Gazette of the United-States. (New-York [N.Y.]) 1789-1793, September 02, 1789, Page 162, Image 2

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    improper to enlarge or curtail the jurifdidtion of
a court already ellablifhed. With refpedt to the
firft point, it feeinsgenerally conceded thattliere
ought trb be a diftridt court of some fort. The
constitution indeed recognizes such a court, be
cause it speaks of " such inferiors courts as the
Congress shall establish," and because it gives to the
iupreme court only appellate jurifdidtion in most
causes of a federal nature. But some gentlemen
are of opinion that the diftridt court should be
altogether confined to admiralty causes ; while
others deem it expedient that it should beintrufted
with a more enlarged jurifdidtion : and should in
addition to admiralty causes, take cognizance of
all causes of seizure on land, all breaches of im
post laws, of offences committed on the high seas,
and causes in which foreigners or citizens of other
Hates are parties. ihe committee are now to de
cide between these two opinions : After mature
reflection, I am inclined to favour the latter.
"What are the objections advanced against it ? A
gentleman from New-Hainpfhire has observed,
that I'uch an eftabliihment will be unneceflary, ex
pensive anddifagreeable to our constituents. Jus
tice, he observed, could as well be administered
311 the state as in the diftridt courts, and should the
Hate courts betray any fymproms of partiality,
their adjudications would be fubjedt to revision in
the federal supreme court, which in his opinion
afforded fufficient security. If the state courts are to
take cognizance of those causes which by the confli
tution are declared to belong to the judicial courts
of the United States, an appeal mull lie in every
cafe to the latter, otherwise the judicial authori
ty of the Union might be altogether eluded. To
deny such an appeal would be to fruftrate the most
important objects of the federal government,
and would obftrudt its operations. The neceflity
of uniformity in the decisions of the federal courts
is obvious ;to aflimilate the principles of national
decisions, and collect them, as it were into one
focus, appeals from all the state courts to the su
preme court would be indifpenfible; It is
however much to be apprehended that this
constant controul of the supreme federal court
over the adjudication of the state Courts
would diflatisfy the people, and weaken the
importance and authority of the state judges ;
nay more, it would lellen their refpedlability in
the eyes of the people, even in causes which pro
perly appertain to the state jurifdidtions ; because
the people being accustomed to fee their decrees
overhaled 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 pos
sible, the state from the federal jurifdidtion, to
draw abroad line of diftindtion, to aflign clearly
to each its precise limits, and to prevent a clafn
ing or interference between them. The expence
is suggested as an objedtion to this system It is
admitted by the gentleman who makes it, thaPit
is proper to have diftridt courts of admiralty ;
these courts must of neceflity have jurisdic
tion of offences committed on the high seas. Now
the establishment of such a court will induce near
ly all the expence that will be requisite; the ex
tension of the system to the length I have stated
will occasion a very trifling increase of the ex
pence, and if the latter plan should be found,
after due conlideration to be more conducive to
the liappinefs and welfare of our constituent- than
the oiher, a small increase of the expence ought to
be 110 impediment to the attainment of so valauble
an objedt. There can be 110 reason why our con
stituents should be displeased with this arrange
ment; the diftridt judge will be eledted from
among the citizens of the state where he is to
exercise his fundtions and will feel every induce
ment to promote the liappinefs and protedt the
liberties of his fellow-citizens—he will be more
independent than the state judges, holding his
•commiflion during good behaviour, and not be
ng 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 diftridt judge be under any biafs, it is reason
able to suppose it would be rather in favour of
his fellow-citizens, than in favour of foreigners or
the United States. By reftridting the state courts
to few causes of federal jurifdidtion, the number
of appeals will be diminifhecl, because every caule
tried in those courts will for the reasons before
mentioned be fubjedt to appeal, whereas t;\t ju
rifdidtion of the diftridt court will be filial in ma
ny cafe?. In as much, therefore, as those ap
peals are grievous to the citizens, which lie from
a court within their own state to the supreme
court at the feat of government, and at a great
diltance, they will consequently be beneficed by
an exemption from them. In the bill as sent from
the Senate, the jurifdidtion of the diftridt 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 diffi
cult to take from that court any of its jurifdidti
on without materially injuring the whole judi
cial system, except the clause relating to consuls
and vice consuls, which appears to me to be im
properly annexed to the diftridt court, and which
I shall move to ltrike out when we come to that
part of the bill. But to what objects does the
diftii£l courts extend ? To admiralty causes and trials for piracy
and offences committed on the high seas : Gentlemen have con
ceded that thediftrift courts shall have jurifdi&ion of these cases.
To offencefc against the United States: It is very proper that a
court of the United States should try offences committed against
the United States.—Every nation on earth punifhcs by its own
courts offences against its laws. To seizures on land for breaches
of the revenue laws : This power will not be censured : it avouM
be felo de fe totruft the colle&ion of the revenue of the United
States to the state judicatures. The disinclination of the judges to
-carry the law irttoeffeft, their disapprobation of a certain duty,
the rules of the court or other obvious caufcs might delay or fruf
trate the colle&ion of the revenue, and embarrass the national go
vernment. From this view it appears that the diftrift court is
not cloathed with any authority of which the state courts are strip
ped, but is barely provided witji that authority which arises out
of the cftablifhment of a national government; and which is in
difpcnfibly neceflary for its fuppott.' Can the state courts
at this moment take cognizance of offences committed on the
high seas ? Ifthey do, it is under anaft of Congress, giving them
jurifdift ion, and in such cases the judge of the admiralty is alloc
ated 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 jurifdi&iOn of causes arif
ingfrom a national impoftlaw, because no such law has hereto
fore existed. Where then is the ground of uneafincfs suggested by
gentlemen ? The foregoing observations must perfuacfe them
that their alarms- have been premature. But it is said there must
be court-houses, judges, marlhals, clerks, constables, goals and
gibbets that these eftablifhmcnts will induce a heavy and unne
ceflary burthen, and have a tendency to create difguftin the peo
ple. I readily agree with the gentleman that there are in every
community some individuals who will fee with pain every new
institution in the shape of a constable, goal or gibbet: and who
think that law and courts are an abridgement of their libert) ; but I
mould be Very sorry to concur with him that this is a prevailing
opinion : I think better of our conftitucnts, and am persuaded they
arc sensible that these institutions are neceflary forihe prote&ion of
their lives and property; and grow out of the very nature of a fe
deral government. Care indeed should be taken to prevent their
being grievous and oppreflive : But as long as there are in the
world knaves and rogues, and monsters under the form of men,
preying upon the honest and 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
i 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, cleiks, fheriffs, See ? There can be no doubt of
"• exle »fion of the jurifdi&ion of the diftrift court as far as
I thing it neceflary will not occasion any one article of expence or
any one institution which will not be neceflary on the gentleman's
plan. To suppose that there will be a clashing of jurifdi&ion be
tw en the state and diftritt courts on all occasion% by having a
double set of officers, is to suppose that the states will take a pica
lure in thwarting the federal government : It is a supposition not
warranted by the disposition of our fellow-citizens, who 4 find
ing that these cftablifhments arc created for their benefit and pro
tection, will rather promote than obftruft them : It is a fuppo
oui '/J"* I*'1*' °PP°fcd to the power of direst taxation, and to the
eltabliihment of state and county courts, which cxift in the several
ltates and arc produttive of no such inconvenience. These several
co " rl * aVe ,c ' r ' ts defined, and will move within their
relpecrive orbits without any danger of deviation. Besides, I am not
persuaded that there will be a neceflitv for having separate court
houses and goals : Those already provided in the several states will
be made use of by the diftrift courts. I remember *rhen the
court lor the trial of piracy under the authority of Cortgrefs, was
held inCharlefton, the judges set in the court-house, the prisoners
were confined in the goal, were under the custody of the confta
f Vm? rC exccutcc * h Y l^c orders of the fheriff of the diftnft
ol Charleston. All these were state institutions, and yet the
court was a federal court.
i here is another important consideration ; that is, how far the
constitution st an ds in the way of this motion :It is declared by
t at instrument that the judicial power of the United States shall
e vested m one fupremeand in such inferior courtsas Congress fliall
rom time to time cftablifh : Here is no discretion then in Con
grels the judicial power of the United States in any other
tribunal than in thefupreme court and the inferiorcdurts of the
mtcdStates : It is further declared that the judicial power of the
UiiitedStatcs lhall extend to all cases of a particular description—
How is that power tobeadminiftered PUndoubtedly by thctribunals
o the United States : If the judicial power of the United States ex
ten s to those fpecified cases, it follows indisputably that thetribu
-10 Tn ' States likewise extend to them.—What is the
0 jedt of the motion ? To aflign the jurifdittion of some of these
C u al " l ° ate . COum > t0 j ud S cs » who in many instances
hold their places fora limited period, whereas the constitution, for
1 f c S lc^! tcr Security of the citizen, and to infurc the independence
of the federal judges, has expressly declared that they fliall hold
their commifTionsdurihg. good behaviour; —to judges who are ex
poled every year to a diminution of salary by the state legislatures,
whereas the constitution to remove from the federal judges all de
pendence on the legislative or the executive, has prote&ed them
from any diminution of their compensation. Whether the inex
pediency or the unconftitutionality of the motion be consider
ed, there are more than fufficient reasons to oppose it. The dis
trict court is neceflary, if we intend to adhere to the spirit of the
constitution, and to carry the government into effect. At the
fame time, I shall chearfully aflift in organizing this court in that
mode which will prevent its being grievous or oppreflive, and
will render it conducive to the proUftion and happiness of our
J A^ KsbN . : * Sir, on what I conceive the most impor
tant subject, which has yet come before this house : It is what I
ave long considered, and with difficulty have decided, but on ma
ture consideration, am imprefled with the fame sentiments with
the gentleman from Ncw-Hampfhire. It must be admitted, that
society was formed before the rules which governed thatfociety
and therefore the laws and rules Were formed merely for the con
venience of that society. In fattthe cotiveniency of the peoole is
or ought to be the firft privilege of every government ; and the
people have a right to expect it. Our present constitution has fa
out with this declaration, « We the People," in its preamble •
and therefore in the system before us, every attention of the Leril
flature ought to be drawn tothis point. Sir, I apprehend that the
system before us is not framed, or calculated for that purpofr •
but leems rather intended to destroy some of the most valuable'
and important privileges of the citizens. Ido not wish to diminl
ilh from the powers in the federal judiciary, which may be ne
ceilary and eommenfurate to the carrying the government fully in
to execution ; but I confiderthe system unncceflary, vexatious, and
expensive, and calculated to destroy the haimony and confidence
ot the people.
The gentleman from South-Carolina hasobjefted to the motion
for fti Jung out the clause, tor several reasons : The firft he brings
forward is, that in several of the State, the Judges arc limited
■n the.rappo'ntments .hat mferio,. j ur lf diaio n J s are required by
manpnt f I "»'"c Sate judge. are not vested with per
manent falanes. Sir, those arguments fall to the ground on re
eiring to the Constitution : The Constitution does not absolutely
lequire m ferior jurisdictions :It fays, that " the ndicial power
of lie United States shall be vested m one fupremc court, and in
and eftablift, " ,hc , Con g rcfß n ' a y/ r om timeto time ordain
and eitabliih Ihe word nay is not positive, and it remains with
Congress to determine what inferior jurifdlaions are nrceffan
and what they will ordam and eftablifb, for if they chufe, or think
J uri '^ia.on S neccflarv, thesis no obligation lo eftah
t,,ClP' l! lhc " reßlains «>f Ie S .flature of the Union to
examine the necessity or expediency of those courts «l r c
the fubjea o expediency, I lor my part, cannot fee i f"' °»
of opinion that the State courts will anfvver , w ,„ ■
pose. udlc «rypi,r-
The gentleman from South-Caro'.ina has arain advan j
if diflndt and circuit courts are not adopted" rH, k, "'W
States and people will be at (lake, and that the'fyttem ""n"? of l!, e
vexatious by a fines of appeals." Sir, Ido not j, r morc
doctrine. I hold that the harmpnv of the people "r'
and properties will be more ferure'unde, the La'l c ' !u '
ancestors, undertheir modesof trial, and known meth J" 1i" !r
lhc >' have heretofore been accuftomcd to receive 1
their own doois in a simple form. The fyftera before,'lk!'
has a round of courts, appellate from one to the other and.l
man that is engaged With a rich opponent, will beVarnff. i P ' W
mod cruel manner, and although the sum be limited f " C
yet, Sir, the poor individual mav have a legal to a f,!,!. 1 ?' I ''
no- :o th; t limitat on, fay above a certain amount of doll" pt "
not possess fortune fufficient to carry on his law suit • He
under the oppreflion of his richer neighbor. Jam , ,
opinion that the people would much rather hove l,u* one"''" ° f
and which in my tfpiuion would answer every puroofe • W!™ 1 '
from the State courts, immediately to the fupteme corn f?
continent. An admiralty jurifdiftion I will grant mav ben f
fary lor the trial of maritime affair,, and matter, 7ZtZt
revenue, to which objea I would cheerfully eniar« it and i,J ,
Sir, lor the present it will be far more eligible. The Kntl
has likewise advanced that the expence would beas Ereatwith"""
as with the inferior jurifdiftion. I must beg leave to diir-rf 0 "'
him, and to declare that it will be in the proportion of thr"""
one: for although the clerk and marflial of the
the officers proposed for the circuit courts, yet, Sir, therewili !r £
a train of inferior officers, consequently attendant on those ofEcr
and courts, exclusive of jurors, witnelfes, He has like /
advanced that it is neceltar'y to prevent confufion : Sir, the line's
diftinflion will be much cjfier preserved iivthe present fijte o ftl
department, for many of the reasons pointed gut by the ecml-"
manfrom New-Hampshire, exclusive of the difficulty ot newnik.
&c. But, Sir, we arc told it is necefTary that every govemmii'
should have the power of executing its own laws: this arrument
must likewise tumble when we find that the Constitution, treaties
and laws of the United States are by the Constitution itfelf. made
the fupremr law of the land. Sir, are not the judges of the'diffei
ent States bound by oath to support that fuprcinelaw ? Wilhh
not rccollefl those oaths, and be liable to puuifhment by your ast
which has obliged them to take that oath, if they do not re(pt£t
it as such ? afTuicdly they will—it is part of thecompaft fotmrd
with the States ; but, Sir, does there not remain the appellate in
rifdiftion of the fupremecourt to controltherti.and bring them to
their reason ? Can they not reverse, or confirm the State decrees js
they may find thein right or wrong ? Thus then does this laltar
gument fall to the ground.
Sir : That the system is vexatious can be easily proved, and is tot,
obvious. An offender is dragged from his home, his friends,and
connections, to a distant spot, whe:e he is deprived of every ad
vantage of former chara&er, of relatiens, and acquaintance : Tbt
right of trial by a jury of the vicinage is done away, and perhaps
he is carried to a place where popular clamor for the moment
might decide against him ; or if allowed a trial by vicinage, or his
neighbors, it is equally vexatious to drag them two or three hun
dred miles from their homes, with evidences to try, and givetelli
mony, at a distant place ; everything ic to be dreaded from it. Sir,
Ins is contrary to our wonted customs, and we need but revert to
the history of Britain, after the conqucft, to view what ftrugglcs
a gain ft innovations ot this nature that nation made. Thcraon.
kifh clergy joined with the Kings to oppress the people, eftablilh
civil law, and get the legal power into their own hands: The peo
ple took the alarm, and the nobility contested the point,
which was never finally fettled until the great charter of John,
which it was one of the causes of producing, and which fixed the
ecclefiaflical bounds I would ask if our modes of trial mu/f not
be as dear to our fellow-citizens as to them, and if the famecom
motions may not reasonably be expe&ed ? I am afraid, Sir, that
they will be found so. Is it proper we should be so fufpiciouj
of the State Judges ? I cannot for my part consider human nature
so depraved, as to fuppofc that with an oathtoobfervethefupreme
law of the land, the State Judges would not obey it. It becomes
us in my opinion, as a wife legislature, to take up and execute the
lead exceptionable and milder mode firft : there is no requisition
—no necessity from the Constitution : If we find on experiment,
(and the house generally admit our laws at present experimental)
that fufficient attention is not paid, and that our government re
quires for its existence a more energetic mode, I pledge myfelfto
agree to any inferior jurisdi&ions which may be thought necefTary
for that purpose ; but I never can consent to oppress my fellow
citizens without experiment and absolute necessity.
Mr. Benson observed, that if the clause is uruck out of the
bill, it will involve an abandonment of judicial proceedings on the
part of the United States altogether, except in cases of appeals.—
1 he difficulties which may arise in this cafe, are notjuftlycharge
able to the bill itfelf, they are owing entirely to the constitution—
lor that is exprefs,that the general government fhallexercifeallju
dicial powers : This Legislature therefore, have it not at their op
tion to establish judicial courts, or not : The words of the system,
are plain and full; and the institution of the courts, arise out of
the very nature of the government: How far the operation of this
powci may extend, it isnot for us to determine: Whether it will
interfere with the State judicatories is a matter that must be the re
of experiment—Some gentlemen suppose it will, and it may
be that it will involve the aflumption of the whole judicial power;
but still the clause docs nothing more than take up the letter and
spirit of the conflitution.
Mr. Sedgwick observed, that the gentleman will find as great
difficulties to arise upon his plan, as upon that proposed in the
bill—and this is obvious—we are so circumstanced that two dit
tinft independent powers of judicial proceedings doexift ;and
not fee how we shall get rid of the difficulty, if it is one, till there
shall be a change in the constitution. I did not fuppofethatat thi>
day, it was a question whether this government is to exercife aU
the powers of a government, or not? I did conceive that such
an idea had no exiftcnce in any gentleman's mind—but Sir, wha
does the present motion import ? Its consequences go to divel*
ing government of a power, without which its authority is but J
fliadow. It is necefTary to the completion of any system of g° v
eminent, that it should possess every power necefTary to carry' ts
laws and ordinances into execution. But by the gentleman V
it is to be left to the determination of an authority, which a "* in ..
dependently of this legislature, whether the laws of the union j
be executed or no. Mr. Sedgwick then touched upon the
difficulties that would arise from giving the state courts cognizance
of federal questions —He also adverted to the conduct of the ltate
legislatures,(the creators of state courts and judges) in refp e 1
infra&ions and violations of contrails, See. by which the ~ nltc *
States had been humbled from the pinnacle of glory* to oW c
state of degradation. Under the impression of these conn er
tions, said he, can it be supposed that this government can exu
with any degree of reputation, and dignity without the
establishing its own tribunals, and inllituting its ownjudicia P
ceedings? It appears to me as neceflary that they should p°
this power, as that they should be United in order to their exi
ence as a nation. . c
Mr. Ames : The remarks which gentlemen have made °n
importance of this question will be of some use in deciding i •
judicial power is in fact highly important to the govern .
to the people : To the government because by this means, i
are peaceably carried into execution. We know by exp
what a wretched system that is which is divefled nation*
We fee the difference between a treaty which independent i
make, and which cannot be enforced without war, a ". 2( | c
which is the will of the society. A refractory individua i