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H. OF R.)

Judiciary.

[August, 1989.

debtor in execution, are to cut him in halves ? It growing out of this plan of jurisdiction; a canwas then answered, that if the State collector did discussion will remove and obviate them. It seized the horse first, he will have the first satis- has been said that the bill provides a number of faction; it was also shown that there are frequent-appeals from the State to the Supreme Court, ly in the same State, State taxes, county taxes, through the District and Circuit courts, and thai and corporation taxes, and that these never occa- the suitors may be persecuted with appeals

, carsioned any clashing or confusion; it may now be ried on from one court to another, through four answered, that there are at present, in some of the different courts. An attentive examination of States, State courts, county courts, and corpora- the bill is a sufficient answer to this objection. tion courts; and that these are found convenient, There is no appeal from the State to the Distriet and unaccompanied with the clashing so much courts; and only a power of removal in certain apprehended. They keep within their particular | cases of a Federal jurisdiction from the State to spheres, and have their limits ascertained. But the Circuit court; neither is there any appeal in answer to one supposition, allow me to state of fact from the District to the Circuit court

, another; suppose a State sheriff and a county and only a power of removal in certain cases of sheriff should seize the same debtor, would he be a Federal jurisdiction from the State to the Cirparcelled out between them? Would not the cuit court; neither is there any appeal of faet execution that was first served take effect? Is not from the District to the Circuit courts

, but in this the practice at present, and will it not be so admiralty cases; and these cannot be afterwards under this system ? ' It is very easy for gentle carried up to the Supreme Court, but when the men, in the warmth of their imaginations, to sup-value exceeds two thousand dollars. pose a variety of cases, and raise a multiplicity of It has been said, that, under the idea of vieiobjections against any system of jurisprudence nage, a man may be dragged far from his friends whatever. They will all be more or less liable to to trial, from Georgia to North Carolina ; but it some objections on the score of inconvenience, must be remembered that there is a Constitutional but they are submitted to by good citizens, who provision that the criminal shall be tried in the are sensible that they are the surest means of State where the offence is committed, and the protecting their property, reputations, and lives. bill is conformable to the Constitution in this After all that has been said, it does not appear that respect

. It has been observed that the Constita we differ so widely as was at first imagined; for tion is no bar to vesting the State courts with the gentlemen who advocate the motion, concede Federal powers, for the words, á such inferior the necessity of some inferior Federal court in courts as Congress shall

, from time to time, estáeach State. What then do gentlemen object to ? blish,” imply that Congress may not institute If it is the name of the court, that may be altered; them; and if they are not instituted, these povif it is the frequency of holding them, it will be ers must of course remain with the State courts

. very easy to amend the clause in that respect ; but In reply to this argument, it is to be observed, they move to strike out the clause altogether, that the words,“ such inferior courts," &c. apply when it is granted on all hands that there must be to the number and quality of the inferior Federal • such a court. The objection to the extent of ju- courts

, and not to the possibility of excluding risdiction is premature, and ought to be reserved them altogether; it is a latitude of expression

for the clause which ascertains the jurisdiction; empowering Congress to institute such a number if, upon an investigation of that

clause, it should of inferior courts, of such particular construction, appear that it ought to be restricted, that would and at such particular places, as shall be found be the seasonable time for moving to strike out expedient; in short, in the words of the Constithe exceptionable part; but really at present gen- tution, Congress may establish such inferior tlemen are making objections to one clause which, courts as may appear requisite. But that Confrom their own concessions, apply altogether to gress must establish some inferior courts is be another. As to several other

observations that yond a doubt ; in the first place, the Constitution relate to the time of holding the courts, and the declares that 'the Judicial power of the United mode of drawing jurors, it is unnecessary to reply States

shall be vested in a Supreme and in infer fully to them at present, because

it would be im- rior courts. The words, “ shall be vested," bare proper to run into a discussion of the detail, while great energy; they are words of command; the the question is on the principle of the system. He leave no discretion to Congress to parcel out the was no less opposed to the time of holding the Judicial powers of the Union to State judicatures courts, and the mode of drawing jurors, provided where a discretionary power is left to Congres by the bill, than the gentleman was from whom by the Constitution; the word “may” is en the objection came, and would add his endeavors ployed where a discretion is left; the word "shall

* with his to effect an alteration in these points ; but is the appropriate term; this distinction is call principle, whether there shall be a District court: (two cases only, has original jurisdiction ; in all the

same answer will apply to the objection that others it has appellate jurisdiction ; ut where is the juries and witnesses will be unnecessarily the appeal to come from? Certainly not from harassed; every care will be taken to accommo- the State courts ; it must come from a Federi date these courts to the convenience of the citizens tribunal. There is another argument that are of each State.

pears conclusive; the Constitution provides that Several other difficulties have been urged, as I the Judges of the Supreme and inferior courts

August, 1789.]
Judiciary.

[H. OF R. shall hold their commissions during good beha- further; he thought gentlemen ought not to be viour, and shall receive salaries not capable of tired out like a jury. diminution; and it further provides, that the Judi Mr. BURKE said, he was not tired with the discial power of the Union shall be vested in a cussion, but was satisfied that the opposition must Supreme and inferior courts; that is, in supreme be unsuccessful. and inferior courts whose Judges shall receive The committee now rose and reported protheir commissions during good behaviour, and gress.-Adjourned. possess salaries not liable to diminution. Does not, then, the Constitution, in the plainest

MONDAY, August 31. and most unequivocal language, preclude us from allotting any part of the Judicial authority of the regulate the collection of the duties imposed by

The engrossed bill to suspend part of an act to Union to the State judicature? The bill

, it is law on the tonnage of ships or vessels, on goods, said, is then unconstitutional, for it recognises the authority of the Federal court to overturn the States, was read a third time, and, on motion, or

wares, and merchandises imported into the United decisions of the State courts, when those deci- dered to be committed to Messrs. Ĝoodhue, Carsions are repugnant to the laws or Constitution of ROLL, LEB, and BLAND, with instruction to the the United States. This is no recognition of any said committee to insert a clause or clauses for such authority; it is a necessary, provision to establishing Bath and Frenchman's Bay, in the guard the rights of the Union against the inva- State of Massachusetts, ports of delivery for all sion of the States. If a State court should usurp foreign vessels. the jurisdiction of Federal causes, and by its adjudications attempt to strip the Federal Gov

THE JUDICIARY. ernment of its Constitutional rights, it is neces The House then went again into a Committee sary that the National tribunal shall possess the of the Whole on the bill for establishing the Jupower of protecting those rights from such inva-dicial Courts of the United States; Mr. BOUDINOT sion. The committee have been told that this in the Chair. multiplicity of courts, and of appeals, will dis The question being still on striking out the tress the citizens; and the number of appeals in third clauseGreat Britain has been alluded to. He had al- Mr. LIVERMORE thought this law would enways heard, he said, that there was no country in tirely change the form of Government of the the world where justice was better administered United States. than in that country; to its excellent and impar Several observations have been made on this tial administration, the property, freedom, and clause; it is said to be the axis on which the civil rights of its citizens have been attributed. whole turns; some of the objections he had Were appeals too much restrained in this coun-thrown out have been attempted to be answered ; try, he questioned much whether a great clamor among others, the great expense. By expense he would not be raised against such a restriction. did not mean the salaries of Judges; this would, The citizens of a free country, when they lose however, be greater than the whole expense of their cause in one court, like to try their chance the Judiciary throughout the United States; but in another. This is a privilege they consider he referred to the general expenses which must themselves justly entitled to; and if a litigious be borne by the people at large for jails, courtman harass his adversary by vexatious appeals, houses, &c.; borne without repining, as the people he is sufficiently punished by having the costs to receive compensation in personal security and pay. By limiting appeals to the Supreme Court public justice; but if all these were doubled to sums above one thousand dollars, as is pro- throughout, it would be justly considered as inposed, the poor will be protected from being tolerable. Another burden, he said, was the raharassed by appeals to the Supreme Court. pidity of the course of prosecution in these courts,

There was one more observation that required by which debtors would be obliged very suddenly an answer; it was said that the juries shall be so to pay their debts at a great disadvantage. Somedrawn as to occasion the smallest inconvenience thing like this occasioned the insurrection in the to the citizens. After having very maturely con- Commonwealth of Massachusetts. In other States, sidered the subject, and attentively examined the similar modes of rapidity in the collection of debts bill in all its modifications, and heard all that had have produced conventions. This had been the been alleged on this occasion, he was perfectly case to the northward, and, he had been informed, convinced, that whatever defects might be disco- bad been the same to the southward. vered in other parts of the bill, the adoption of

This new fangled system would eventually this motion would tend to the rejection of every swallow up the State courts

, as those who were system of national jurisprudence.

in favor of this rapid mode of receiving debts, Mr. Madison said, that he was inclined to the clashing circumstances that must arise in the

would have recourse to them. He then adverted to amend every part of the bill, so as to remove gen- administration of justice, by these independent tlemen's jealousy, provided it could be done con- courts having similar powers. Gentlemen, said sistently with the Constitution.

he, may be very facetious respecting dividing the * Mr. GERRY was sorry to hear the honorable body; but these are serious difficulties; the ingentleman from South Carolina (Mr. Burke) re-stances mentioned by the gentleman from South nounce his intention of opposing the system any | Carolina do not apply, the officer here is the same

1st CoN.—97

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Judiciary.

[AUGUST, 1789. the same sheriff has the precepts committed to justice) transferring the business from one tribuhim; and the execution does not clash; the same nal to another. jail answers for both.

The gentleman has told us that the people do He did not think that the difficulties had been not like courts; that they have been opposed and answered by any of the examples brought for the prevented by violence; nay, by an insurrection purpose.

in Massachusetts. Surely this operates as a powAs to the instance of the trial for piracy in the erful reason to prove that there should be a geneState of South Carolina, that was a particular ral, independent, and energetic jurisdiction; othercase, that could not be otherwise provided for; wise, if either of the State Judges should be so but these so rarely happen, that no precedent inclined, or a few sons of faction so assembled, could be drawn from them to render it necessary they could ever frustrate the objects of justice; to establish these perpetual courts.

and, besides, from the different periods fixed by He then referred to the clause, and offered a the Constitution of the United States, and the substitute, and said he thought, upon the whole, different constitutions of the several States, with that the suggestion thrown out by an honorable respect to the continuance of the Judges in office, gentleman from South Carolina (Mr.BURKE) that it is equally impossible and inconsistent to make there should be no district courts, is better than a general, uniform establishment, so as to accomany substitute.

modate them to your government. It may be proper here to refer to the Constitu

He wished, he said, to see justice so equally tion ; he then read the clause upon the subject. distributed, as that every citizen of the United The Federal court is to have original jurisdiction States should be fairly dealt by, and so imparonly in certain specified cases; in all other it is to tially administered, that every subject or citizen have only appellate jurisdiction; it is argued from of the world, whether foreigner or alien, friend or this, that there are to be inferior Federal courts, foe, should be alike satisfied; by this means, the from which these appeals are to be made. If the doors of justice would be thrown wide open, emiConstitution had taken from State courts all cog.gration would be encouraged from all countries nizance of Federal causes, something might be into your own, and, in short, the United States of said; but this is not the case. The State courts America would be made not only an asylum of are allowed jurisdiction in these cases.

liberty, but a sanctuary of justice. The faith of It has been objected that bonds taken by the treaties would be preserved in violate; our extenJudges of the Supreme Court cannot be sued in sive funded system would have its intended opethe State courts. He did not see why this could ration; our navigation, impost, and revenue laws not be done; similar processes have been usual would be executed so as to insure their many adamong us in times past, and there has been no vantages, whilst the combined effect would estabdifficulty. Admiralty courts should have cognizance of all Mr. Stone.--I am mistaken if the whole sub

lish the public and private credit of the Union. maritime matters, and cases of seizures should also be committed to their decision. He hoped, I think it ought to be thoroughly investigated be

ject has yet come before us in its full extent, and therefore, that the clause would be disagreed to fore it is decided upon. or struck out, and that the bill might be rejected, that a short concise system might be adopted.

I declare myself, Mr. Chairman, much pleased Mr. Vining said he conceived that the institu- with the discussion, and am gratified with the tion of general and independent tribunals were different points of view in which it has been essential to the fair and impartial administration placed; but I conceive there is a variety of conof the laws of the United States. That the power siderations arising out of the subject which have of making laws, of executing them, and a judicial not yet been touched upon. I have seriously readministration of such laws, is in its nature in- flected, sir, on the subject, and have endeavored separable and indivisible, if not, "justice might to give the arguments all the weight they deserve. be said to be lame as well as blind among us." I think, before we enter into a view of the conThe only plausible argument which has been venience of the system, it will be right to consider urged against this clause is the expense. It is the Constitutional ground on which we stand. true that expense must in some degree be neces Gentlemen, in their arguments, have expressly sarily incurred, but it will chiefly consist with the or impliedly declared that the Constitution, is organization of your courts, and the erection of this respect, is imperative—that it commands the such buildings as may be essential, such as court- organization of inferior courts. If this doctrine houses, jails, and offices, as the gentleman has is true, let us see where it will carry us. It is mentioned; and what, at all events, do such ex-conceded on all hands that the establishment of penses amount to? They are the price that is these courts is immutable. If the command of paid for the fair and equal administration of your the Constitution is imperative, we must carry it laws; from your amazing increasing system of through all its branches; but if it is not true, we government, causes must necessarily

multiply in may model it so as to suit the convenience of the à proportionably extensive ratio; these causes present time. It appears from the words of the must be tried somewhere, and whether it is in a Constitution, that Congress may, from time to State court, or Federal judicature, can, in the ar- time, ordain and establish inferior courts, such as ticle of expense, make but little difference to the they think proper. Now, if this is a command parties; it is only (for the sake of more impartial l for us to establish inferior courts, if we cannot

AUGUST, 1789.]
Judiciary.

[H. OF R. model or restrain their jurisdictions, the words an inferior court-from the District Court it is which give us the power from time to time so to carried to the Circuit Court, and may be brought do, are vain and nugatory. Do the words “from up into the Supreme Court. This power, I say, time to time" leave any thing to our discretion ? we have by the Constitution; would it be proper Or must we establish in our own minds a given to exercise it? But these circumstances would length of time to gratify its meaning? Are we certainly follow from a construction that the to compare it with the case of a census, and con- Constitution was imperative, and that you must fine it to a subsequent term of ten years? If you establish inferior tribunals on the terms of the establish inferior courts upon this principle, you Constitution. have expended your whole power upon the sub I understood it to be said by the gentleman from ject for that length of time, and cannot interfere New York, and decided, that the establishment of until the term arrives which you have fixed in inferior courts would draw the whole Judiciary your own mind for the power to return. But the power along with them. If the clause in the Conwords "ordain and establish" will not only go to the stitution commands that inferior courts be estabappointment of Judges of inferior courts, but they lished, what are their powers? They will claim comprehend every thing which relates.to them; we all the jurisdiction to which it is declared the Juhave good authority for this opinion, because one dicial power shall extend—it is the right the Conbranch of the Legislature has expressly laid it stitution has given them after you have establishdown in the bill before us; they have modified ed the courts; any modification, therefore, or the tribunal; they have restrained its jurisdic- restriction of their power, would be a nullity; tion; they have directed appeals only to be had hence it appears to me, if the gentleman's

princiin certain cases; they have connected the State ple is right, that part of your bill which restricts courts with the district courts in some cases; this their cognizance to a particular sum is a nullity. shows that, in their opinion, the articles of the I apprehend that the gentlemen who support Constitution gave them a latitude. It is not said this bill have differed widely from the body that in that instrument that you shall exercise the ju- passed it, in supposing two things; first, that dicial power over all those cases, but that the whatever Continental jurisdictionis exercised, judicial power shall extend to those cases. If it that it follows they are Continental courts, and had been the idea of the convention that its Judi- must have Continental salaries, and hold their ciary should extend so as positively to have taken offices during good behaviour; if this is the case, in all these cases, they would have so declared it, the Senate have done one of two things, they and been explicit ; but they have given you a have either relinquished all the penalties due to power to extend your jurisdiction to them, but Government for a non-compliance of the laws have not compelled you to that extension. Seve- under one hundred dollars, by the 9th section of ral gentlemen have mistaken this idea, and that the bill; or they have established the doctrine on very different ground. The gentleman from which gentlemen on this side contend for. By Virginia has compared the exercise of the Judi- this section they have given to the State courts ciary to that of the Executive and Legislative jurisdiction in cases of an inferior magnitude; powers, and seems from his arguments to infer now the very moment any suit is brought by the that if you do not extend the Judiciary power, so United States, under one hundred dollars, before as to take in all those cases which are specified a State court, such court becomes a Continental in the Constitution, that you will leave the Judi- court. I say they must run into this absurdity, or ciary defective.

relinquish all suits under one hundred dollars. The gentleman from New York seems to think But if this is not the case; if they do not relinit will be an abandonment of our Judicial power quish this sum, (and the Senate did not suppose altogether. To what does the Legislative power this was ever to be given up.) they did what of this Government extend? To a variety of appears, upon the gentleman's principles, very cases which are not yet put in action; for in- strange indeed: they leave Continental courts to stance, the Legislative power extends to excises be established by their bringing suits, or foreignand direct taxes. If you conceive the Judiciary ers bringing suits into the State courts; and in this incomplete, because you have not strained it to way they divest the President of his power of its utmost extension, cannot you see, from the appointing judges of inferior courts. This appears same principle, that the Legislative power is not to my mind a strange mode of reasoning. complete unless you extend it as far as you have A gentleman has said that it would be impracthe power? Do you divest yourself of the power ticable to admit the judges of the several States by not exercising it? Certainly not. Suppose to take cognizance of the laws of the United you were to lay as heavy a land tax as the people States, because they are laws de novo: this I think could bear, (and this is in our power by the terms is the idea. I apprehend that judges, when they of the Constitution,) and suppose the people were have undertaken their duty, must be considered to ask you why you had done so, when there was in two respects—as citizens and as judges. Now no absolute necessity for it, would you answer as men, they are to submit to the modification of that the Constitution has given us the power, the Constitution as it respects them as citizers; therefore we must exercise it? Certainly not. and as judges, they are to consider their relation The Constitution has given us power to admit as such to the Constitution, and are to administer that a suit in certain cases shall be brought for justice agreeably to that Constitution; as judges six-pence; this we may authorize to be done in they may divest themselves of this relation; they

H. of R.]

Judiciary.

[AUGUST, 1789. may resign, but if they continue to act as judges, pose, when he contracted his debt, that he might they are enjoined to obey the Constitution of the bring his suit in a State court; if you exclude United States, and laws established under it: now him from this privilege, you destroy the right he judges know that it is in the power of the United had; a right, notwithstanding all that may be States to change the State Constitutions, and they affirmed of the wisdom, honesty, and expedition must conform in every respect. A judge binds of the courts of the United States

, yet to him it himself not only to act upon the laws which have may appear ten to one better to be secured in his already passed, but to obey all that may hereafter rights in State courts. I think the inconvenience pass. "If it is admitted that the judges cannot which will attend these courts has been fully extake cognizance of the laws de novo, you annihi- plaired; but certainly it has not been fully conlate the judicial capacity at a blow; they cannot | sidered how far the inconveniences heretofore susnotice the adoption of the Federal Constituțion tained may be compared to the inconveniences or any law passed after appointment. I can which may hereafter happen; perhaps there are hardly bring myself seriously to consider the sub- no instances in point. Gentlemen are mistaken, ject in this reverse point of view. Gentlemen who suppose that because there are many tribuwill be convinced, I hope, that I take all the pains pals in the State they are necessarily exposed to I possibly can to understand and discuss the argu- the same difficulties as will arise from the estabments made use of; they will admit that if my lishment of Federal and Siate courts. I will principles are right, Congress may establish the state a case: A man is taken in Maryland by a courts on what terms they may think proper. writ from the county court, to which he gives

It will perhaps be well to consider what the bail. If he is taken by writ from the general State courts can do, and consider what they are court, he must also give bail, or go to prison. But not competent to, and the reason we should not if he is unable on the first writ to give bail and trust them. It appears to me that there is nothing goes to prison, then the sheriff returns to the Gene but what the State courts are competent to but ral Court that he has taken him, and he is in jail. certain cases which are specially designated; in This is a good return, as well in civil as in crimicases where a State is a party they ought not to nal process; as well upon mesne process as in decide, because they could not execute their judg- executions; and if either of the courts required ment; they would be competent to all admiralty his appearance in court, an habeas corpus may be cases, but for the fact I mentioned before, that granted; by which he will be brought into court, admiralty courts are not established in all the and remanded, if proper. Here is no danger of States. I take it to be true that all the judicial defeating rights, nor acquiring inconvenience, be powers not taken away by the Constitution from cause the same jail will be made use of, and the the States, remain to them, and I take them to be same sheriff will hold, and always be liable for his * complete Republics, to have sovereign power, prisoner. As the courts are connected, they will conformable to their nature; therefore, if the Con- ex officio take notice of, and admit the proceedstitution of the United States had not interfered ings of, each other. in the subject, even of treason against the Union, But in different tribunals, not connected, misthe States, I apprehend, except in a few instances, chiefs may happen. Will a sheriff be justifiable could not have taken notice of it, because I do not in delivering up his prisoner to the marshal, or know any kind of treason against the United States will it be a proper return by the marshal that the but is also treason against a particular State. prisoner is kept by the State sheriff. If the first If a man raises an army in the body of a State, position is true, you ought to show that the marunauthorized by the State, is it not rebellion shal is liable to the State creditor for an escape, against the State? Suppose it to be done in this and you ought also to show that the marshal will State, and they tell you it is not the State of New return his prisoner to the State jail. If the seYork they mean to oppose, it is the General Gov- cond, you ought to show that the sheriff is justiernment, pray is not this treason against the State fiable in detaining a man after the cause for which of New York as a member of the Union ? Is not be was committed to his custody ceased. An exa piracy committed against the United States ecution against the property depends upon the same committed against a particular State? If it had principles; because the priority avoids all diffiits sovereign authority unimpaired, would any culty. If all the property is taken by the prior gentlemen contend that they had not power to try execution. the return of that fact is a proper refor piracy? I apprehend they wouid not. If a turn. But property is bound by the time of judgbond is given to the United States, or a penalty mentin some cases, and the time of execution is put accrues under the supreme law of the land, or if into the sheriff's hands in others. Now there is no a debt is due to a foreigner, may it not be sued in difference where the same sheriff receives all. any part of the Union ? I believe there is little But suppose there is a different time of rendering doubt but this might be properly done—the Sen- judgment, and of receiving execution, and both ate, by this bill, have given us this construction: Mare levied at the same time either upon body or foreigners may sue and be sued in all the States. goods. The rules of the courts are different; This has already been done; do gentlemen now there will be different determinations in each, and contend, that these suits shall be exclusively in perhaps each justifying their own affirmation. the Continental courts? If they do, it would be Even they may clash as to a matter of right. an infringement of the private contracts, it would Suppose goods are stolen, and a prosecution is set be an ex post facto law. The citizen might sup-on foot in the Federal court as of goods belonging

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