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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 they would not be authorized to do it, even if an of the General Government in a State court, the act was passed declaring that they should be vesdefendant shows that he was a marshal, and served ted with power; for they must be individually a precept according to the law of the United commissioned and salaried to have it constituStates; then he must be cleared, otherwise the tionally, and then they would not have it as the law of the United States would not be the law of State judges. If we may empower one State the land. But there is a substantial difference be-court, suppose the Supreme Court, we may emtween the jurisdiction of the courts and the rules power all or any, even the justices of the peace. of decision.

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 direci 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. jurisdiction ; that no persons should act as judges Causes of exclusive Federal 'cognizance cannot to try them, except such as may be commissioned be tried otherwise, nor can the judicial power of agreeably to the Constitution ; that for the trial the United States' be otherwise exercised. The of such offences and causes, tribunals must be State courts were not supposed to be deprived by created. These, with the admiralty jurisdiction, the Constitution of the jurisdiction that they ex- which it is agreed must be provided for, constiercised before, over many causes that may be tute the principal powers of the district courts. If tried now in the national courts. The suitors judges must be paid, they might as well be emwould have their choice of courts. But who shall ployed. The remnants of jurisdiction, which try a crime against a law of the United States, or may be taken away, are scarcely worth transfera new created action ? Here jurisdiction is made ring to the State courts, and may as well be exerde novo.

A trust is to be exercised, and this can I cised by our own.

H. OF R.)


[AUGUST, 1799.

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The question being now called for from several cause their judgment would be ineffectual; they parts of the House,

could never carry it into execution. But I as 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 Govern full 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 jushim 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, io 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 Constiperhaps, 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 on ed out in the Constitution; but this would be copa former and memorable occasion as to differ from trary to the principle of the bill, which proposes a majority of this House; perhaps this question to establish inferior courts with concurrent jurismay turn upon a similar principle, and renew that diction with the State courts. pain which it gives me to oppose what I find to be By the Constitution, Congress has a right to the voice of my country. I therefore most ear- establish such inferior courts as they from time to nestly wish to be convinced that my ideas are time shall think necessary. If I understand the founded on misconception, in order to go with the force of the words " from time to to time," it is majority; but if I should be left in the minority, that Congress may establish such courts when whether from not having my difficulties removed, they think proper.' I take it they have used anor because they are insuperable, I shall ever other precaution; and this construction is guardo cheerfully submit to the judgment of the House ; ed by another clause in the Constitution

, where it and on this occasion I am ready to assent to every is provided that the Constitution itself, and all power necessary to the due administration of the laws made in pursuance thereof, as well as treaGovernment. But I declare, in my mind, this is ties, shall be the supreme law of the land, and the a system founded on principles distinct and sepa- judges in every State are to be bound thereby ; rate from the general principles upon which the anything in the State laws or constitutions to Constitution was framed. It appears to me that the contrary notwithstanding. Now can gentle the present Government originated in necessity, men be afraid that the State courts will not de and it ought not be carried further than necessity cide according to the supreme law? If they are, will justify.

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 com had 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 Gens a 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 bank government, 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 courtsare 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 are could not determine between State and State, be-sing within the same. It depends not upon the

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AUGUST, 1789.]


[H. OF R,

priciple, but on the fact, that I admit it to be ne- a right to the property; the State court says the cessary for Congress to organize an admiralty citizen, and the Continental court the alien: system; for I take it, that were admiralty courts What is to be done? Here is no tribunal to deestablished in the different States, and were you termine between them; it can only be determined to make laws that affected admiralty cases, they by the sword. Gentlemen ought to examine this would be as much obliged to determine by your part of the subject more fully before they delaws as if you had instituted the courts yourselves. cide it. If, then, the State courts have the power, your Mr. BURKE declared it to be a singular innovasystein 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 put in a worse situation than they were under pain, when one of those cases may happen; but I the former Government. He said when their believe the time is not yet arrived, and we ought State district courts would be sitting, the Federal not to adopt a system which presupposes it. courts would be engaged at the same time, and

I know it is of great importance to have the de- he asked whether the people could ever consider cisions of the courts conformable; and I believe such an accumulation of courts of justice calcualso it is of no inconsiderable importance to the lated to promote their interests? It would harass Government, to have it operate as well on indi- them with extreme duty, as witnesses, jurors, &c. viduals as on States. It would be, if liked by and leave them at the mercy of the judges as to the people, one of the strongest chains by which fines, when they should be engaged at another the Union is bound; one of the strongest cements court. With respect to the time of the court sitfor making this Constitution firm and compact. ting, it might be made at a most inconvenient But I would not have the measure adopted at a time of the year, and the place might be at the time, and on a principle, which must have a di- most distant part of the State, where a man might rect contrary tendency. If we establish Federal be dragged three or four hundred miles from his courts, on the principle that the State courts are home, and tried by men who know nothing of not able or willing to do their duty, we establish him, or he of them; he was sure, under such cirrivals. But if we honestly conduct upon the cumstances, the freemen of America could never principle of the Constitution—necessity, we may submit to it. expect some good to result from the exercise of Mr. Madison said that all these points might our powers, and prevent any clashing of jurisdic- be secured in the bill, when they came to the part tion, but to act on other principles must intro- that related thereto. duce confusion. Every body knows with what Mr. LAWRENCE expressed himself against the phlegmatic and cool determination, with what motion for striking out, because he conceived that disregard of surrounding objects, courts maintain it was essential to carry, this part of the Constitutheir separate jurisdictions. If we search the tion into effect, and that the courts had better be history of courts with which we are well ac-established now than hereafter. quainted, 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 it ought to be commensurate with the other citizen and the community have a remedy. I branches of the Government. Under the late fancy it is not so in this; I believe, instead of be- confederation, it could scarcely be said that there ing found what the gentleman from South Caro- was any real Legislative power—there was no lina has termed them, planets rolling in their or- Executive branch, and the Judicial was so conbits, on the immutable principles of order, so as fined as to be of little consequence; in the new not to interfere with each other, they will be felt Constitution a regular system is provided; the Lein concussion, and their violence will violate the gislative power is made effective for its objects; harmony with which gentlemen please their im- the Executive is co-extensive with the Legislaagination. The clew of separate jurisdiction tive, and it is equally proper that this should be will twine into such a state of perplexity, as to the case with the Judiciary. If the latter be conrender it impossible for human wisdom to disen-current with the State jurisdictions, it does not tangle it without injury.

follow that it will for that reason be impracticaThe gentlemen have mentioned jails and dif- ble. It is admitted that a concurrence exists in ferent processes; they might have traced it down some cases between the Legislative authorities of to an execution, and shown us what might have the Federal and State Governments; and it may been the consequence. Suppose an alien has a be safely affirmed that there is more, both of novright to a man's property, and a citizen the same, elty and difficulty in that arrangement, than there they lay their executions at the same time, the will be in the other. 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 whó hastion. It may be remarked, that, in another point

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H. OF R.]


[AUGUST, 1789. of view, it would violate the Constimation by here? I am of opinion it is evident it does not usurping a prerogative of the Supreme Executive Under the old form of Government, Congress had of the United States. It would be making appoint- no compelling Judiciary; no power of reversing ments which are expressly vested in that depart-the decrees of the State Judges; but it is conment, not indeed by nomination, but by descrip-tended that they have, or ought to have more untion, which would amount to the same thing.

der the present system. It is allowed, sir, that But laying these difficulties aside, a review of Congress shall have the power, in its fullest er. the 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: Thai aurassments which characterized our former situa-thority will tell them, thus far ye shall go, and no tion. In Connecticut the Judges are appointed further: and will bring them back when they exannually by the Legislature, and the Legislature ceed their bounds, to the principles of their instiis itself 'the last resort in civil cases.

tution. In Rhode Island, which we hope soon to see

Another gentleman from Massachusetts (Mr. united with the other States, the case is at least Ames) has advanced a position I cannot agree as bad. In Georgia, even under their former con- with. He has said, that the State courts will not stitution, the Judges are triennially appointed, and nor cannot, take cognizance of the laws of the in a manner by no means unexceptionable. In Union, as it would be taking up matters out of the Pennsylvania they hold their places for seven bounds of their jurisdiction, and interfering with years only. Their tenures leave a dependence, what was not left to them. Sir, I answer that particularly for the last year or two of the term, gentleman with the words of the Constitution : which forbid a reliance on Judges who feel it. This Constitution, and the laws of the United With respect to their salaries, there are few States, States made in pursuance thereof, and all treaties if any, in which the Judges stand on independent &c., shall be the supreme law of the land." This ground. On the whole, he said, he did

not see how surpasses in power any State laws; the Judges it could be made compatible with the Constitution, are bound to notice them as the supreme law, and or safe to the Federal interests, to make a transfer I call upon the gentleman to know, as a profesof the Federal jurisdiction to the State courts, as sional man, if a criminal was tried for a capital contended for by the gentlemen who oppose the offence under a State law, and could justify himclause in question.

self under the laws of the Union, if the State Mr. Burke said he had turned himself about to Judges could condemn him? Sir, they would find some way to extricate himself from this forfeit their oaths if he was not acquitted; this, measure; but which ever way he turned, the however, he has admitted in his argument in some Constitution still stared him in the face, and he measure. If there was no jurisdiction, neither confessed he saw no way to avoid the evil. He could they notice the law. I acknowledge that made this candid confession to let them know the gentleman has used many specious arguments, why he should be a silent spectator of the pro- but as they rest chiefly

on this ground. I think gress of the bill; and he had not the most distant they are done away. hope that the opposition would succeed. If any

The gentleman from Virginia (Mr. Madisos) substitute could be devised that was not contrary has advanced, that, by leaving this power in the to the Constitution, it should have his support

, hands of the State Judiciaries, or by joining their but he absolutely despaired of finding any. He concurrent authority, you establish them as infewas, however, satisfied that the people would feel rior jurisdictions. If the gentleman will turn to its inconvenience, and express their dislike to a the eleventh and twenty-fifth sections, he will fad Judicial system which rendered them insecure in those positions established, and what fell from the their liberties and property; a system that must gentleman from Massachusetts concerning juris be regarded with jealousy and distrust.

diction is likewise answered. Mr. Jackson.-Sir, the importance of the ques- by the former, are acknowledged to have concilio tion induces me to trouble the committee so far as rent jurisdiction in a large extent, where the to answer one of the arguments made use of in United States and an alien are the party, or be the opposition, and which I think necessary, to do tween citizens of one State and those of another. away the impressions they have made, should be And if the jurisdiction is acknowledged in some answered. The gentleman from Massachusetts points, it must be supposed to be so in the fullest (Mr. Sedgwick) has carried the nation to the extent. By the twenty-fifth, sir, they are again highest pinnacle of glory, and in a moment hurled fully established ; and therefore they are now, bor it down to the lowest piich; and has laid the loss the present system, in every light as fully, agres of national faith, credit, and honor, to the want of ably to the gentleman's argument, interior juros an energetic Judiciary. Every good citizen will, dictions, as they possibly could be by the price with him, deplore the abject state we have been ples of the gentleman from New Hampshire. And brought to; but, sir, does this argument hold good here, sir, I will advert to the general arguments,

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The State courts


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AUGUST, 1789.)


[H. OFR.

used by the gentlemen in opposition, of the neces-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 be ject 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 adıniralty 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 the other side ? And will the mere alteration of Court of the United States." Sir, in my opinion, the court from a district, to a court of admiralty and I am convinced experience will prove it, and piracy, remedy this evil ? But these objecthere will not, neither can there be any suit or ac- tions come too late, a National Government is tion brought in any State courts, but may, under established. The Judicial power is a component this clause, be reversed or affirmed by being part of this Government, and must be commensubrought within the cognizance of the Supreme rate to it. If we have a Government pervading Court. But should there be some exceptions for the Union, we must have a Judicial power of simithe present, yet, sir, the precedent is so forcible, lar magnitude; we must establish couris in differfor it goes so far as even to admit of constructions ent parts of the Union. The only question is, on some of the articles, that by some means or which is the plan best calculated to answer the other those articles will in time be totally lost. great object we all have in view, the carrying the Sir, let us look at the Court of Exchequer in Judicial powers into operation with the least inEngland: revenue trials at first engrossed its convenience to the citizens. This double system whole attention ; from a series of fiction there is of jurisprudence is unavoidable; it is as much a now no personal action but from construction part of the Constitution as the double system of may be brought within their cognizance. It is legislation ; each State has a Legislative power, only a suggestion, and very seldom true, that a both operating on the same persons, and in many plaintiff is a king's debtor, and that the action is cases on the same objects; it is infinitely more well grounded : yet there they have counter difficult to mark with precision the limits of the checks, and another resort; here the Supreme Legislative than the Judicial power; no one, howCourt 'is final. Sir, the gentleman from South ever, disputed the propriety of vesting Congress Carolina (Mr. BURKE) was right in declaring a with a Legislative power over the Union, and yet resident on Lake Erie might be dragged to New that power is perhaps more liable to abuse than York for trial, or one on the Oconee to Savannah. the Judicial. It has, indeed, been contended, in Nay, sir, I know not how far in time a man might some of the State conventions, that Congress not be dragged; perhaps from the Oconee to be ought not to be entrusted with direct taxation ; tried in North Carolina ; for one part of the bill, and it is remarkable that the same obstacles were without specifying the spot, declares, that the urged against that power which is now suggested Circuit courts shall have power to hold special against this institution. It was then said that sessions for the trial of criminal causes at their Federal and State taxes could not operate at the discretion. On these considerations, I hope the same time without confusion; it was then faceHouse will not adopt the present system, until tiously asked, whether the Congressional and the milder one is tried. It is calculated to foment State collector, who had seized a horse for the and harass the people, without answering any payment of taxes, were to divide him between essential purpose.

ihem ; it is now asked, with equal pleasantry, Mr. Sherman said, it was admitted, on all hands, whether the marshal of the district, and the sheriff that a Judiciary system was necessary even upon of the State court, who have taken the same

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