription. How is that power to be adminis- tion; the Constitution, he said, did not absolutely tered ļ Undoubtedly by the tribunals of the Uni- require inferior jurisdictions; it says that the ted States; if the judicial power of the United judicial power of the United States shall be Fested States extends to those specified cases, it follows in one Supreme Court, and in such inferior courts indisputably that the tribunals of the United as Congress may, from time to time, ordain and States must likewise extend to them. What is establish.” The word “may” is not positive, and the object of the motion ? To assign the juris- it remains with Congress to determine what infediction of some of these very cases to the State rior jurisdictions may be necessary, and what courts, to judges who, in many instances, hold they will ordain and establish; for if they choose their places for a limited period; whereas, the or think that no inferior jurisdictions are necesConstitution, for the greater security of the citi- sary, there is no obligation to establish them. It . zen, and to insure the independence of the federal then remains with the Legislature of the Union judges, has expressly declared that they shall to examine the necessity or expediency of those hold their commissions during good behaviour; courts only. On the subject of expediency, he to judges who are exposed every year to a dimi-said, for his part, he could not see it, and was of nution of salary by the State Legislatures; where- opinion that the State courts would answer every as, the Constitution, to remove from the federal judiciary purpose. judges all dependence on the Legislative or Ex The gentleman from South Carolina has again ecutive, has protected them from any diminution advanced" that if district and circuit courts are of their compensation. Whether the expediency not adopted, the harmony of the States and of the or the unconstitutionality of the motion be con- people will be at stake, and that the system will sidered, there are more than sufficient reasons to be more vexatious by a series of appeals." He oppose it. The district court is necessary, if we did not agree with that doctrine. He was perintend to adhere to the Constitution, and to carry suaded that the harmony of the people, their liberthe Government into effect. At the same time, 1 ties and properties, would be more secure under shall cheerfully assist in organizing this court in the legal paths of their ancestors; under their that mode, which will prevent its being grievous modes of trial, and known methods of decision. or oppressive, and will render it conducive to the They have hitherto been accustomed to receive protection and happiness of our constituents. justice at their own doors in a simple form. The

Mr. Jackson said he conceived this to be the system before the House has a round of courts most important business that had as yet come appellate from one to the other; and the poor before the House. It was what he had long con- man that is engaged with a rich opponent will be sidered, and had with difficulty decided, but upon harassed in the most cruel manner; and although mature consideration was impressed with the the sum be limited for appeals, yet the poor indisame sentiments as the gentleman from New vidual may have a legal right to a sum superior Hampshire. It must be admitted that a society to that limitation, (say above a certain amount of was formed before the rules that governed that dollars,) and not possess fortune sufficient to carry

LUGUST, 1789.]

Judiciary.

[H.or R.

n his lawsuit ; he must sink under the oppression nobility contested the point, which was never f his richer neighbor. He was clearly of opinion finally settled until the great charter of John, hat the people would much rather have but one which it was one of the causes of producing, and ppeal, which, he conceived, would answer every that fixed the ecclesiastical bounds. He would urpose; he meant from the State courts imme- ask if our modes of trial must not be as dear to iately to the Supreme Court of the continent. our fellow-citizens as theirs were to them, and if in Admiralty court of jurisdiction he would the same commotions may not be reasonably exrant might be necessary for the trial of maritime pected ? He feared they would be found so. Is ffairs, and matters relative to the revenue ; to it proper we should be so suspicious of the State rhich object he would cheerfully enlarge it; and judges? He could not, he said, for his part, conrought for the present it would be far more eligi- sider human nature so depraved, as to suppose le. The gentleman has likewise advanced that that with an oath to observe the supreme law of ve expense would be as great without as with the land, the State judges would not obey it. In le inferior jurisdiction. He would beg leave to his opinion, it became us, as a wise Legislature, to iffer with him, and declared that it would be in take up and execute the least exceptionable and de proportion of three to one; for although the milder mode first. There was no requisition, no lerk and marshal of the district courts are the necessity from the Constitution. If, on experifficers proposed for the circuit courts, yet there ment, it should be found (and the House generrould arise a train of inferior officers, conse-ally admits our laws are at present experimental) uently attendant on those officers and courts, ex- that sufficient attention is not paid, and that our lusive of jurors, witnesses, &c. He has likewise Government requires for its existence a more enAvanced that it would be necessary to prevent ergetic mode, he pledged himself to agree to any onfusion; the line of distinction would be much inferior jurisdictions that may be thought necesasier preserved in the present state of the depart- sary for that purpose; but he never could consent tent, for many of the reasons pointed out by the to oppress his fellow-citizens without being taught entleman from New Hampshire, exclusive of the by absolute necessity arising from experience. ifficulty of making new rules. But we are told, Mr. Benson said, if the House decided in favor e said, it is necessary that every Government of the present question, it would involve a total jould have the power of executing its own laws. abandonment of the judicial power, excepting 'his argument would likewise fail, when we find those cases the honorable gentlemen mean to proat the Constitution, treaties, and laws of the vide for, namely, the Courts of Admiralty and Su(nited States are, by the Constitution itself, made preme Courts. The honorable gentleman had ve supreme laws of the land. Are not the judges observed that difficulties would arise out of the f the different States bound by oath to support proposed establishment; but these difficulties or lat supreme law? Will they not recollect those embarrassments are not to be charged to the aths, and be liable to punishment by your act, House, they grow out of the Constitution itself. hich has obliged them to take that oath, if they The gentlemen suppose that two sovereign and o not respect it as such? Assuredly they will; independent authorities can never be exercised

is part of the compact formed with the States over the same territory; but this is not the busiut does there not remain the appellate jurisdic-ness of the committee; they could not get rid of on of the Supreme Court to control them, and these difficulties by retrenching their powers; ring them to their reason? Can they not re- they must carry the Constitution into effect. The erse or confirm the State decrees, as they may genileman has stated a case, in supposing that nd them right or wrong? Consequently this process shall issue from the State and continental ist argument falls to the ground.

courts, and both be served upon the defendant at That the system is vexatious can be easily the same time, and then asks what is to be done. roved, and is too obvious. An offender is drag- Is the man to be divided? Now, in return, he ed from his house, friends and connexions, to a would ask the same question; is the United States istant spot, where he is deprived of every advan- to abandon all its powers and jurisdiction, beige of former character, of relations and ac- cause the exercise of it may be attended with uaintance; the right of trial by a jury of the some inconvenience? As well might we ask inicinage is done away, and perhaps he is carried dividual States to abandon theirs, because there » a place where popular clamor might for the is some clashing with the Federal Judiciary, He woment decide against him; or, if allowed a trial apprehended that neither were to be abandoned, y vicinage, or his neighbors, it is equally vexa- but that they should endeavor to administer both ous to drag him two or three hundred miles from with as little inconvenience to either as was is home, with evidences to try and give testi- practicable. wony at a distant place; every thing is to be It is not left to the election of the Legislature readed from it. This, he observed, was contrary of the United States whether we adopt or not a o our wonted customs, and we need but revert to judicial system like the one before us; the words he history of Britain, after the Conquest, to view in the Constitution are plain and full

, and must be that struggles that nation made againsť innova- carried into operation. He would not undertake ions of this nature. The monkish clergy joined to say that it was the best system that could be vith the kings to oppress the people, to establish formed; but it had its advantages over some in ivil law, and get the legal power into their own which the honorable gentleman from New Hampands; the people took the alarm, and with the shire (Mr. LIVERMORE) had said that justice was

H. OF R.]

Judiciary.

[August, 1789. well administered; he thought there was more curred to prove to us how dangerous it would be reliance on judges who were appointed during to make the State Legislatures the sole guardians good behaviour, than on others appointed from of the national faith and honor. Already have the session to session, and ever dependent on the will United States been hurled down by those arms of the State Legislatures.

from a pinnacle of glory to the lowest state of de He left it to experience to show whether the gradation. The United States, after a glorious Judiciaries would interfere or not; some gentle and successful struggle, in which they displayed a men had predicted they would; it was possible valor and patriotism astonishing the Old World, that they might, and he did not know but that the secured their independence! and a single conces interference would be of such a delicate nature, as sion was the price of an honorable peace. The to compel the United States to relinquish her por- discharge of bona fide debts due from the citizens tion; or, on the other hand, the States individu- of America to the

subjects of Britain was all that ally might consent that the judicial power should Britain required. Now, is it not obvious to every be solely exercised by the Union. But all this man, that this honorable stipulation ought by all was wide of the question ; the House had nothing means to be considered the supreme law of the more to do than to perform their duty, and carry land ? Yet, what was the event ? State after the Constitution into full operation.

State, Legislature after Legislature, made laws * Mr. Sedgwick said, the gentleman would find and regulations in positive opposition to the treaty

; as many difficulties growing out of the substitute cide contrary to their State ordinances. What as those he apprehended from the plan on the table. He had asked what will be done with the It ill becomes me at this

time, when we hope to

have been the consequences of these proceedings? prisoners if they are taken at the same time in consequence of processes from the National and wipe off every ignominious stain, to recapitulate

State courts?. I answer by asking him, what will the evils it has drawn down upon the nation. But be done with the prisoners if they are taken

at the I hope they are sufficiently

notorious to put us on same time by a process from the Admiralty and our guard against trusting

essential powers out of State courts? The other difficulties he had ap: the wishes of the people.

dur hands, contrary to our duty, and contrary to prehended were well replied to by the honorable gentleman from South Carolina ; and I shall only not be organized without

establishing its judicial

When we are certain that the Government canremark, that we are so circumstanced that two distinct independent powers of judicial proceed ribunals; when we fear for its existence, (at least ings must exist; at least I do not see how we shall its existing with reputation and dignity,) unless get rid of the difficulty, if it is one, until there we provide for the due execution of national laws shall be a change in the Constitution.

and national treaties; shall we forego them because I did not suppose it was a question at this day, interfering process ? Sir, it has been already de

gentlemen apprehend some small difficulties from whether this Government is to exercise all the monstrated that the interference will be trifting, powers of a Government or not. I did conceive, if any; it will

be too small to authorize us to blast sir, that such an idea could exist in the mind of the expected benefits arising from a complete and any gentleman; yet what is the object of the efficient system of government. present motion ? Sir, it goes to divest the Goyernment of one of its most essential branches; if on the importance of this question would be of

Mr. Ames said, the remarks made by gentlemen this is destroyed, your Constitution is but the some utility in deciding it. The judicial power shadow of a Government. Is it not essential that a Government possess and to the people ; to the Government, because

is, in fact, highly important to the Government within

itself the power necessary to carry its laws by this means its laws are peaceably carried into into execution ?' But the honorable gentleman execution. proposes to leave this business to a foreign

author-/ wretched system that is which is divested of this ity, totally independent of this Legislature,

whether power. We see the difference between a treaty our ordinances shall have efficacy or not. Would which independent nations make, and which cara Suppose a State Government was inimical to the the will of the society, A refractory individual is Federal Government, and its judges were attached made to feel the weight of the whole community: glect to attend to the national business ; they laws, cannot last long, nor

do much good. By the might be corrupt, and in either case the public power, too, the people are gainers. T'he adimine might sustain an essential injury. And where fration ofo justice is the very performance of the State Legislatures that patronize them? Can we the reward of their tons; the equivalent for what by the State? Can we expect in this way to gument, therefore

, a priori

, is strong against.com the trial to be had; before a tribunal established nure the tree, and this is the fruit of it. The one poses we can. "'These are not chimerical suppo- defrauds the people

. "We live in a time of inge sitions ; they are founded in nature, and such as vation; but until miracles shall become home may be expected ; indeed, facts have already ocs common than

ordinary events, and surprise us les

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