AUGUST, 1789.]

Judciary.

[H. OF R.

propose? Do they believe that these disadvantages can be remedied by Congress? I think they cannot; they result from the Constitution itself, and therefore must be borne until the Constitution is altered, or until the several States shall modify their courts of judicature so as to comport with our system.

to the United States, and at the same time an indictment is laid in the State court, for stealing goods, as for the goods of A: there is a conviction in each; the goods are to be returned to the owner. Now the courts in their several capacities justify their officers; and they proceed severally to seize goods or body; and failing in strength, the posse comitatus is raised on both sides; mur- Gentlemen have said, that the Federal Judiciader may be the consequence; and if it should, ry will be disagreeable to the citizens of the Unieach court justifying the act of its officers, and ted States. These it should be recollected were condemning the others, all the officers in the dif- divided into two classes; the one was for an unferent courts must be hanged for acting legally. conditional ratification of the present ConstituThese are the inconveniences which result from tion; the other was against such a measure. a system of this kind, and why are these incon- There appeared to be a majority of the first deveniences to be encountered? Is it because such scription, and we must suppose they understood a system will be popular? I cannot conceive it what would be the operation of the system of warrantable upon this ground; it seems to me to Government they adopted with such avidity; if be laid upon a principle directly opposite to that they did not, they entrusted the decisions to conof being agreeable to the people. Will it be agree-ventions of men whom they suppose did. We able to the Judges? That cannot be, because it must admit that they knew their business, and is intended to correct the vices of the State Judi- saw it would be for the benefit of their constituciaries. Will it be considered as necessary by the ents, or we must suppose they were weak or wickState Legislature? Gentlemen have agreed that ed men to adopt a Constitution without underit will not be agreeable to the State Legislatures, standing it; this last supposition being inadmissiand we find in general, the sentiments of the peo- ble, I take it, then, their observations only refer ple expressed by the Legislatures; from these to that part of our fellow-citizens who were circumstances, I conceive that this system can- against the unconditional ratification. Now I benot, in its nature, be agreeable to the State Gov- lieve with them, that this part of the community, ernments, or to the people. I do not think this, at least, will be uneasy under the operation of then, the proper time to establish these courts; it such a Judicial system. But how can it be remeis a measure on which the affection and attach- died? The motion of the honorable gentleman ment of the people to the Constitution will be from New Hampshire extends to prevent the esrisked; it is best to defer the business till the ne- tablishment of inferior tribunals, except for the cessity of these courts shall become apparent. I trial of admiralty causes; what, then, is to be could therefore wish, that the power should be done with all the other cases of which the Sureserved for the occasion, and that nothing should preme Court has only appellate jurisdiction? You be done the present session but what is absolutely cannot make Federal courts of the State courts, necessary, less by extending these matters too far, because the Constitution is an insuperable bar; we should give the people a disposition to curtail besides, the laws and constitutions of some States our authority; they might then not confine them- expressly prohibit the State Judges from adminselues to an alteration in the Judicial department istering or taking cognizance of foreign matters. alone, they might extend it so far as to injure the New Hampshire requires all her civil officers to Executive and Legislative, if not to the total be appointed by the Legislature, and for what change or destruction of the whole system of Go- length of time they shall determine; now this is vernment. I am, sir, for this Government moving contrary to the indispensable tenure required by as silently as death, that the people should not per- the Constitution of the United States. All Judiceive the least alteration for the worse in their cial officers in Massachusetts must be appointed situation; the exercise of this power will certain- by the Governor, with the advice of council, and ly be the most odious that can be exercised, for may be removed by the same power, upon the admankind do not generally view courts of justice dress of both Houses of the Legislature. There with a favorable eye, they are intended to correct is another provision in the same Constitution, inthe voices of the community, and consequently compatible with the terms of the Judicial capaciare disagreeable to human nature. It was well ty under Congress. "All writs issuing out of the observed, and I concur in the opinion, that of all clerk's office, in any of the courts of law, shall be the wheels in Government, the Judicial is the in the name of the Commonwealth of Massachumost disagreeable. setts," &c. The Constitution of Maryland establishes their Judges on the tenure of good behaviour; but they may be removed for misbehaviour, on conviction in a court of law. The Judges of the Federal court are to be removed only by impeachment and conviction before Congress. I suppose the same, or similar difficulties exist in every State, and therefore the State courts would be improper tribunals to administer the laws of the United States, while the present Constitution remains, or while they are not estab

Mr. GERRY.-The gentlemen who support the motion for striking out the clause, urge that this system will interfere with the State Judiciaries, that it will occasion a double set of officers, separate prisons and court-houses, and in general that the expenses will increase to a degree heretofore unknown, and consequently render the establishment obnoxious to the community. These objections are of such weight, as to have made deep impression on my mind. But what do gentlemen

lished by the individual States, upon the terms required in this Constitution.

[AUGUST, 1789.

Will gentlemen contend that it is for the convenience and security of the people that these inferior courts should be established? I believe this sentiment may be successfully controverted. The accurate Marquis Beccaria points out a danger which it behooves us to guard against. In every society, says he, there is an effort continually tending to confer on one part the height of

Judges would be partial, and that there were no means of dragging them to justice. Shall I peWe are to administer this Constitution, and remptorily tell the gentlemen who hold this opinion, therefore we are bound to establish these courts, that there is a Constitutional power in existence let what will be the consequence. Gentlemen to call them to account. Need I add that the Susay they are willing to establish Courts of Ad-preme Federal Court will have the right to annul miralty; but what is to become of the other cases these partial adjudications? Thus, then, all these to which the Continental jurisdiction is extended arguments fall to the ground, on the slightest by the Constitution? When we have established recollection. the courts as they propose, have fixed the salaries, and the Supreme Executive has appointed the Judges, they will be independent, and no power can remove them; they will be beyond the reach of the Executive or Legislative powers of this Government; they will be unassailable by the State Legislatures; nothing can affect them but the united voice of America, and that only by a change of Government. They will, in this ele-power and happiness, and to reduce the other to vated and independent situation, attend to their duty-their honor and every sacred tie oblige them. Will they not attend to the Constitution as well as your laws? The Constitution will undoubtedly be their first rule; and so far as your laws conform to that, they will attend to them, but no further. Would they then be confined by your laws within a less jurisdiction than they were authorized to take by the Constitution? You must admit them to be inferior courts; and the Constitution positively says, that the Judicial powers of the United States shall be so vested. They would then inquire what were the Judicial powers of the Union, and undertake the exercise thereof, notwithstanding any Legislative declaration to the contrary; consequently their system would be a nullity, at least, which attempted to restrict the jurisdiction of inferior courts.

It has been said, that much inconvenience will result from the clashing of jurisdiction. Perhaps this is but ideal; if, however, it should be found to be the case, the General Government must remove the obstacles. They are authorized to suppress any system injurious to the administration of this Constitution, by the clause granting to Congress the power of making all laws necessary and proper for carrying into execution the powers of the Constitution, or any department thereof. It is without a desire to increase the difficulties of the proposed arrangements, that I make these observations, for I am desirous of promoting the unity of the two Governments, and this, I apprehend, can be done only by drawing a line between the two Judicial powers.

the extreme of weakness and misery. The intent of good laws is to oppose this effort, and diffuse their influence universally and equally. But men generally abandon the care of their most important concerns, to the uncertain prudence and discretion of those whose interest it is to reject the best and wisest institutions; and it is not till they have been led into a thousand mistakes in matters the most essential to their lives and liberties, and are weary of suffering, that they can be induced to apply a remedy to the evils with which they are oppressed. It is then they begin to conceive and acknowledge the most palpable truths which, from their simplicity, commonly escape vulgar minds, incapable of analyzing objects, accustomed to receive impressions without distinction, and to be determined rather by the opinions of others than by the result of their own examination.

This celebrated writer pursues the principle still further, and confirms what we urge on our side against the unnecessary establishment of inferior courts. He asserts, with the great Montesquieu, that every punishment which does not arise from absolute necessity is tyrannical; a proposition which may be made more general thus, every act of authority of one man over another for which there is not an absolute necessity is tyrannical. It is upon this, then, that the Sovereign's right to punish crimes is founded; that is, upon the necessity of defending the public liberty entrusted to his care, from the usurpation of individuals; and punishments are just, in proportion as the liberty preserved by the Sovereign is sacred and valuable.

He now wished the House to consider whether there was a necessity for the present establishment; and if it should appear, as he thought had been plainly shown, that no such necessity existed, it would be a tyranny which the people of this country would never be content to bear.

Mr. JACKSON.-I would not rise again, but from the great anxiety I feel to have this business well understood and determined. I am not for doing away the whole of the Judiciary power, but so ameliorating it as to make it agreeable and consistent. My heart, sir, is federal; and I would do as much as any member on this floor, on any, and He had attended to the arguments of gentlemen on every occasion, to promote the interests and who insisted upon the necessity of such establishwelfare of the Union. But in the present impor- ments; but his mind was far from being satisfied tant question, I conceive the liberties of my fellow-that the necessity existed. In the Constitution it citizens too deeply involved to suffer me to risk such a precious stake, though to secure the efficiency of a National Government.

It has been said in this debate, that the State

is declared that the Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may, from time to time, ordain and establish. From hence

AUGUST, 1789.]

Judiciary.

[H. OF R.

he presumed that there was a Constitutional ne- Mr. LAWRENCE was willing to give the Consticessity for the establishment of a Supreme Court, tution all the effect it ought to have; but he but there was a discretionary power in Congress would not be willing to carry into operation any to establish, from time to time, inferior courts; part of it unnecessarily, especially if the inconvebut until they are appointed, it cannot be contend-niences and dangers so often repeated must be the ed that the State courts are deprived of taking consequence. He had endeavored to investigate cognizance of certain cases enumerated in the the subject, and satisfy his own mind, with respect Constitution. If Congress do not think there is to the propriety of the present measure; he found, a Constitutional necessity, they ought not to ap- by the Constitution, that there were several powpoint them, because they are burdensome and ers given to the Government, but vested in differdisagreeable to the people. ent branches. He presumed that they were for beneficial purposes, and ought to be exercised when an occasion presented. The Executive power had been exercised already as occasion required, the Legislative power had been extended in the same manner. We are now about to extend the powers of the Judiciary; and it has been asked, shall we employ this power in all the cases to which it extends, or shall we employ it to certain enumerated cases alone? He was of opinion that it ought to be employed so as to embrace all the cases which necessity required; it is admitted, on all hands, that necessity requires we should establish superior, and some kind of inferior courts. The only question that then remained, was to know how far this extended; it was not, therefore, a question on principle, but a question of expediency, and in this view he considered the bill to be proper.

He presumed that there was no greater Constitutional necessity under the present Constitution than there was under the late articles of Confederation. It is there declared, that Congress may, from time to time, institute inferior courts, for the trials of piracies and felonies committed on the high seas, and establish courts for receiving and determining finally in all cases of captures; yet these powers were carried into execution under the State Judiciaries. There is not a State but has exercised the Admiralty jurisdiction in its fullest extent: they have not determined inferior cases only, they have not been confined even to the condemnation of goods and vessels, but they have condemned and executed persons for piracy. If, then, they could do this, notwithstanding a solemn contract in the Confederation, why cannot it be done in the present case? We trust the State Judiciaries with jurisdiction in some cases, why cannot we trust them in all? Will gentlemen pretend to say that the check furnished by the Supreme Courts, to revise and correct their judgments on appeal, is not sufficient to secure the due administration of justice? They cannot pretend to make such an assertion on mature deliberation.

Mr. LIVERMORE.-It has been said that this Government cannot be carried into execution, unless we establish inferior courts, because the State Judges would not be bound to carry our laws into execution. I will just read a few words in the Constitution, in order to determine this point: in the sixth article it is said, that all Executive and Judicial officers, both of the United States, and the several States, shall be bound by oath or affirmation, to support this Constitution; and in the same article it is also declared, that this Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the Judges in every State shall be bound thereby, any thing in the constitution or the laws of any State to the contrary notwithstanding. He looked upon this to be a clear answer to all the objections drawn from that source. He would ask the gentleman whether the State courts were not adequate to decide all these questions from the time the Constitution was ratified till this day. He presumed they were, and might continue to exercise jurisdiction until Congress thought proper to establish such inferior courts as they were authorized to do, but which he did not think at this time to be

necessary.

Mr. GERRY thought the gentleman from New Hampshire extended the sixth article of the Constitution too far; for the State Judges would not be bound by any law altering the State constitution, unless such law was necessary to carry into operation the Constitution of the Union.

It

Mr. SUMTER could not reconcile it to himself to sit and give a silent vote on this important question; at the same time he was loth to take up the time of the committee when they were impatient to come to a decision. He did not rise, however, to object to the Legislature possessing the power of adopting the present system, because he thought the new Constitution warranted the exercise of it; but he questioned whether it was expedient at the present moment. He knew too sensibly the situation of his constituents, to suppose that such an expensive and distrustful system could be agreeable to them. It would be cruel in their present distressed situation, to encumber them with a branch of Government, which could be as well, and perhaps better, done without. was hostile to their liberties, and dangerous in the extreme; he could not think so ill of his fellowcitizens as to suppose that the rein of despotism was necessary to curb them. Under these impressions, he could not help expressing his dissatisfaction with the present bill; it was a system of oppression which the people neither desired, nor were prepared to receive. Gentlemen ought to recollect that the Constitution was adopted but by a small majority of the people of the United States, if any majority at all; however, this point he would not now contest; but he would be bold to say, that it was adopted under a firm confidence that it would exercise no tyrannical power. At this early period, then, it would be dangerous

to the existence of Government to assume authority for which there was not an absolute necessity.

Gentlemen urged that this was not an expensive Government; but to the eye of the people, who have not been accustomed to such a numerous set of officers, it would not appear in the same light. Will it be thought that the establishment of numerous courts are without expense, or that they will exercise their jurisdiction with out oppression? Or do gentlemen believe that the circumstances of the people are able to bear the expenses of a double band of officers? If such is their opinion, they are certainly mistaken, at least so far as it respects the State of South Carolina. Will gentlemen contend that this Judicial establishment will not bring about the destruction of the State Judiciaries? And are they prepared to prove, to the satisfaction of my constituents, that such a measure would tend to preserve the libererties of America? Is the licentiousness which has been complained of in our State courts, so great as to warrant an exertion of power, little, if any thing, short of tyranny? I cannot believe it

is.

The people of America do not require the iron hand of power to keep them within due bounds; they are sufficiently enlightened to know and pursue their own good. How, then, will they receive a system founded upon distrust, and levelled against the free exercise of that liberty which they have secured to our common country? Can

not a more moderate and convenient mode be found

[SEPTEMBER, 1789.

the county, or district, where he is said to have committed the offence, as the State law directs at present, he is to be dragged down to the city of New York, to take his trial there; not by a jury taken from the country at large, as at present but this section is so subtly framed, that a jury may be picked, not merely within the city, but within any particular ward of it.

The State to which I belong is divided into seven districts or counties; and a person accused of committing a capital offence in one county, as the law is at present, must be tried in that county, and no other; the jury must also be of the same county, and to be drawn by ballot, in order to se cure a fair and impartial trial to the prisoner. But of this glorious and happy privilege the citizens of South Carolina are stripped by the twentyninth clause of this Judiciary bill, as it now stands. If charged with committing a capital offence against the United States, at a place as far back as the Alleghany mountains, he is carried down to the city of Charleston, far from the aid of his friends, far from his witnesses; and if in times of civil troubles, he be obnoxious to those in power, to be tried for his life in the fangs of his enemies.

Here he proposed to make some observations if the gentleman was in order, or if he did not on a late publication, when Mr. BOUDINOT asked wander from the point in debate? Mr. BURKE said he could not resist what he thought his duty, if he failed, he lamented the circumstance, but to make every opposition in his power to the bill; should pay that deferenne to the law which every good citizen ought to do.

On putting the question on Mr. LIVERMORE'S motion for striking out the third clause of the bill. the House divided; eleven voted for, and thirtyone against it; so it passed in the negative. The committee rose and reported progress; and then the House adjourned.

TUESDAY, September 1.

out? Most certainly it can. Let us then reject the present system, and endeavor to introduce one more adapted to their convenience and expectations. I have no doubt but the abilities in this House would produce one infinitely more acceptable than that on the table, and which would secure the happiness and harmony of this country. Mr BURKE. Although I foresee I shall have the honor to vote in the minority, yet I wish to say a few words, that the reasons of my opposition to the bill may be fully understood. The motion made by the worthy member from New Hampshire, (Mr. LIVERMORE,) I wish to support, provided he intends by it to throw out the whole bill. For I am persuaded, if it that consequenpasses, ces of a serious nature to the privileges of the people will flow from it. It will materially affect the trial by jury, and overturn that system of administering justice which time and long experience have recommended to our citizens. To show this, I shall only advert to the twenty-ninth section; out of this, sir, will arise constructions and consequences, of which people in general will form no conception; it requires some share of law-knowledge to comprehend it. Whoever drew that The House proceeded to consider the report clause did it artfully, and with a view of conceal- from the Committee of Elections of the 18th of ing the features of it: and I give him full credit August last, relative to the petition of a number for the share his head had in it. Read the words, of citizens of the State of New Jersey, complain and you see held out to the citizen a fair and iming of the illegality of the election of the within partial trial by a jury of the vicinage, while it in-bers holding seats in this House, sidiously strips him of this happy privilege. For if that State, which lie on the table; and after a man be charged with treason, or other offence having made some progress therein, against the Government, committed as far back as Ordered, That the further consideration of the Lake Ontario, instead of being brought to trial in I said report be put off until to-morrow.

A message from the Senate informed the House that they had passed a bill for the punishment of certain crimes against the United States, to which they request the concurrence of this House. Also a bill for allowing a compensation to the members of the Senate and House of Rep resentatives of the United States, and to the officers of both Houses, with several amend ments, to which they desire the concurrence this House.

as elected within

of

Permanent Seat of Government.