Article 3, Section 2, Clause 1

Document 46

House of Representatives, Judiciary Bill

Mr. Dennis . . . As to the expediency of delegating Judicial powers to the State courts, it presented a more difficult inquiry. It was certainly a kind of clumsy affair. Under all other Governments the Judicial authority was at least coextensive with the Legislative; and in many Governments it went beyond it in a decision of cases under the law of nations.

Besides, Mr. D. discerned no way of compelling State Judges to perform their duty; and there appeared to be peculiar hardships in obliging courts and juries, supported by particular counties, to perform Federal duties.

Mr. Harper had as little doubt of the Constitutionality as he had of the expediency of this delegation of power. At present we are not under the necessity of establishing a Judicial system as extensive as the powers of Congress. If we were constitutionally obliged to do this, we should be compelled to cover the whole ground, and to institute a great number of new courts. It is true that we cannot enforce on the State courts, as a matter of duty, a performance of the acts we confide to them; but we give them the power, and until they refuse to exercise it, we have no cause to complain. He did not believe this proviso necessary. But as some gentlemen thought it was necessary, he would vote for it.

Mr. Bird declared himself still of opinion, that the delegation of Judicial power to the State courts was unconstitutional. This is denied by the gentleman from Maryland. The argument he makes use of stands thus: He denies the unconstitutionality of the transfer, because we have practised it; therefore we have the power. Is this correct reasoning? Does the practice of a particular thing demonstrate it to be right?

The extreme difficulty of stretching out Judicial power in federal tribunals, which was alleged, was not a question of right, but of expediency. If it were a question of right, then must the question of right, as superior, supersede the minor question of expediency.

Some gentlemen seemed to think that, as soon as Congress pass a particular law, there exists a right and a duty in the State courts to execute it. But our own practice destroys this idea; for all our laws on the subject actually give power to the State courts; the expression is, "they may have jurisdiction in certain cases."

It had been asked, whether the laws of the United States did not bind the State Judges? He answered that they bound them as citizens but not as Judges. Even the gentleman from South Carolina admits that there is no obligation imposed upon them to act. This furnished a strong argument of the inconsistency of gentlemen, as the Judges were neither bound to execute our laws nor punishable for omitting to execute them. Further, the institution of a Judiciary coextensive with the other branches of the Government, was essential to the due administration of all just plans of civil policy. On the Judiciary depended the fair administration of justice. It was an organ of essential use and necessity. It should be attached to the system of which it formed a part, independently of all other systems. As well might the organ of one human body expect to derive support from the organ of another disconnected body, as the Federal Judiciary expect to gain support from State tribunals. So thought the framers of the Constitution; and a cotemporaneous commentator on it has declared that a Judiciary coextensive with the Legislature is so natural as not to require argument to support it.

Mr. B. then went over the same ground with that taken by him in a former debate.

He concluded by declaring that, until the point was better cleared of Constitutional objections, all arguments of inexpediency were perfectly futile.

Mr. Nott said, the simple question was, whether the Congress of the United States had or had not the Constitutional right of transferring to the State judicatories the power of trying causes arising under the Constitution or laws of the United States. In discussing this question he should not consider the consequences resulting from the decision, for although the consequences might be as his colleague (Mr. Harper) had represented, that the Judiciary of the United States must be made coextensive with the State judiciaries, if this power was not admitted, yet if so the Constitution was written, so it must be understood. The Constitution could not be bent as convenience might require. The decision, therefore, must be made by the instrument itself.

The Constitution provided that the Judicial power of the United States should be vested in one Supreme Court and such inferior courts as the Congress might from time to time ordain and establish; and also that they should hold their offices during good behaviour, &c.

Mr. N. said, the clause in the Constitution requiring inferior courts, was equally imperative with that requiring a Supreme Court, with this difference only, that the Supreme Court was limited to one, but the details of the inferior courts were left to Congress. The expression "inferior courts" was a technical expression, as well understood by every lawyer as any in our law books. It meant a court possessed of subordinate powers within the same Judiciary system, and necessarily implied a superior court, capable of controlling an undue exercise of those powers; that the State Legislatures might with as much propriety be called inferior to the Federal Legislature, or the Executive of any State be called a subordinate officer of the President of the United States, as the State courts could be considered inferior courts of the United States.

The words in the Constitution were, "such inferior courts as Congress may ordain and establish;" and it was not sufficient to say that by giving the power to try causes arising under the Constitution;. &c., you, quo ad hoc, made them courts of the United States; for there was an essential difference between ordaining and establishing courts and transferring power to courts already ordained and established. The obvious meaning of the Constitution, was that the Judicial power of the United States should be confided to courts established and organized by their own Government. Besides, Mr. N. observed, it was required that the Judges should hold their offices during good behaviour; but this was not the case in the several States; in some, he said, they held their commissions for a limited time; in others during the pleasure of the Legislature, and in others they could not hold them after a certain period of life.

There was another objection, he said, to this mode of appointing officers of the United States. The Constitution has provided that the President should appoint all the officers of the United States not otherwise appointed by the Constitution, except Congress should by law provide otherwise, as mentioned in the same clause of the Constitution. The Judges were not, however, of that description of officers contemplated by the Constitution, the appointment of whom Congress might vest in some other department, and if they were, that power had never yet been exercised by Congress. This, in effect, would be to divest the President of the power given him by the Constitution of appointing all officers, and to exercise it ourselves.

The doctrine he contended for would be further obvious by a reference to the second section of the third article of the Constitution, expressing the cases to which the Judicial power of the United States should extend. . . .

He said there was a marked difference between the words of the Constitution relating to the catalogue of cases enumerated in the first part of that section, and those in the latter part of the same. The word "all" was prefixed to each of the cases first mentioned, down to the words "admiralty and maritime jurisdiction" inclusive, but was omitted in all the subsequent cases. He could see no reason why that word was added in the former part of the section, and omitted in the latter, except it meant that there was no case of the former description to which the Judicial power of the United States should not extend; in fact that the courts of the United States should have exclusive jurisdiction of all those cases, and in the latter their jurisdiction should be concurrent with the State courts.

It was further to be observed, he said, that the first description of cases here enumerated, were such as had received their birth from the Constitution and laws of the United States, and could not have existed previous to the establishment of the Government, or be such as immediately involved the rights and interests of the General Government; but that the latter were such as the individual States might have jurisdiction of, previous to that period. He presumed the State courts were not vested with more power under the present Constitution than they were before, unless given them by the Constitution; nor are they divested of any, unless by the same instrument, or by Congress, in pursuance of the power therein given to them. And he had seen no part of the Constitution that delegated this power to the State courts, or that authorized Congress to do it. It appeared to him that the meaning of the Constitution was to give to the courts of the United States exclusive jurisdiction over cases arising under the Constitution or laws of the United States, and also over all cases immediately affecting the general interests, and to reserve to the individual States the exclusive jurisdiction over their own local concerns; and that in cases involving their own interest and the rights of others, they might have concurrent jurisdiction. It was acknowledged by the gentleman from Delaware (Mr. Bayard) that Congress had no power to compel the State courts to perform that duty, but that the Judges of the several States were bound to obey all the acts of Congress. Other gentlemen had observed, that this doctrine would go to deny that the stamp act, or any similar act, was binding on the State Judiciaries. On this Mr. N. observed, that the State courts were bound to observe all the Constitutional laws of Congress. When, therefore, Congress passed a law that no instrument of writing for the payment of money should be received in any State court as evidence of such debt, unless the same was upon stamped paper, the Judges were bound to obey it; but if they should pass a law giving power to any county court within the United States, to try persons guilty of treason against the United States, that law would not be obligatory upon them; nevertheless, it would be an act of Congress. Mr. N. said, the distinction was between cases arising under the Constitution and laws of the United States, and those that did not. His idea might be further illustrated by the act above mentioned (the stamp act.) If a person should give a note of hand for a hundred dollars on unstamped paper, with a view of evading that act, he was liable to a penalty; that would of course be a case arising under a law of the United States, and would be exclusively cognizable in the courts of the United States. But an action brought on a note of hand written on stamped paper, is not a case arising under the law of the United States, but arises from the contract itself; and, although no note had been given, the contract would, nevertheless, have existed. The stamp act does not require a contract to be in writing; but if people will have their contracts tested by written evidence, it requires that paper should be stamped.

Mr. N. said, wherever a duty was enjoined by law, the person who was guilty of the non-performance of that duty incurred the penalty annexed, and that penalty could be recovered no other way but by indictment, unless otherwise expressly provided by the law itself. And how would gentlemen frame an indictment in a State court, to embrace a case that had occurred under a law of the United States? It was essential in every indictment, to lay the offence to have been committed against the law of the State, and to conclude against the peace and dignity of the same. But, surely, gentlemen would not contend that an offence against a law of the United States was an offence against the law of an individual State, or against its peace and dignity. The gentleman from Delaware (Mr. Bayard) had observed that penalties incurred under the revenue laws were not considered as crimes, but were recoverable in actions of debt. But, said Mr. N., merely changing the action or the mode of recovering the penalty cannot alter the nature of the offence, nor the tribunal before whom it is to be tried. It was still a case arising under a law of the United States, and although a debt, it was one in which the defendant not even in contemplation of law had any agency. And to contend that because a penalty is by an act of Congress recoverable by an action of debt, therefore they have a right to transfer these cases to the State courts for adjudication, is to say that Congress may first give themselves the power to delegate it, and then exercise the power that is acquired.

But, said Mr. N., if it is true that Congress have a right to impose this duty on the Judges of the State courts, they must have the right to compel a performance of it. It was incompatible with the idea of sovereignty, to pass laws and not to have the power and the means of carrying them into execution.

Upon the whole, he had seen no part of the Constitution that authorized Congress to delegate such power to the State courts, or that authorized the State courts to execute it, and he should therefore vote against the proposed amendment.

Mr. Bayard considered the question of the delegation of power altogether misapplied. The proviso moved by the gentleman from Maryland related to the jurisdiction of the State courts, not over offences, but over civil suits, which were brought by the United States for debts arising out of contracts with the individuals indebted to the Government. Now, it would puzzle him to say why the State courts should not decide cases in which the United States were a party, as well as in any other description of cases, when it was known that their jurisdiction extended over all actions for debt.

The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 46
http://press-pubs.uchicago.edu/founders/documents/a3_2_1s46.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

Easy to print version.