Gazette of the United-States. (New-York [N.Y.]) 1789-1793, September 05, 1789, Page 166, Image 2

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    ®£inidn. and lam convinced experience will prove
*t, there will, nor can be no suit or action brought
in any of the State courts but may under this clause
be reverfcd or affirmed by beingbrought within the
cognizance of the supreme court. But should there
be fonie exceptions for the present, yet Sir, the
precedent is so forcible, for it goes so far as even
to admit of constructions that under fonie con
itruction or other, of some of the articles, those
articles wiH in time be totally loft. Sir,let us look
at the court of exchequer in England—Revenue
trials at firll engrolied its whole attention—from
a series of fiction there is now 110 personal ac
tion but from conltruction may be brought with
in their cognizance—lt is only to suggest, and
very seldom true that the plaintiff is a kings debt
or and the avtion is well grounded—Yet there
they have counter checks and another resort—
here the supreme court is final. Sir, the gen
tleman from South-Carolina [Mr. Burke] was
right in declaring a resident on lake Erie might
dragged to York for trial, as that on the
Oconee to Savannah. Nay, Sir, 1 know not how
far in time a nianmight not be dragged from the
Oconee to be tried in North-Carolina; for one
part of the bill-, without fpecifying the spot, de
clares that the circuit courts shall have power to
hold special felfions for the trial of criminal causes
at their discretion. On thole considerations I
hope the House will not adopt the present fyf
tein until the milder one is tried. It is calculat
ed to harrafs and foment the people, without an
fvvering any essential purpose.
fN. B. In Mr. Jukfon's fpeeeh in our lajl, middle column, inline
injieadof " the firfl he has brought forward," tfad the firft I lhall
notice and mjleaaof LL the firji privilege of everyggovernment"t t " read
the firft principle of every government.^
Mr. Smith (S. C.)~ AH the difficulties and in
conveniences which the gentlemen have started
as' arising from the cftablHhinent of a district
court arise from the government itfelf. All the
objections made to this court apply equally a
gainst having any national judicature. Indeed
it they had any weight they woidd as forcibly
apply againll: the very institution which the gen
tlemen patronize, viz. a court of admiralty and
piracy. If there is to be this perpetual clashing
of jurifdicftions between the federal and State
courts, this eternal jarring between their respec
tive officers, will not these embarrassments exill
under any judicial system which the ingenuity of
man can devjfe ? Will they not take place un
der the establishment proposed by the other fide ;
and will the mere alteration of the court from a
district to a court of admiralty and piracy reme
dy the evil ? But these objections come too late ;
a national government is established—the judi
cial power is a component part of that govern
ment, and mult be coinmenfurate to it. If we
have a government pervading the Union, we
inuft have a judicial power of similar magnitude :
We must eftab'ifh courts in every part of the
Union. The only question is, which is the plan
best calculated to answer the great objects we
all have in view, the carrying the judicial powers
into operation with the least inconvenience to the
citizens. This double system of jurisprudence
is unavoidable ; it is as much a part of the Conlli
tution as the double system of legislation ; each
State has a legislative power, and the Congress
has a legislative power, both operating on the
fame persons, and in many cases on the fame ob
jects : It is infinitely more difficult to mark with
precision the limits of the legislative than of the
judicial power: No one however disputed the
propriety of vetting Congress with a legislative
power over the Union, and yet that power is per
haps more liable to abuse than the judicial. It has
been indeed contended in some of the State Con
ventions that Congress ought not to be intrusted
with direct taxation ; and it is remarkable that
the fame obstacles were urged against that pow
er which are now suggested against this institu
tion. It was then said that federal and State
taxes could not operate at the fame time without
confufion ; it was then facetioully aiked, whe
ther the Congrefiional and the State collector
who had seized a horse for the payment of taxes
were to divide him between them ; it is now afk
cd with equal pleasantry, whether the marshal
of the district court and the flieriff of the State
court who have taken the fame debtor in execu
tion are to cut him in halves.—lt was then an
swered, that if the State collector seized the horse
firft, he will have the firft fatisfacftion : It was
alf'o shewn that there are frequently in the fame
State, State taxes, county taxes, and corporation
taxes, and that these never occasioned any clash
ing or confufion : It may now be answered that
there are at present in some of the States, State
conrts, county courts, and corporation courts ;
and that these are found convenient, and unac
companied with the clashing so much apprehend
ed. They keep within their particular spheres,
and have their limits ascertained. Bur, in an
fwer'to one fuppofirion allow me toftate another :
Suppose a State flieriff and a county fheriff
ihouldl'eizetne fame debtor, would he be parcel
led out between them ? would not the execu'-ion
which was firft-ferved take effect ? Is not this the
practice at present, and will it not be so under
this system ? It is very easy for gentlemen in the
warmth of their imaginations to suppose a varie
ty of cases, and to raise a multiplicity of objec
tions against any fyftein of jurisprudence whate
ver: They will all be more or lei's liable to some
objection on the lcore of inconvenience, but they
are submitted to by good citizens who are fenli
ble 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
diffprfo widely as was imagined, for the gentle
men who advocate the motion,concede tlienecef
fity of some inferior federal court in each State :
this clause does nothing more than establish an
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 thein, it will be very easy to amend
the clause in that reflect; but why 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 ofjurifdiction is premature,
and ought to be reserved for the clause which as
certains the jurifdi(ftion ; if upon an inveftiga
lion of that clause, it shall appear that it ought
to be reftriited, that will be the seasonable time
for moving to strike out the exceptionable part,
but really at present gentlemen are making ob
jections to one clause which, from their own con
ceflions, apply altogether to another. As to se
veral other observations, which relate to the
time of holding the courts, and the mode of
drawing jurors, it is unneceflary to reply fully
to them at present, because it would be improper
to run into a discussion of the detail, while the
question is on the principle of the fyftein. lam
no less opposed to the time of holding the courts
and the mode of drawing jurors, provided by
the bill, thanthe gentleman from whom the ob
jection came, and I shall add my endeavors to his,
to effect an alteration in these points ; but this is
not the proper time, we are now on the princi
ple, whether there (hall be a district court; The
fame answer will apply to the objection that the
juries and witnefles will be unneceflarily harraf
fed ; every care will be taken to accommodate
these courts to the convenience of the citizens of
each State.
Several other difficulties hare been urged as
growing out of this plan of jurisprudence ; a can
did difcuflion will remove and obviate them. It
has been said, that the bill provides a number of
appeals from the State to the supreme court,
through the district and circuit courts, and that
the suitors may be persecuted with appeals car
ried on from one court to another, through four
different courts. An attentive examination of
the bill is a fufficient answer to this objection :
There is no appeal from the State to the district
court, and only a power of removal in certain
cases of a federal jurisdiction from the State to
the circuit court: neither is there any appeal
of fact from the district to the circuit court, but
in admiralty causes, and these cannot be after
wards carried up to the supreme court but where
the value exceeds 2000 dollars.
It has been said that under the idea of vicin
age, 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 Constitution
al 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 ohferved that the Constitu
tion is 110 bar to veiling the State courts with
federal powers, for the words " such inferior
courts as Congress shall from time to time eftab
lilh," imply that Congress may notinftitute thein,
and if they are not iiiftituted, these powers must
of course remain with the State courts : In reply
to this argument it is to be obferved,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 ofexpreffion empowering Congress
to institute such a number of inferior courts, of
such particular conftrucftion, and at such parti -
cular places as shall be found expedient: In short
in the words of the Constitution, Congreft may
establish such inferior courts as may appear re
quisite. But that Congress must eftabliih some
inferior Courts is beyond a doubt: In the firft
place, the Constitution declares that the judicial
power of the United States shall be vested in a
supreme and in inferior courts. The words
shall be vested" have great energy, they are
terms of command ; they leave no discretion to
Congress to parcel out the judicial powers of the
Union to State judicatures, where a discretion
ary power is left to Congress by the Constitution,
the word "may" is employed, where no discre
tion is left, the word "ihall" is the appropriate
term; this distinction is cautiously observed.
Again, the Supreme Court in two cases only has
original in all others itlias appellate jurisdiction ;
but where is the appeal to come from ? Certainly
not from the State courts; it must come from a
federal tiibunal. There is another argument
which appears conclusive : Tlio Constitution pro
vides that the judges of the Supreme and inferior
courts shall hold their commiflions during good
behavior and /hall receive falariesnot capable of
diminution, and ii further provides that the ju
dicial power of the Union shall be veiled in a
Supreme and inferior courts ; that is in aSunrem
and inferior courts whose judges thai 1 are to ] '
comtniffions during goo d behaviour and le ' r
pollels salaries not liable to diminution
Does not then the Constitution in the P l ainp(v
andn.oft unequivocal language preclude
allotting any part of the judicial authority O fZ
Union to the State judicatures' The bill • •
said, is then unconstitutional, for it recomii,'a*
authority of the State courts in that clause whiA
empowers the Supreme Court to overturn the 7
ci lions of the State Courts when thole decifil
are repugnant to the laws or Conftitntion
the United States. This is no recognition
any such authority, it is a neceffaryprovifi„,
to guard the rights of the Union against the n
vafion ofthe States Isa State court Ihould ufum
jurifdicftion of federal causes, and by its J
judications attempt to strip the federal Govern'
ment of its Constitutional rights, it is necellarv
that the national tribunal should poilbfs the Po \v
er of protecting those rights from such invalkm
1 he committee have been told that thismultipli'
cation of courts, and of appeals will diftrefsth
citizens ; and the number of appeals in Great
Britain have been alluded to. 1 have always
heard that there is no country in' the world
where justice is better administered than in that
country ; to its excellent and impartial admimftra
tion the profpei ity, freedom and civil rights of
its citizens have been attributed: Were appeals
too much restrained in this country, linuchqucf.
tion whether a great clamor would not beraifed
against luch a rellritftion : Thecitiziens of afree
country, when they lose their cause in one
court, like to try their chance in another: This
is a privilege they consider themselves justly in
titled to, and if a litigious man harrafles his ad
versary by vexatious appeals, lie is fufficiently
punished for it by having the colts to pay. By
limiting appeals to the Supreme Court to funis
above iooo dollars, as is proposed, the poor will
be protected from being liarrafled by appeals to
the Supreme Court.
There is one more observation Which requires
an anfwer:—lt was said that the juries, might
be dragged from one end of a State to another;
provision is expressly made against this in the
bill ; it is there enaifled that the juries fliall be
so drawn as to occasion the smallest inconveni
ence to the citizens. After having very mature
ly confulered the fubjei/t and attentively examin
ed the bill in all its modifications, and heard all
that has been alledged on this occasion, lam per
fectly convinced that, whatever defeats may be
discovered in other parts of the bill, the adoption
of this motion would tendto the rejection of every
system of national jurisprudence.
[7fo remainder of this debate in our next\
A petition from the citizens of Philadelphia refpe&ing the
permanent and temporary residence of Congress was read.
The petition of the creditors of the United States residing in
the city of Philadelphia, was refered to the committee ofways
and means.
Mr. Viking then brought forward his motion refpeftingthe
validity of the Jersey election. in a new form, viz. " Resolved,
that James Schureman, Lambert Cadwallader, Elias Boudmot, and
Thomas Sinnukfon, were duly and properly returned mem
bers of this House."
Mr. Sherman madea number of observations in fupportof
the validity of the election.
Mr. Smith (S. C.) spake on the fame fide. The following is
the substance ot his argument :
This is a fubjeft which requires considerable attention. I con.
fefs I had doubts yesterday. I have since made up my opinion.
It appears to me the matter turns on the conftruttion of the law
of New-Jersey. I n the firft place the law admits of a conftru&oa
that the returns ought to be made, and the elettion announced oa
the third of March.
It admits of another conftru&ion, that the ele&ion ought not to
be declared,till all the returns from all the counties in the State were
made, We must give the law a reasonable conftru&ion. It ap
pears from the preamble, that the cle&ion (hould be declared the
third of March, because it mentions that the Constitution Ihould
begin to operate on the fourth of March, and the preamble im
plies that the eleflion should be made known at that time. There
is no particular time prescribed when the returns (hall be made;
but it appears that there is a reference to the practice and usage
of the State. Now by the law regulating the ele&ion of there*
prefentatives in the State LegiHature, there appears to be no time
limited for the returns of the ele&ion. It appears also that this
conftru&ion was given by the who made their re
turns previous to the fourth of March. It appears also, that the
Governor had this in idea by fummoningtheCouncil. These obser
vations were made yesterday, and they had weight on my mm •
In answer to this conftruttion it may be said, that it is done
away by the ast which declares that the Governor and C°" nc
shall call up the votes from the whole of the returns of w thc
counties, and therefore the fourth of March was not the proper
time, unless the returns were all then made, which it is proha e
was contemplated at the time of the pafling of the law. Itvvw
appear that absurdities will follow from either of the conltruc
tions. If you take the firft, it might so have happened that n»
county may have made the returns. Would it then have been in
quired that the Governor should declare the election ? or that
Governor (hould decide on the votes of one county, if on) jj
had returned? On the other hand to wait till all the returns 2
been made would be, equally absurd, because it would be m
power of one county to defeatthe election.
The cjueftion then is, whether the executive power has no
discretion ; and whether he ought not to exercise thatde cre '
to carry the law into execution ?—lf this is admitted,
question arises, whether the executive exercised that dilcretio
<1 juftifiable manner. It appears that the Governor, preMO"
the third of March, summoned the council and laid before
the returns on that day. But it seems also that the ™ov.
rliought it probable that all the returns would not thenibeina
As on the third of March,there were only the returns of seven
ties made : As it was merely matter of conftru&ion,it, a FP ea c cTe .
that the Governor and Council had a right to exerC e r Lj e t iine
tion, in poftpbning the determination for such a reafona
as would allow the returns to be feni in ; and that this 15
thole cafcs where the executive may properly interpolc itsu