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compel him to attend a court on the return of the writ, if he is not in your power? If this can be done, your system will furnish opportunities for collusion. Á person may be in confinement for an actual debt sued in the State courts, when the marshal of the district shall wrest him out of the hands of the sheriff for a fictitious debt, intended to operate as a rescue. Perhaps gentlemen may think the same jail will answer for both; but you cannot have two keepers of the same jail, and one will refuse to obey a foreign authority. If these objections could be obviated, I should think more favorably of the bill. But, for my part, I cannot see how it is possible. We have supported the Union for thirteen or fourteen years without such courts, from which I infer that they are not necessary, or we should have discovered the inconvenience of being without them; yet I believe Congress have always had ample justice done in all their claims; at least, as I said before, I never heard any complaint, except the case of an appeal on a capture. Now, if we had a Supreme Court, to which appeals can be carried, and an Admiralty Court for deciding cases of a maritime nature, our system will be useful and complete. Why should we suppose that the administration of justice will not be continued with its wonted impartiality? Suppose a merchant gives a bond to pay one hundred dollars duty, can not that bond be recovered as well and speedily in the State courts, as in any Continental court whatever? But admitting the judges may be partial, will not the same jury be employed? The jurors must come from the vicinage, and in all probability the district judges will be composed of gentlemen who preside on the benches of the State courts. Now, in this case, it is the same to the Government, to foreigners, and to citizens. But if a distinction is necessary, it can only be with respect to maritime affairs, dependent on the law of nations; and for this reason we mean to make a provision by instituting Courts of Admiralty. If justice cannot be had here, there will be an appeal to the Federal Supreme Court, which is all that can be required. Now, with respect to the expense of establishing these latter courts, it will not be a fiftieth part as much as the proposed institution, and its advantage and convenience will be a thousand times as great. The whole bill turns upon striking out this clause. If it is done, I intend to move one for the establishment of Courts of Admiralty, with some regulations respecting appeals.

Mr. SMITH, of South Carolina.-As much will depend on the determination of this question, it is necessary it should be well considered by all the committee. It will not be easy to alter the system when once established. The judges are to hold their commissions during good behaviour, and after they are appointed, they are only removable by impeachment; consequently this system must be a permanent one. The committee will not, therefore, determine that there shall be district courts until they have reflected seriously on the consequences attending their vote.

After this point is settled, the next which occurs is the extent of jurisdiction to be annexed

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to this court. This question is as important as the former; for it will be no less difficult than improper to enlarge or curtail the jurisdiction of a court already established.

With respect to the first point, it seems generally conceded that there ought to be a district court of some sort. The Constitution, indeed, recognises such a court, because it speaks of "such inferior courts as the Congress shall establish ;" and because it gives to the Supreme Court only appellate jurisdiction in most cases of a federal nature. But some gentlemen are of opinion that the district court should be altogether confined to admiralty causes; while others deem it expedient that it should be entrusted with a more enlarged jurisdiction; and should, in addition to admiralty causes, take cognizance of all causes of seizure on land, all breaches of impost laws, of offences committed on the high seas, and causes in which foreigners or citizens of other States are parties. The committee are now to decide between these two opinions. After mature reflection, I am inclined to favor the latter. What are the objections advanced against it? A gentleman from New Hampshire has observed, that such an establishment will be unnecessary, expensive, and disagreeable to our constituents. Justice, he observed, could be as well administered in the State as in the district courts; and should the State courts betray any symptoms of partiality, their adjudications would be subject to revision in the Federal Supreme Court, which, in his opinion, afforded sufficient security. If the State courts are to take cognizance of those causes which, by the Constitution are declared to belong to the judicial courts of the United States, an appeal must lie in every case to the latter, otherwise the judicial authority of the Union might be altogether eluded. To deny such an appeal, would be to frustrate the most important objects of the Federal Government, and would obstruct its operations. The necessity of uniformity in the decision of the Federal courts is obvious; to assimilate the principles of national decisions, and collect them, as it were, into one focus, appeals from all the State courts to the Supreme Court would be indispensable. It is, however, much to be apprehended that this constant control of the Supreme Federal Court over the adjudication of the State courts, would dissatisfy the people, and weaken the importance and authority of the State judges. Nay, more, it would lessen their respectability in the eyes of the people, even in causes which properly' appertain to the State jurisdictions; because the people, being accustomed to see their decrees overhauled and annulled by a superior tribunal, would soon learn to form an irreverent opinion of their importance and abilities. It appears, therefore, expedient to separate, as much as possible, the State from the Federal jurisdiction, to draw a broad line of distinction, to assign clearly to each its precise limits, and to prevent a clashing or interference between them. The expense is suggested as an objection to this system. It is admitted by the gentlemen who makes it, that it is proper to have District Courts of Admi

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ralty. These courts múst, of necessity, have jurisdiction of offences committed on the high seas. Now the establishment of such a court will induce nearly all the expense that will be requisite; the extension of the system to the length I have stated will occasion a very trifling increase of the expense; and if, after due consideration, it should be found that the latter plan would be more conducive to the happiness and welfare of our constituents than the other, a small increase of the expense ought to be no impediment to the attain. ment of so valuable an object.

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causes, might delay or frustrate the collection of the revenue, and embarrass the National Government. From this view, it appears that the district court is not clothed with any authority of which the State courts are stripped, but is barely provided with that authority which arises out of the establishment of a National Government, and which is indispensably necessary for its support. Can the State courts at this moment take cognisance of offences committed on the high seas? If they do, it is under an act of Congress, giving them jurisdiction; and, in such cases, the Judge of the Admiralty is associated with two common law judges: this tribunal becomes then a federal court for the particular occasion, because it is established by Congress. The State courts have no jurisdiction of causes arising from a national impost law, because no such law heretofore ex

suggested by gentlemen? The foregoing observations must persuade them that their alarms have been premature. But it is said that there must be court-houses, judges, marshals, clerks, constables, jails, and gibbets; that these establishments will occasion a heavy and unnecessary burden, and have a tendency to create disgust in the people.

There can be no reason why our constituents should be displeased with the arrangement; the district judge will be elected from among the citizens of the State where he is to exercise his functions, and will feel every inducement to promote the happiness and protect the liberties of his fellow-citizens. He will be more indepen-isted. Where, then, is the ground of uneasiness dent than the State judges, holding his commission during good behaviour, and not influenced by the fear of a diminution of his salary. Trial by jury will be secured in all cases wherein it is provided in the State courts. Should the district judge be under any bias, it is reasonable to suppose it would be rather in favor of his fellowcitizens than in favor of foreigners, or the United States. By restricting the State courts to few I readily agree with the gentleman that there causes of federal jurisdiction, the number of ap- are in every community some individuals who peals will be diminished, because every cause will see, with pain, every new institution in the tried in those courts will, for the reasons before shape of a constable, jail, or gibbet, and who mentioned, be subject to appeal; whereas the think that law and courts are an abridgment of jurisdiction of the district court will be final in their liberty: but I should be very sorry to conmany cases. Inasmuch, therefore, as those ap-cur with him that this is a prevailing opinion. I peals are grievous to the citizens, which lie from a court within their own State to the Supreme Court at the seat of Government, and at a great distance, they will consequently be benefited by an exemption from them. In the bill, as sent from the Senate, the jurisdiction of the district courts is not so extensive as to occasion any just alarm; it is, in my opinion, rather too confined, and does not embrace objects enough. It would be difficult to take from that court any of its jurisdiction without materially injuring the whole judicial system, except the clause relating to consuls and vice-consuls, which appears to me to be improperly annexed to the district court, and which I shall move to strike out, when we come to that part of the bill. But to what objects do the district courts extend? To admiralty causes and trials for piracy committed on the high seas. Gentlemen have conceded that the district courts shall have jurisdiction of these cases-to offences against the United States.

It is very proper that a court in the United States should try offences committed against the United States. Every nation upon earth punishes by its own courts offences against its own laws. To seizures on land for breaches of the revenue laws, this power will not be censured; it would be felo de se to trust the collection of the revenue of the United States to the State judica

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think better of our constituents, and am persuaded they are sensible that those institutions are necessary for the protection of their lives and property; and grow out of the very nature of a federal Government. Care, indeed, should be taken to prevent their being grievous and oppressive; but as long as knaves and rogues exist in the world, and monsters, under the form of men, preying upon the innocent, so long will courts and all their concomitants be wanted to redress the wrongs of the latter, and repress the depredations of the former. But let me ask the gentleman whether a Court of Admiralty and a court for the trial of offences on the high seas, which he agrees ought to be established, will not require all these institutions, viz: court-houses, clerks, sheriffs, &c.? There can be no doubt of it. The extension of the jurisdiction of the district court, as far as I think it necessary, will not occasion any one article of expense, or any one institution that will not be necessary on the gentleman's plan. To suppose that there will be a clashing of jurisdiction between the State and district courts on all occasions, by having a double set of officers, is to suppose the States will take a pleasure in thwarting the Federal Government; it is a supposition not warranted by our fellowcitizens, who, finding that these establishments were created for their benefit and protection, will rather promote than obstruct them; it is a supposition equally opposed to the power of direct taxation, and to the establishment of State and

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county courts which exist in the several States, and are productive of no such inconvenience. These several courts will have their limits defined, and will move within their respective orbits without any danger of deviation. Besides, I am not persuaded that there will be a necessity for having separate court-houses and jails; those already provided in the several States will be made use of by the district courts. I remember when the court for the trial of piracy, under the authority of Congress, was held at Charleston, the judges sat in the court-house; the prisoners were confined in the jail, were under the custody of the constable, and were executed by the orders of the sheriff of the district of Charleston. All these were State institutions, and yet the court was a federal court.

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society; and consequently the laws and rules were formed merely for the use of that society. fact, the convenience of the people is, or ought t be, the first principle of every Government; and the people are entitled to expect it. Our present Constitution has set out with this declaration "We the people," in its preamble, and therefore, in the system before us, every attention of the Legislature ought to be drawn to this point. He apprehended, he said, that the system before them was not framed or calculated for that purpose, but appeared to be rather intended to destroy some of the most valuable and important privileges of the citizens. He did not wish to diminish the powers in the Federal Judiciary, which might be thought necessary, and commensurate to the carrying the Government fully into execution; but he considered the system as unnecessary, vexatious, and expensive, and calculated to destroy the harmony and confidence of the people.

There is another important consideration; that is, how far the Constitution stands in the way of this motion. It is declared by that instrument that the judicial power of the United States shall The motion has been objected to by the gentlebe vested in one supreme, and in such inferior man from South Carolina, for striking out the courts as Congress shall from time to time estab-clause, for several reasons; the first I shall notice lish. Here is no discretion, then, in Congress to is, "that in several of the States the judges are vest the judicial power of the United States in limited in their appointments; that inferior juris any other than the Supreme Court and the infe- dictions are required by the Constitution; and rior courts of the United States. It is further that the State judges are not vested with perma declared that the judicial power of the United nent salaries." Those arguments, he observed. States shall extend to all cases of a particular fell to the ground on referring to the Constitu description. How is that power to be adminis- tion; the Constitution, he said, did not absolutely tered? Undoubtedly by the tribunals of the Uni- require inferior jurisdictions; it says that "the ted States; if the judicial power of the United judicial power of the United States shall be vested States extends to those specified cases, it follows in one Supreme Court, and in such inferior courts indisputably that the tribunals of the United as Congress may, from time to time, ordain and States must likewise extend to them. What is establish." The word "may" is not positive, and the object of the motion? To assign the juris-it remains with Congress to determine what infediction of some of these very cases to the State rior jurisdictions may be necessary, and what courts, to judges who, in many instances, hold they will ordain and establish; for if they choose their places for a limited period; whereas, the or think that no inferior jurisdictions are necesConstitution, for the greater security of the citi- sary, there is no obligation to establish them. It zen, and to insure the independence of the federal then remains with the Legislature of the Union judges, has expressly declared that they shall to examine the necessity or expediency of those hold their commissions during good behaviour; courts only. On the subject of expediency, he to judges who are exposed every year to a dimi-said, for his part, he could not see it, and was of nution of salary by the State Legislatures; where- opinion that the State courts would answer every as. the Constitution, to remove from the federal judiciary purpose. judges all dependence on the Legislative or Ex- The gentleman from South Carolina has again ecutive, has protected them from any diminution advanced "that if district and circuit courts are of their compensation. Whether the expediency not adopted, the harmony of the States and of the or the unconstitutionality of the motion be con- people will be at stake, and that the system will sidered, there are more than sufficient reasons to be more vexatious by a series of appeals." He oppose it. The district court is necessary, if we did not agree with that doctrine. He was per intend to adhere to the Constitution, and to carry suaded that the harmony of the people, their liberthe Government into effect. At the same time, I ties and properties, would be more secure under shall cheerfully assist in organizing this court in the legal paths of their ancestors; under their that mode, which will prevent its being grievous modes of trial, and known methods of decision. or oppressive, and will render it conducive to the They have hitherto been accustomed to receive protection and happiness of our constituents. justice at their own doors in a simple form. The Mr. JACKSON said he conceived this to be the system before the House has a round of courts most important business that had as yet come appellate from one to the other; and the poor before the House. It was what he had long con-man that is engaged with a rich opponent will be sidered, and had with difficulty decided, but upon harassed in the most cruel manner; and although mature consideration was impressed with the the sum be limited for appeals, yet same sentiments as the gentleman from New vidual may have a legal right Hampshire. It must be admitted that a society to that limitation, (say above a certain amount of was formed before the rules that governed that dollars,) and not possess fortune sufficient to carry

indi

the poor to a sum superior

AUGUST, 1789.]

Judiciary.

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Is

nobility contested the point, which was never
finally settled until the great charter of John,
which it was one of the causes of producing, and
that fixed the ecclesiastical bounds. He would
ask if our modes of trial must not be as dear to
our fellow-citizens as theirs were to them, and if
the same commotions may not be reasonably ex-
pected? He feared they would be found so.
it proper we should be so suspicious of the State
judges? He could not, he said, for his part, con-
sider human nature so depraved, as to suppose
that, with an oath to observe the supreme law of
the land, the State judges would not obey it. In
his opinion, it became us, as a wise Legislature, to
take up and execute the least exceptionable and
milder mode first. There was no requisition, no
necessity from the Constitution. If, on experi-
ment, it should be found (and the House gener-
ally admits our laws are at present experimental)
that sufficient attention is not paid, and that our
Government requires for its existence a more en-
ergetic mode, he pledged himself to agree to any
inferior jurisdictions that may be thought neces-
sary for that purpose; but he never could consent
to oppress his fellow-citizens without being taught
by absolute necessity arising from experience.

on his lawsuit; he must sink under the oppression of his richer neighbor. He was clearly of opinion that the people would much rather have but one appeal, which, he conceived, would answer every purpose; he meant from the State courts immediately to the Supreme Court of the continent. An Admiralty court of jurisdiction he would grant might be necessary for the trial of maritime affairs, and matters relative to the revenue; to which object he would cheerfully enlarge it; and thought for the present it would be far more eligible. The gentleman has likewise advanced that the expense would be as great without as with the inferior jurisdiction. He would beg leave to differ with him, and declared that it would be in the proportion of three to one; for although the clerk and marshal of the district courts are the officers proposed for the circuit courts, yet there would arise a train of inferior officers, consequently attendant on those officers and courts, exclusive of jurors, witnesses, &c. He has likewise advanced that it would be necessary to prevent confusion; the line of distinction would be much easier preserved in the present state of the department, for many of the reasons pointed out by the gentleman from New Hampshire, exclusive of the difficulty of making new rules. But we are told, Mr. BENSON said, if the House decided in favor he said, it is necessary that every Government of the present question, it would involve a total should have the power of executing its own laws. abandonment of the judicial power, excepting This argument would likewise fail, when we find those cases the honorable gentlemen mean to prothat the Constitution, treaties, and laws of the vide for, namely, the Courts of Admiralty and SuUnited States are, by the Constitution itself, made preme Courts. The honorable gentleman had the supreme laws of the land. Are not the judges observed that difficulties would arise out of the of the different States bound by oath to support proposed establishment; but these difficulties or that supreme law? Will they not recollect those embarrassments are not to be charged to the oaths, and be liable to punishment by your act, House, they grow out of the Constitution itself. which has obliged them to take that oath, if they The gentlemen suppose that two sovereign and do not respect it as such? Assuredly they will; independent authorities can never be exercised it is part of the compact formed with the States. over the same territory; but this is not the busi-But does there not remain the appellate jurisdic-ness of the committee; they could not get rid of tion of the Supreme Court to control them, and bring them to their reason? Can they not reverse or confirm the State decrees, as they may find them right or wrong? Consequently this last argument falls to the ground.

That the system is vexatious can be easily proved, and is too obvious. An offender is dragged from his house, friends and connexions, to a distant spot, where he is deprived of every advantage of former character, of relations and acquaintance; the right of trial by a jury of the vicinage is done away, and perhaps he is carried to a place where popular clamor might for the moment decide against him; or, if allowed a trial by vicinage, or his neighbors, it is equally vexatious to drag him two or three hundred miles from his home, with evidences to try and give testimony at a distant place; every thing is to be dreaded from it. This, he observed, was contrary to our wonted customs, and we need but revert to the history of Britain, after the Conquest, to view what struggles that nation made against innovations of this nature. The monkish clergy joined with the kings to oppress the people, to establish civil law, and get the legal power into their own hands; the people took the alarm, and with the

these difficulties by retrenching their powers; they must carry the Constitution into effect. The gentleman has stated a case, in supposing that process shall issue from the State and continental courts, and both be served upon the defendant at the same time, and then asks what is to be done. Is the man to be divided? Now, in return, he would ask the same question; is the United States to abandon all its powers and jurisdiction, because the exercise of it may be attended with some inconvenience? As well might we ask individual States to abandon theirs, because there is some clashing with the Federal Judiciary. He apprehended that neither were to be abandoned, but that they should endeavor to administer both with as little inconvenience to either as was practicable.

It is not left to the election of the Legislature of the United States whether we adopt or not a judicial system like the one before us; the words in the Constitution are plain and full, and must be carried into operation. He would not undertake to say that it was the best system that could be formed; but it had its advantages over some in which the honorable gentleman from New Hampshire (Mr. LIVERMORE) had said that justice was

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well administered; he thought there was more reliance on judges who were appointed during good behaviour, than on others appointed from session to session, and ever dependent on the will of the State Legislatures.

carry

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curred to prove to us how dangerous it would be to make the State Legislatures the sole guardians of the national faith and honor. Already have the United States been hurled down by those arms from a pinnacle of glory to the lowest state of deHe left it to experience to show whether the gradation. The United States, after a glorious Judiciaries would interfere or not; some gentle- and successful struggle, in which they displayed a men had predicted they would; it was possible valor and patriotism astonishing the Old World, that they might, and he did not know but that the secured their independence! and a single concesinterference would be of such a delicate nature, assion was the price of an honorable peace. The to compel the United States to relinquish her por- discharge of bona fide debts due from the citizens tion; or, on the other hand, the States individu-of America to the subjects of Britain was all that ally might consent that the judicial power should Britain required. Now, is it not obvious to every be solely exercised by the Union. But all this man, that this honorable stipulation ought by all was wide of the question; the House had nothing means to be considered the supreme law of the more to do than to perform their duty, and land? Yet, what was the event? State after the Constitution into full operation. State, Legislature after Legislature, made laws Mr. SEDGWICK said, the gentleman would find and regulations in positive opposition to the treaty; as many difficulties growing out of the substitute and the State judiciaries could not, or did not, deas those he apprehended from the plan on the ta- have been the consequences of these proceedings? cide contrary to their State ordinances. What ble. He had asked what will be done with the It ill becomes me at this time, when we hope to prisoners if they are taken at the same time in consequence of processes from the National and wipe off every ignominious stain, to recapitulate State courts? I answer by asking him, what will the evils it has drawn down upon the nation. But be done with the prisoners if they are taken at the I hope they are sufficiently notorious to put us on same time by a process from the Admiralty and our guard against trusting essential powers out of State courts? The other difficulties he had ap- the wishes of the people. our hands, contrary to our duty, and contrary to prehended were well replied to by the honorable gentleman from South Carolina; and I shall only remark, that we are so circumstanced that two distinct independent powers of judicial proceedings must exist; at least I do not see how we shall get rid of the difficulty, if it is one, until there shall be a change in the Constitution.

I did not suppose it was a question at this day, whether this Government is to exercise all the powers of a Government or not. I did conceive, sir, that such an idea could exist in the mind of any gentleman; yet what is the object of the present motion? Sir, it goes to divest the Government of one of its most essential branches; if this is destroyed, your Constitution is but the shadow of a Government.

not be organized without establishing its judicial When we are certain that the Government cantribunals; when we fear for its existence, (at least its existing with reputation and dignity.) unless and national treaties; shall we forego them because we provide for the due execution of national laws gentlemen apprehend some small difficulties from interfering process? Sir, it has been already demonstrated that the interference will be trifling, if any; it will be too small to authorize us to blast the expected benefits arising from a complete and efficient system of government.

Mr. AMES said, the remarks made by gentlemen on the importance of this question would be of some utility in deciding it. The judicial power is, in fact, highly important to the Government Is it not essential that a Government possess and to the people; to the Government, because within itself the power necessary to carry its laws by this means its laws are peaceably carried into into execution? But the honorable gentleman execution. We know, by experience, what a proposes to leave this business to a foreign author- wretched system that is which is divested of this ity, totally independent of this Legislature, whether power. We see the difference between a treaty our ordinances shall have efficacy or not. Would which independent nations make, and which canthis be prudent, even if it were in our power? not be enforced without war, and a law which is Suppose a State Government was inimical to the the will of the society, A refractory individual is Federal Government, and its judges were attached made to feel the weight of the whole community. to the same local policy, they might refuse or ne- A Government that may make but cannot enforce glect to attend to the national business; they laws, cannot last long, nor do much good. By the might be corrupt, and in either case the public power, too, the people are gainers. The adminis might sustain an essential injury. And where tration of justice is the very performance of the would be your redress? Shall we apply to the social bargain on the part of Government. It is State Legislatures that patronize them? Can we the reward of their toils; the equivalent for what impeach or have them tried? If we can, how is they grant. They have to plant, to water, to ma the trial to be had; before a tribunal established nure the tree, and this is the fruit of it. The arby the State? Can we expect in this way to gument, therefore, a priori, is strong against the bring them to justice? Surely no gentleman sup-motion; for while it weakens the Government, it poses we can. These are not chimerical suppositions; they are founded in nature, and such as may be expected; indeed, facts have already oc

defrauds the people. We live in a time of innovation; but until miracles shall become more common than ordinary events, and surprise us less

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