H. of R.J Judiciary. [AUGUST, 1789. 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 that and corporation taxes, and that these never occa- the suitors may be persecuted with appeals, car sioned 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 District 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 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 fact 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 objections against any system of jurisprudence whatever. They will all be more or less liable to some objections on the score of inconvenience, but they are submitted to by good citizens, who are sensible that they are the surest means of protecting their property, reputations, and lives. After all that has been said, it does not appear that we differ so widely as was at first imagined; for the gentlemen who advocate the motion, concede the necessity of some inferior Federal court in each State. What then do gentlemen object to ? If it is the name of the court, that may be altered; if it is the frequency of holding them, it will be very easy to amend the clause in that respect; but they move to strike out the clause altogether, when it is granted on all hands that there must be such a court. The objection to the extent of jurisdiction is premature, and ought to be reserved for the clause which ascertains the jurisdiction; if, upon an investigation of that clause, it should appear that it ought to be restricted, that would be the seasonable time for moving to strike out the exceptionable part; but really at present gentlemen are making objections to one clause which, from their own concessions, apply altogether to another. As to several other observations that relate to the time of holding the courts, and the mode of drawing jurors, it is unnecessary to reply fully to them at present, because it would be im-rior courts. proper to run into a discussion of the detail, while the question is on the principle of the system. He was no less opposed to the time of holding the courts, and the mode of drawing jurors, provided by the bill, than the gentleman was from whom the objection came, and would add his endeavors with his to effect an alteration in these points; but this is not the proper time, we are now on the principle, whether there shall be a District court: the same answer will apply to the objection that the juries and witnesses will be unnecessarily harassed; every care will be taken to accommo date these courts to the convenience of the citizens of each State. Several other difficulties have been urged, as It has been said, that, under the idea of vici nage, a man may be dragged far from his friends to trial, from Georgia to North Carolina; but it must be remembered that there is a Constitutional provision that the criminal shall be tried in the State where the offence is committed, and the bill is conformable to the Constitution in this respect. It has been observed that the Constitu tion is no bar to vesting the State courts with Federal powers, for the words, "such inferior courts as Congress shall, from time to time, esta blish," imply that Congress may not institute them; and if they are not instituted, these pow ers must of course remain with the State courts. In reply to this argument, it is to be observed, that the words, "such inferior courts," &c. apply to the number and quality of the inferior Federal courts, and not to the possibility of excluding them altogether; it is a latitude of expression empowering Congress to institute such a number of inferior courts, of such particular construction. and at such particular places, as shall be found expedient; in short, in the words of the Constitution, Congress may establish such inferior courts' as may appear requisite. But that Congress must establish some inferior courts is be yond a doubt; in the first place, the Constitution declares that the Judicial power of the United States shall be vested in a Supreme and in infeThe words, "shall be vested," have great energy; they are words of command; they leave no discretion to Congress to parcel out the Judicial powers of the Union to State judicatures where a discretionary power is left to Congress by the Constitution; the word "may" ployed where a discretion is left; the word "shall is the appropriate term; this distinction is cal tiously observed. Again, the Supreme Court.in two cases only, has original jurisdiction; in all others it has appellate jurisdiction; but where s the appeal to come from? Certainly the State courts; it must come from a Federa tribunal. There is another argument that ap pears conclusive; the Constitution provides that the Judges of the Supreme and inferior courts em not from shall hold their commissions during good behaviour, and shall receive salaries not capable of diminution; and it further provides, that the Judicial power of the Union shall be vested in a Supreme and inferior courts; that is, in supreme and inferior courts whose Judges shall receive their commissions during good behaviour, and possess salaries not liable to diminution. Does not, then, the Constitution, in the plainest and most unequivocal language, preclude us from allotting any part of the Judicial authority of the Union to the State judicature? The bill, it is said, is then unconstitutional, for it recognises the authority of the Federal court to overturn the decisions of the State courts, when those decisions are repugnant to the laws or Constitution of the United States. This is no recognition of any such authority; it is a necessary provision to guard the rights of the Union against the invasion of the States. If a State court should usurp the jurisdiction of Federal causes, and by its adjudications attempt to strip the Federal Government of its Constitutional rights, it is necessary that the National tribunal shall possess the power of protecting those rights from such invasion. The committee have been told that this multiplicity of courts, and of appeals, will distress the citizens; and the number of appeals in Great Britain has been alluded to. He had always heard, he said, that there was no country in the world where justice was better administered than in that country; to its excellent and impartial administration, the property, freedom, and civil rights of its citizens have been attributed. Were appeals too much restrained in this country, he questioned much whether a great clamor would not be raised against such a restriction. The citizens of a free country, when they lose their cause in one court, like to try their chance in another. This is a privilege they consider themselves justly entitled to; and if a litigious man harass his adversary by vexatious appeals, he is sufficiently punished by having the costs to pay. By limiting appeals to the Supreme Court to sums above one thousand dollars, as is proposed, the poor will be protected from being harassed by appeals to the Supreme Court. There was one more observation that required an answer; it was said that the juries shall be so drawn as to occasion the smallest inconvenience to the citizens. After having very maturely considered the subject, and attentively examined the bill in all its modifications, and heard all that had been alleged on this occasion, he was perfectly convinced, that whatever defects might be discovered in other parts of the bill, the adoption of this motion would tend to the rejection of every system of national jurisprudence. Mr. MADISON said, that he was inclined to amend every part of the bill, so as to remove gentlemen's jealousy, provided it could be done consistently with the Constitution. Mr. GERRY was sorry to hear the honorable gentleman from South Carolina (Mr. BURKE) renounce his intention of opposing the system any 1st CON.-27 [H. or R. further; he thought gentlemen ought not to be tired out like a jury. Mr. BURKE said, he was not tired with the discussion, but was satisfied that the opposition must be unsuccessful. The committee now rose and reported progress.-Adjourned. MONDAY, August 31. The engrossed bill to suspend part of an act to regulate the collection of the duties imposed by law on the tonnage of ships or vessels, on goods, wares, and merchandises imported into the United States, was read a third time, and, on motion, ordered to be committed to Messrs. GOODHUE, CARsaid committee to insert a clause or clauses for ROLL, LEE, and BLAND, with instruction to the establishing Bath and Frenchman's Bay, in the State of Massachusetts, ports of delivery for all foreign vessels. THE JUDICIARY. The House then went again into a Committee of the Whole on the bill for establishing the Judicial Courts of the United States; Mr. BOUDINOT in the Chair. The question being still on striking out the third clause Mr. LIVERMORE thought this law would entirely change the form of Government of the United States. Several observations have been made on this clause; it is said to be the axis on which the whole turns; some of the objections he had thrown out have been attempted to be answered; among others, the great expense. By expense he did not mean the salaries of Judges; this would, however, be greater than the whole expense of the Judiciary throughout the United States; but he referred to the general expenses which must be borne by the people at large for jails, courthouses, &c.; borne without repining, as the people receive compensation in personal security and public justice; but if all these were doubled throughout, it would be justly considered as intolerable. Another burden, he said, was the rapidity of the course of prosecution in these courts, by which debtors would be obliged very suddenly to pay their debts at a great disadvantage. Something like this occasioned the insurrection in the Commonwealth of Massachusetts. In other States, similar modes of rapidity in the collection of debts have produced conventions. This had been the case to the northward, and, he had been informed, had been the same to the southward. This new fangled system would eventually in favor of this rapid mode of receiving debts, swallow up the State courts, as those who were would have recourse to them. He then adverted to the clashing circumstances that must arise in the administration of justice, by these independent courts having similar powers. Gentlemen, said he, may be very facetious respecting dividing the body; but these are serious difficulties; the instances mentioned by the gentleman from South Carolina do not apply, the officer here is the same the same sheriff has the precepts committed to him; and the execution does not clash; the same jail answers for both. He did not think that the difficulties had been answered by any of the examples brought for the purpose. As to the instance of the trial for piracy in the State of South Carolina, that was a particular case, that could not be otherwise provided for; but these so rarely happen, that no precedent could be drawn from them to render it necessary to establish these perpetual courts. He then referred to the clause, and offered a substitute, and said he thought, upon the whole, that the suggestion thrown out by an honorable gentleman from South Carolina (Mr.BURKE) that there should be no district courts, is better than any substitute. [AUGUST, 1789. justice) transferring the business from one tribunal to another. The gentleman has told us that the people do not like courts; that they have been opposed and prevented by violence; nay, by an insurrection in Massachusetts. Surely this operates as a pow erful reason to prove that there should be a general, independent, and energetic jurisdiction; other wise, if either of the State Judges should be so inclined, or a few sons of faction so assembled. they could ever frustrate the objects of justice; and, besides, from the different periods fixed by the Constitution of the United States, and the different constitutions of the several States, with respect to the continuance of the Judges in office. it is equally impossible and inconsistent to make a general, uniform establishment, so as to accommodate them to your government. It may be proper here to refer to the ConstituHe 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 said; but this is not the case. The State courts are allowed jurisdiction in these cases. It has been objected that bonds taken by the Judges of the Supreme Court cannot be sued in the State courts. He did not see why this could not be done; similar processes have been usual among us in times past, and there has been no difficulty. Admiralty courts should have cognizance of all maritime matters, and cases of seizures should also be committed to their decision. He hoped, therefore, that the clause would be disagreed to, or struck out, and that the bill might be rejected, that a short concise system might be adopted. into your own, and, in short, the United States of America would be made not only an asylum of liberty, but a sanctuary of justice. The faith of treaties would be preserved inviolate; our exten sive funded system would have its intended ope ration; our navigation, impost, and revenue laws would be executed so as to insure their vantages, whilst the combined effect would estab lish the public and private credit of the Union. many ad Mr. STONE.-I am mistaken if the whole subthink it ought to be thoroughly investigated beject has yet come before us in its full extent, and fore it is decided upon. I to give the arguments all the weight they deserve. I think, before we enter into a view of the convenience of the system, it will be right to consider the Constitutional ground on which we stand. 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 re administration of such laws, is in its nature in-flected, sir, on the subject, and have endeavored separable and indivisible, if not, "justice might be said to be lame as well as blind among us." The only plausible argument which has been urged against this clause is the expense. It is 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, 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. Its 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, laws; from your amazing increasing system of through all its branches; but if it is not true, government, causes must necessarily multiply in may model it so as to suit the convenience of the a 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 as 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 we must carry we cannot AUGUST, 1789.] Judiciary. [H. OF R. an inferior court-from the District Court it is carried to the Circuit Court, and may be brought up into the Supreme Court. This power, I say, we have by the Constitution; would it be proper to exercise it? But these circumstances would certainly follow from a construction that the Constitution was imperative, and that you must establish inferior tribunals on the terms of the Constitution. model or restrain their jurisdictions, the words which give us the power from time to time so to do, are vain and nugatory. Do the words "from time to time" leave any thing to our discretion? Or must we establish in our own minds a given length of time to gratify its meaning? Are we to compare it with the case of a census, and confine it to a subsequent term of ten years? If you establish inferior courts upon this principle, you 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 jurisdiction is 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. But if this is not the case; if they do not relinquish this sum, (and the Senate did not suppose this was ever to be given up,) they did what appears, upon the gentleman's principles, very strange indeed: they leave Continental courts to be established by their bringing suits, or foreigners bringing suits into the State courts; and in this way they divest the President of his power of appointing judges of inferior courts. This appears to my mind a strange mode of reasoning. The gentleman from New York seems to think it will be an abandonment of our Judicial power altogether. To what does the Legislative power of this Government extend? To a variety of cases which are not yet put in action; for instance, the Legislative power extends to excises and direct taxes. If you conceive the Judiciary incomplete, because you have not strained it to its utmost extension, cannot you see, from the same principle, that the Legislative power is not complete unless you extend it as far as you have the power? Do you divest yourself of the power by not exercising it? Certainly not. Suppose you were to lay as heavy a land tax as the people could bear, (and this is in our power by the terms of the Constitution,) and suppose the people were to ask you why you had done so, when there was no absolute necessity for it, would you answer that the Constitution has given us the power, therefore we must exercise it? Certainly not. The Constitution has given us power to admit that a suit in certain cases shall be brought for six-pence; this we may authorize to be done in A gentleman has said that it would be impracticable to admit the judges of the several States to take cognizance of the laws of the United States, because they are laws de novo: this I think is the idea. I apprehend that judges, when they have undertaken their duty, must be considered in two respects-as citizens and as judges. Now as men, they are to submit to the modification of the Constitution as it respects them as citizens; and as judges, they are to consider their relation as such to the Constitution, and are to administer justice agreeably to that Constitution; as judges they may divest themselves of this relation; they may resign, but if they continue to act as judges, they are enjoined to obey the Constitution of the United States, and laws established under it: now judges know that it is in the power of the United States to change the State Constitutions, and they must conform in every respect. A judge binds himself not only to act upon the laws which have already passed, but to obey all that may hereafter pass. If it is admitted that the judges cannot take cognizance of the laws de novo, you annihilate the judicial capacity at a blow; they cannot notice the adoption of the Federal Constitution or any law passed after appointment. I can hardly bring myself seriously to consider the subject in this reverse point of view. Gentlemen will be convinced, I hope, that I take all the pains I possibly can to understand and discuss the arguments made use of; they will admit that if my principles are right, Congress may establish the courts on what terms they may think proper. [AUGUST, 1759. pose, when he contracted his debt, that he might bring his suit in a State court; if you exclude him from this privilege, you destroy the right he had; a right, notwithstanding all that may be affirmed of the wisdom, honesty, and expedition of the courts of the United States, yet to him it may appear ten to one better to be secured in his rights in State courts. I think the inconvenience which will attend these courts has been fully explained; but certainly it has not been fully considered how far the inconveniences heretofore sustained may be compared to the inconveniences which may hereafter happen; perhaps there are no instances in point. Gentlemen are mistaken, who suppose that because there are many tribunals in the State they are necessarily exposed to the same difficulties as will arise from the establishment of Federal and State courts. I will state a case: A man is taken in Maryland by a 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 Genebut 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, bepowers 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 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 of New York as a member of the Union? Is not a piracy committed against the United States committed against a particular State? If it had its sovereign authority unimpaired, would any gentlemen contend that they had not power to try for piracy? I apprehend they would not. If a bond is given to the United States, or a penalty accrues under the supreme law of the land, or if a debt is due to a foreigner, may it not be sued in any part of the Union? I believe there is little doubt but this might be properly done-the Senate, by this bill, have given us this construction: foreigners may sue and be sued in all the States. This has already been done; do gentlemen now contend, that these suits shall be exclusively in the Continental courts? If they do, it would be an infringement of the private contracts, it would be an ex post facto law. The citizen might sup ings of, each other. fiable in detaining a man after the cause for which be was committed to his custody ceased. An execution against the property depends upon the same principles; because the priority avoids all difficulty. If all the property is taken by the prior execution, the return of that fact is a proper return. But property is bound by the time of judg ment in some cases, and the time of execution is put into the sheriff's hands in others. Now there is no difference where the same sheriff receives all. But suppose there is a different time of rendering judgment, and of receiving execution, and both are levied at the same time either upon body or goods. The rules of the courts are different; there will be different determinations in each, and perhaps each justifying their own affirmation. Even they may clash as to a matter of right. Suppose goods are stolen, and a prosecution is set on foot in the Federal court as of goods belonging |