AUGUST, 1789.1 Judiciary. [H. OF R. than the usual course of nature, he should think it be done only by persons appointed as judges in a wonderful felicity of invention to propose the the manner before mentioned. The will of the expedient of hiring out our judicial power, and society is expressed and is disobeyed; and who employing courts not amenable to our laws, instead shall interpret and enforce that will but the perof instituting them ourselves as the Constitution sons invested with authority from the same requires. We might with as great propriety ne- society? The State Judges are to judge accordgotiate and assign over our legislative as our judi- ing to the law of the State, and the common law. cial power; and it would not be more strange to The law of the United States is a rule to them, get the laws made for this body, than after their but no authority for them. It controlled their passage to get them interpreted and executed by decisions, but could not enlarge their powers. those whom we do not appoint, and cannot con- Suppose an action was brought on a statute, detrol. The field of debate is wide; the time for claring a forfeiture equal to the whole of the consideration had been so ample, and that remain- goods against him whoever shall unlade without ing for debate so short, that he would not enter a permit; before the law was made, no court had fully into it. The gentleman from South Caro- jurisdiction. Could a State court sustain such an lina (Mr. SMITH) had very ably proved the ex-action? They might as properly assume adpediency of the motion. He would confine him-miralty jurisdiction, or sustain actions for forfeitself, he said, to another point; and if it could be ures of the British revenue acts. He did not established, it would narrow the discussion. mean any disrespect to the State courts. In some The branches of the judicial power of the United of the States, he knew the judges were highly States are the admiralty jurisdiction, the criminal worthy of trust; that they were safeguards to jurisdiction, cognizance of certain common law Government, and ornaments to human nature. cases, and of such as may be given by the statutes But whence should they get the power of trying of Congress. The Constitution, and the laws made the supposed action? The States under whom in pursuance of it, are the supreme laws of the they act, and to whom they are amenable, never land. They prescribe a rule of action for indi- had such power to give, and this Government viduals. If it is disputed whether an act done is never gave them any. Individuals may be comright or wrong, reference must be had to this rule; manded, but are we authorized to require the serand whether the action is compared with the rule vants of the States to serve us? It was not only of action in a State or Federal court, it is equally true, he said, that they could not decide this out of the power of the judges to say that right is cause, if a provision was neglected to be made, by wrong, or that wrong is right. If a man is re-creating proper tribunals for the decision, but strained of his liberty, and for that sues the officer of the General Government in a State court, the defendant shows that he was a marshal, and served a precept according to the law of the United States; then he must be cleared, otherwise the law of the United States would not be the law of the land. But there is a substantial difference between the jurisdiction of the courts and the rules of decision. they would not be authorized to do it, even if an act was passed declaring that they should be vested with power; for they must be individually commissioned and salaried to have it constitutionally, and then they would not have it as the State judges. If we may empower one State court, suppose the Supreme Court, we may empower all or any, even the justices of the peace. This will appear more monstrous if we consider In the latter case the court has only to inquire the trial of crimes. A statute creates an offence. into facts and the rules of action prescribed to Shall any justice of the peace be directed to sumindividuals. In the former they do not inquire mon a jury to try for treason or piracy? It was how, but what they may try. The jurisdiction true the Government would not direct a thing so of the court is the depositum of a truth. The wickedly absurd to be done; but who will believe supreme power in a State is the fountain of jus- Government may lawfully do it? It would be tice. Such streams are derived from this foun- tedious to pursue this, or even the ideas connecttain to the courts as the Legislature may posi-ed with it, very far. The nature of the subject tively enact. The Judges, as servants to the rendered it difficult to be even perspicuous withpublic, can do that only for which they are em- out being prolix. His wish was to establish this ployed. The Constitution had provided how this conclusion, that offences against statutes of the trust should be designated. The Judges must be United States, and actions, the cognizance whereof named by their Christian and sirnames, commis-is created de novo, are exclusively of Federal sioned during good behaviour, and have salaries. Causes of exclusive Federal cognizance cannot be tried otherwise, nor can the judicial power of the United States be otherwise exercised. The State courts were not supposed to be deprived by the Constitution of the jurisdiction that they exercised before, over many causes that may be tried now in the national courts. The suitors would have their choice of courts. But who shall try a crime against a law of the United States, or a new created action? Here jurisdiction is made de novo. A trust is to be exercised, and this can jurisdiction; that no persons should act as judges to try them, except such as may be commissioned agreeably to the Constitution; that for the trial of such offences and causes, tribunals must be created. These, with the admiralty jurisdiction, which it is agreed must be provided for, constitute the principal powers of the district courts. If judges must be paid, they might as well be employed. The remnants of jurisdiction, which may be taken away, are scarcely worth transferring to the State courts, and may as well be exercised by our own. The question being now called for from several parts of the House, [AUGUST, 1799. cause their judgment would be ineffectual; they could never carry it into execution. But I ap Mr. STONE Said, he hoped the question would prehend in all other cases the States could exe not be determined on the discussion it already cute that authority which is reposed in the United had. He thought, although gentlemen might States. Yet I do not doubt but the caution might have made up their minds on this subject, a very be necessary for securing to the General Governfull communication of the principles upon which ment, in reserve, those very powers, because such they acted in this momentous business ought to abuses may happen in the State courts, as to rentake place before the question was decided; for to der it necessary for the due administration of jus him it appeared of the greatest importance that tice that the national jurisdiction be carried over they should act rightly, and it should be known such States. But what I am not satisfied of is, they acted on right principles. It is admitted, whether it is now essential that we proceed to said he, on all hands, to be a work of extreme dif- make such establishments. I cannot conceive it ficulty; one gentleman has said that it is so diffi- to be now essential; because the business may be cult, we cannot correct it. But surely we ought done without, and it is not commanded by the to exercise a little patience in the examination; Constitution; if it is commanded by the Consti perhaps, on a minute inquiry, we may hear of tution, we have no power to restrain or modify it. some road by which we may avoid these difficul- If it is the right of an alien or foreigner to sue ties, and amply recompense ourselves, our con- or be sued only in the courts of the United stituents, and our posterity, for the expense of our States, then they have a right to that jurisdiction time. I confess, for my own part, I wish more in- complete, and then Congress must institute courts formation than I have yet received, in order to for taking exclusive cognizance of all cases pointreconcile me to the bill. I was so unfortunate oned out in the Constitution; but this would be cona former and memorable occasion as to differ from a majority of this House; perhaps this question may turn upon a similar principle, and renew that pain which it gives me to oppose what I find to be the voice of my country. I therefore most earnestly wish to be convinced that my ideas are founded on misconception, in order to go with the majority; but if I should be left in the minority, whether from not having my difficulties removed, or because they are insuperable, I shall ever cheerfully submit to the judgment of the House; and on this occasion I am ready to assent to every power necessary to the due administration of the Government. But I declare, in my mind, this is a system founded on principles distinct and separate from the general principles upon which the Constitution was framed. It appears to me that the present Government originated in necessity, and it ought not be carried further than necessity will justify. trary to the principle of the bill, which proposes to establish inferior courts with concurrent juris diction with the State courts. By the Constitution, Congress has a right to establish such inferior courts as they from time to time shall think necessary. If I understand the force of the words "from time to to time," it is that Congress may establish such courts when they think proper. I take it they have used an other precaution; and this construction is guarded by another clause in the Constitution, where it is provided that the Constitution itself, and all laws made in pursuance thereof, as well as treaties, shall be the supreme law of the land, and the judges in every State are to be bound thereby; any thing in the State laws or constitutions to the contrary notwithstanding. Now can gentle men be afraid that the State courts will not decide according to the supreme law? If they are, it is in the discretion of Congress to refuse them I believe the scheme of the present Govern- the opportunity; but the bill gives them a concurment was considered by those who framed it as rent jurisdiction, and shows that these dangers are dangerous to the liberties of America; if they not really apprehended; if they give them conhad not considered it in this point of view, they current jurisdiction, they have the power of giving would not have guarded it in the manner they them complete; and they may delay from time to have done. They supposed that it had a natural time the institution of national courts, until they tendency to destroy the State Governments; or, suppose or have experienced the inadequacy of on the other hand, they supposed that the State the State courts to the objects granted by the Governments had a tendency to abridge the pow- Constitution to the participation of the Judiciary ers of the General Government; therefore it was of the United States. If, sir, the State judges necessary to guard against either taking place, are bound to take cognizance of the laws of the and this was to be done properly by establishing United States, and are sworn to support the Gena Judiciary for the United States. This Judiciary eral Government, the system before us must have was likewise absolutely necessary, because a great originated from a source different from that from many purposes of the Union could not be accom- which the Government itself derived its existence. plished by the States, from the principle of their Yet, I admit, sir, that there is a necessity for ingovernment, and could not be executed from stituting Admiralty courts, though it is not be a defect in their power. But all these, I pre-cause I consider the power of the State inade sume, are involved in the jurisdiction of the quate to that object; but because those courts are Supreme Federal Court. I apprehend in every not instituted in all of them, and it is proper thing else the State courts might have had com- there should be a maritime jurisdiction within plete and adequate jurisdiction; the State courts the bounds of every State to determine cases aricould not determine between State and State, be- sing within the same. It depends not upon the that AUGUST, 1789.] Judiciary. [H. OF R. a right to the property; the State court says the citizen, and the Continental court the alien: What is to be done? Here is no tribunal to determine between them; it can only be determined by the sword. Gentlemen ought to examine this part of the subject more fully before they decide it. priciple, but on the fact, that I admit it to be necessary for Congress to organize an admiralty system; for I take it, that were admiralty courts established in the different States, and were you to make laws that affected admiralty cases, they would be as much obliged to determine by your laws as if you had instituted the courts yourselves. If, then, the State courts have the power, your Mr. BURKE declared it to be a singular innovasystem is not necessary, unless they will not exe-tion on the privileges of the citizens, and such as cute that power; it must therefore depend on your they would never submit to; for they never had suspicion of their want of judgment or integrity. ] an idea that by this revolution they were to be I declare I can contemplate a time, with great pain, when one of those cases may happen; but I believe the time is not yet arrived, and we ought not to adopt a system which presupposes it. put in a worse situation than they were under the former Government. He said when their State district courts would be sitting, the Federal courts would be engaged at the same time, and he asked whether the people could ever consider such an accumulation of courts of justice calculated to promote their interests? It would harass them with extreme duty, as witnesses, jurors, &c. and leave them at the mercy of the judges as to fines, when they should be engaged at another court. With respect to the time of the court sitting, it might be made at a most inconvenient time of the year, and the place might be at the most distant part of the State, where a man might be dragged three or four hundred miles from his home, and tried by men who know nothing of him, or he of them; he was sure, under such circumstances, the freemen of America could never submit to it. Mr. MADISON said that all these points might secured in the bill, when they came to the part that related thereto. I know it is of great importance to have the decisions of the courts conformable; and I believe also it is of no inconsiderable importance to the Government, to have it operate as well on individuals as on States. It would be, if liked by the people, one of the strongest chains by which the Union is bound; one of the strongest cements for making this Constitution firm and compact. But I would not have the measure adopted at a time, and on a principle, which must have a direct contrary tendency. If we establish Federal courts, on the principle that the State courts are not able or willing to do their duty, we establish rivals. But if we honestly conduct upon the principle of the Constitution-necessity, we may expect some good to result from the exercise of our powers, and prevent any clashing of jurisdic-be tion; but to act on other principles must introduce confusion. Every body knows with what phlegmatic and cool determination, with what disregard of surrounding objects, courts maintain their separate jurisdictions. If we search the history of courts with which we are well acquainted, we shall find, that though they did not Mr. MADISON said, it would not be doubted absolutely proceed to bloodshed, yet they put the that some Judiciary system was necessary to acwhole community in commotion with the clash-complish the objects of the Government, and that ing of their jurisdictions; yet in that country the citizen and the community have a remedy. I fancy it is not so in this; I believe, instead of being found what the gentleman from South Carolina has termed them, planets rolling in their orbits, on the immutable principles of order, so as not to interfere with each other, they will be felt in concussion, and their violence will violate the harmony with which gentlemen please their imagination. The clew of separate jurisdiction will twine into such a state of perplexity, as to render it impossible for human wisdom to disentangle it without injury. Mr. LAWRENCE expressed himself against the motion for striking out, because he conceived that it was essential to carry this part of the Constitution into effect, and that the courts had better be established now than hereafter. it ought to be commensurate with the other branches of the Government. Under the late confederation, it could scarcely be said that there was any real Legislative power-there was no Executive branch, and the Judicial was so confined as to be of little consequence; in the new Constitution a regular system is provided; the Legislative power is made effective for its objects; the Executive is co-extensive with the Legislative, and it is equally proper that this should be the case with the Judiciary. If the latter be concurrent with the State jurisdictions, it does not follow that it will for that reason be impracticable. It is admitted that a concurrence exists in some cases between the Legislative authorities of the Federal and State Governments; and it may be safely affirmed that there is more, both of novelty and difficulty in that arrangement, than there will be in the other. The gentlemen have mentioned jails and different processes; they might have traced it down to an execution, and shown us what might have been the consequence. Suppose an alien has a right to a man's property, and a citizen the same, they lay their executions at the same time, the jurisdictions do not know each other, they take To make the State courts Federal courts, is liano cognizance of each other's proceedings, the ble to insuperable objections, not to repeat that land is taken by the State court, and the possessor the moment that is done, they will, from the highturned out; if it is taken by the officer of the Con-est down to the county courts, hold their tenures tinental court, the possessor is turned out also, and during good behaviour, by virtue of the Constituan action is brought to determine again who has tion. It may be remarked, that, in another point of view, it would violate the Constitution by usurping a prerogative of the Supreme Executive of the United States. It would be making appointments which are expressly vested in that department, not indeed by nomination, but by description, which would amount to the same thing. [AUGUST, 1789. here? I am of opinion it is evident it does not, Under the old form of Government, Congress had no compelling Judiciary; no power of reversing the decrees of the State Judges; but it is contended that they have, or ought to have more under the present system. It is allowed, sir, that But laying these difficulties aside, a review of Congress shall have the power, in its fullest exthe constitution of the courts in many States will tent, to correct, reverse, or affirm, any decree of a satisfy us that they cannot be trusted with the State court; and assuredly the Supreme Court execution of the Federal laws. In some of the will exercise this power. How then can our naStates, it is true, they might, and would be safe tional faith or honor be injured by striking out and proper organs of such a jurisdiction; but in the clause in future? It must be obvious to the others they are so dependent on State Legisla- gentleman himself, that his fears are groundless; tures, that to make the Federal laws dependent for the Supreme Court will interfere and keep the on them, would throw us back into all the embar- State Judiciaries within their bounds: That aurassments which characterized our former situa-thority will tell them, thus far ye shall go, and no tion. In Connecticut the Judges are appointed annually by the Legislature, and the Legislature is itself the last resort in civil cases. In Rhode Island, which we hope soon to see united with the other States, the case is at least as bad. In Georgia, even under their former constitution, the Judges are triennially appointed, and in a manner by no means unexceptionable. In Pennsylvania they hold their places for seven years only. Their tenures leave a dependence, particularly for the last year or two of the term, which forbid a reliance on Judges who feel it. With respect to their salaries, there are few States, if any, in which the Judges stand on independent ground. On the whole, he said, he did not see how It could be made compatible with the Constitution, or safe to the Federal interests, to make a transfer of the Federal jurisdiction to the State courts, as contended for by the gentlemen who oppose the clause in question. Mr. BURKE said he had turned himself about to find some way to extricate himself from this measure; but which ever way he turned, the Constitution still stared him in the face, and he confessed he saw no way to avoid the evil. He made this candid confession to let them know why he should be a silent spectator of the progress of the bill; and he had not the most distant hope that the opposition would succeed. If any substitute could be devised that was not contrary to the Constitution, it should have his support, but he absolutely despaired of finding any. He was, however, satisfied that the people would feel its inconvenience, and express their dislike to a Judicial system which rendered them insecure in their liberties and property; a system that must be regarded with jealousy and distrust. Mr. JACKSON.-Sir, the importance of the question induces me to trouble the committee so far as to answer one of the arguments made use of in the opposition, and which I think necessary, to do away the impressions they have made, should be answered. The gentleman from Massachusetts (Mr. SEDGWICK) has carried the nation to the highest pinnacle of glory, and in a moment hurled it down to the lowest pitch; and has laid the loss of national faith, credit, and honor, to the want of an energetic Judiciary. Every good citizen will, with him, deplore the abject state we have been brought to; but, sir, does this argument hold good further: and will bring them back when they exceed their bounds, to the principles of their insti tution. Another gentleman from Massachusetts (Mr. AMES) has advanced a position I cannot agree with. He has said, that the State courts will not, nor cannot, take cognizance of the laws of the Union, as it would be taking up matters out of the bounds of their jurisdiction, and interfering with what was not left to them. Sir, I answer that gentleman with the words of the Constitution: This Constitution, and the laws of the United States made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land." This surpasses in power any State laws; the Judges are bound to notice them as the supreme law, and I call upon the gentleman to know, as a profes sional man, if a criminal was tried for a capital offence under a State law, and could justify himself under the laws of the Union, if the State Judges could condemn him? Sir, they would forfeit their oaths if he was not acquitted; this, however, he has admitted in his argument in some measure. If there was no jurisdiction, neither could they notice the law. I acknowledge that the gentleman has used many specious arguments, but as they rest chiefly on this ground. I think they are done away. The gentleman from Virginia (Mr. MADISON) has advanced, that, by leaving this power in the hands of the State Judiciaries, or by joining their concurrent authority, you establish them as infe rior jurisdictions. If the gentleman will turn to the eleventh and twenty-fifth sections, he will find those positions established, and what fell from the gentleman from Massachusetts concerning juris diction is likewise answered. The State courts. by the former, are acknowledged to have concur rent jurisdiction in a large extent, where the United States and an alien are the party, or be tween citizens of one State and those of another. And if the jurisdiction is acknowledged in some points, it must be supposed to be so in the fulles extent. By the twenty-fifth, sir, they are again fully established; and therefore they are now, by the present system, in every light as fully, agree ably to the gentleman's argument, inferior juris dictions, as they possibly could be by the princi ples of the gentleman from New Hampshire. And here, sir, I will advert to the general arguments, AUGUST, 1789.] Judiciary. [H. OF R. used by the gentlemen in opposition, of the neces- I condition that the Legislature had a discretion in sity of power to enforce the laws of the Union, the business; and it required but little attention to and support the national existence and honor. discover that the plan proposed by the Senate was Sir, I am opposed in some degree to this clause. better than what gentlemen proposed to substitute, For the extent of its power, even supposing the inasmuch as it was more complete, and not more District and Circuit courts abolished, swallows up expensive. There would be a uniformity of deevery shadow of a State Judiciary. Gentlemen, cision under the former; while the latter would therefore, have no reason to complain of the want render the construction of the law vague, if not of Federal Judiciary power, for the clause de- various. It would less disturb the harmony of the clares, "That a final judgment or decree in any States; and of consequence be more agreeable to suit, in the highest court of law or equity of a the people. He hoped the committee would reState in which the decision of the suit could beject the motion for striking out the clause. had, where the validity of a treaty is drawn in Mr. SMITH, of South Carolina, observed, that question, or statute thereof, or an authority exer- all the difficulties and inconveniences which the cised under the United States; and the decision gentlemen have started as arising from the estais against their validity; or where is drawn in blishment of a District court arise from the Goquestion the validity of a statute, or an authority vernment itself. All the objections made to this exercised under any State on the ground of their court apply equally against having any National being repugnant to the Constitution, treaties, or Judicature. Indeed, if they had any weight, they laws of the United States, and the decision is in would as forcibly apply to the very institution favor of such their validity; or where is drawn in which the gentlemen patronise, viz: a court of question the construction of any clause of the admiralty and piracy. If there is to be this perConstitution, or of a treaty or statute, or of a com-petual clashing of jurisdictions between the Fedemission, held under the United States, and the de-ral and State courts, this eternal jarring between cision is against the title, right, privilege, or ex- their respective officers, will not these embarrassemption specially set up, or claimed by either par-ments exist under any Judicial system that the ty under such clause of the said Constitution, ingenuity of man can devise? Will they not treaty, statute, or commission, may be re-exam- take place under the establishment proposed by ined and reversed, or affirmed in the Supreme Court of the United States." Sir, in my opinion, and I am convinced experience will prove it, there will not, neither can there be any suit or action brought in any State courts, but may, under this clause, be reversed or affirmed by being brought within the cognizance of the Supreme Court. But should there be some exceptions for the present, yet, sir, the precedent is so forcible, for it goes so far as even to admit of constructions on some of the articles, that by some means or other those articles will in time be totally lost. Sir, let us look at the Court of Exchequer in England: revenue trials at first engrossed its whole attention; from a series of fiction there is now no personal action but from construction may be brought within their cognizance. It is only a suggestion, and very seldom true, that a plaintiff is a king's debtor, and that the action is well grounded: yet there they have counter checks, and another resort; here the Supreme Court is final. Sir, the gentleman from South Carolina (Mr. BURKE) was right in declaring a resident on Lake Erie might be dragged to New York for trial, or one on the Oconee to Savannah. Nay, sir, I know not how far in time a man might not be dragged; perhaps from the Oconee to be tried in North Carolina; for one part of the bill, without specifying the spot, declares, that the Circuit courts shall have power to hold special sessions for the trial of criminal causes at their discretion. On these considerations, I hope the House will not adopt the present system, until the milder one is tried. It is calculated to foment and harass the people, without answering any essential purpose. Mr. SHERMAN said, it was admitted, on all hands, that a Judiciary system was necessary even upon the other side? And will the mere alteration of the court from a district, to a court of admiralty and piracy, remedy this evil? But these objections come too late, a National Government is established. The Judicial power is a component part of this Government, and must be commensurate to it. If we have a Government pervading the Union, we must have a Judicial power of similar magnitude; we must establish courts in different parts of the Union. The only question is, which is the plan best calculated to answer the great object we all have in view, the carrying the Judicial powers into operation with the least inconvenience to the citizens. This double system of jurisprudence is unavoidable; it is as much a part of the Constitution as the double system of legislation; each State has a Legislative power, both operating on the same persons, and in many cases on the same objects; it is infinitely more difficult to mark with precision the limits of the Legislative than the Judicial power; no one, however, disputed the propriety of vesting Congress with a Legislative power over the Union, and yet that power is perhaps more liable to abuse than the Judicial. It has, indeed, been contended, in some of the State conventions, that Congress ought not to be entrusted with direct taxation; and it is remarkable that the same obstacles were urged against that power which is now suggested against this institution. It was then said that Federal and State taxes could not operate at the same time without confusion; it was then facetiously asked, whether the Congressional and State collector, who had seized a horse for the payment of taxes, were to divide him between them; it is now asked, with equal pleasantry, whether the marshal of the district, and the sheriff of the State court, who have taken the same |