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Article 3, Section 2, Clause 1



Document 27

A Native of Virginia, Observations upon the Proposed Plan of Federal Government

1788Monroe Writings 1:384--87

No part of the Constitution seems to have been so little understood, or so purposely misconstrued, as this article. Its enemies have mustered all their forces against the Federal Court; and have loudly sounded the trumpet, for the benevolent purpose of alarming the good people of Virginia, with the fears of visionary danger and imaginary oppression. They have told them the Federal Court, like Aron's rod, would swallow up all the judiciary authority of the respective States. That a citizen of Virginia may be forced to Philadelphia for a debt of 5l. although it was contracted with a fellow citizen: And, above all, that the trial by jury is not preserved. In a word, it is the Federal Court that is to be made the great instrument of tyranny.

These indeed would be serious objections were they well founded.

It is on all hands admitted, that a Federal Court is necessary, for a variety of purposes, and under a variety of circumstances.

The only question then is, whether the enumeration of the cases assigned to the Federal Court, by this article, is likely to produce oppression? Or if there be any ground to apprehend that Congress will not, by law, provide a remedy for all probable hardships, and render the federal jurisdiction convenient to every part of the United States?

There has been no objection raised to the Federal Court having original jurisdiction, in all cases respecting public Ministers, and where a State may be a party: and these are the only cases wherein it has original jurisdiction. In these cases, in controversies between two or more States, and between a State and citizens of another State, and between citizens of the same claiming lands under grants of different States, the present Congress have the right of determining. Here the Judiciary is blended in an eminent degree with the Legislative authority; a strong reason, among many others, for new modeling that unskilfully organized body.

The Convention sensible of this defect, has wisely assigned the cognizance of these and other controversies to a proper tribunal, a Court of Law.

Among these controversies, there is but one possible case where a dispute between two citizens of the same State can be carried, even by appeal, to the Federal Court; and that is, when they claim the same land under grants from different States. As their title is derived through States, this case is precisely within the reason which applies to controversies wherein two States are parties.

Notwithstanding this, we are told that in the most ordinary cases, a citizen of Virginia may be dragged within the appellate jurisdiction of the Federal Court, although the transaction which gave rise to the controversy originated between fellow citizens. This, it is said, may be effected, by assigning a bond, for instance, given by one fellow citizen to another, either to a foreigner or a citizen of another State. To this I answer, that such assignment would not be attended with any such consequence; because it is a principle in law, that the assignee stands in the place of the assignor; and is neither in a better nor a worse condition. It is likewise asserted, that if two citizens of the same State claim lands lying in a different State, that their suit may be carried to the Federal Court for final determination. This assertion is equally groundless. For this being a local action, it must be determined in the State wherein the lands lie.

And I repeat it again, because it cannot be too often repeated, that but one possible case exists, where a controversy between citizens of the same State can be carried into the Federal Court. How then is it possible that the Federal Court can ever swallow up the State jurisdictions, or be converted to the purposes of oppression.

Several reasons occur why the Federal Court should possess an appellate jurisdiction in controversies between foreigners and citizens, and between the citizens of different States. A foreigner should have the privilege of carrying his suit to the Federal Court, as well for the sake of justice, as from political motives. Were he confined to seek redress in the tribunal of that State, wherein he received the injury, he might not obtain it, from the influence of his adversary; and by giving him this additional and certain means of obtaining justice, foreigners will be encouraged to trade with us, to give us credit, and to employ their capitals in our country. These controversies must for the most part arise from commercial transactions, by which the bulk of the people can be seldom effected. The first part of this reasoning equally applies to controversies between citizens of different States. Besides, were the jurisdiction of the Federal Court not coextensive with the government itself, as far as foreigners are concerned, a controversy between individuals might produce a national quarrel, which commencing in reprisals, would probably terminate in war. Suppose a subject of France or Great Britain should complain to the Minister residing at the seat of Congress, that it was impossible to obtain justice in a Court of Law, in Virginia, for instance. The minister represents the matter to his Court. That Court will apply to the Congress, not to the individual State, for redress. Congress replies, "we lament that it is not in our power to remedy the evil; but we have no authority over the jurisprudence of the State." Is it probable that such an answer will be satisfactory to powerful nations? Will they not say "we must take that redress by force which your feeble government denies us? We are under the necessity of seizing American property wherever we can lay our hands upon it, till the just demands of our subjects are satisfied."

Those objectors who are so much alarmed for the trial by jury, seem little acquainted either with the origin or use of that celebrated mode of trial.

I will take leave to inform them, that by our laws a variety of important causes are daily determined without the intervention of a jury, not only in the Court of Chancery, but in those of common law; and that by several of our Acts of Assembly, the General Court has a power of assessing fines as high as 500l. for inconsiderable delinquencies, without the intervention of a jury, even to find the fact.

As I have before observed, these causes will be from the nature of things, generally mercantile disputes; must be matters of account, which will be referred to commissioners, as is the practice of all common law Courts in similar cases. Whenever it may be necessary that the facts should be stated, no doubt they will be found by a jury of the State, from whence the cause is carried; and will be made a part of the record.

In criminal cases, the trial by jury is most important. In criminal cases the Constitution has established it unequivocally. But in having only recognized this trial in criminal, it by no means follows that it takes it away in civil cases: And we may fairly presume, that by the law which the Congress will make to compleat the system of the Federal Court, it will be introduced, as far as it shall be found practicable, and applicable to such controversies as from their nature are subjects proper to be determined in that Court.


The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 27
http://press-pubs.uchicago.edu/founders/documents/a3_2_1s27.html
The University of Chicago Press

The Writings of James Monroe. Edited by Stanislaus Murray Hamilton. 7 vols. New York and London: G. P. Putnam's Sons, 1898--1903.

Easy to print version.


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