Article 3, Section 1

Document 13

House of Representatives, The Judiciary

[29 Aug.]

Mr. Livermore. . . . He wished Congress to establish State Courts of Admiralty, and reject this system, because it would be attended with great inconvenience and expense. The salaries of thirteen district judges, and the necessary buildings for their accommodation, is no inconsiderable saving to a people oppressed so severely by the burthens of the late war. But an objection, in my mind, of greater weight is, that you establish two jurisdictions in the same place. The bill proposes that the State courts shall have concurrent jurisdiction with the district courts. Now under these two establishments debtors may be worried and distressed more than is necessary for the plain and simple administration of justice. A debtor may be in the custody of a State officer, or he may be committed to prison; at the same time there comes an officer from the continental court, what is to be done with the unfortunate person? Is the man to be divided, that one half may appear in one court, the other in another? Can you force the prison, and take him into other custody? or can you compel him to attend a court on the return of the writ, if he is not in your power? If this can be done, your system will furnish opportunities for collusion. A person may be in confinement for an actual debt sued in the State courts, when the marshal of the district shall wrest him out of the hands of the sheriff for a fictitious debt, intended to operate as a rescue. Perhaps gentlemen may think the same jail will answer for both; but you cannot have two keepers of the same jail, and one will refuse to obey a foreign authority. If these objections could be obviated, I should think more favorably of the bill. But, for my part, I cannot see how it is possible. We have supported the Union for thirteen or fourteen years without such courts, from which I infer that they are not necessary, or we should have discovered the inconvenience of being without them; yet I believe Congress have always had ample justice done in all their claims; at least, as I said before, I never heard any complaint, except the case of an appeal on a capture. Now, if we have a Supreme Court, to which appeals can be carried, and an Admiralty Court for deciding cases of a maritime nature, our system will be useful and complete. Why should we suppose that the administration of justice will not be continued with its wonted impartiality? Suppose a merchant gives a bond to pay one hundred dollars duty, cannot that bond be recovered as well and speedily in the State courts as in any continental court whatever? But admitting the judges may be partial, will not the same jury be employed? The jurors must come from the vicinage, and in all probability the district judges will be composed of gentlemen who preside on the benches of the State [Volume 4, Page 146] courts. Now, in this case, it is the same to the Government, to foreigners, and to citizens. But if a distinction is necessary, it can only be with respect to maritime affairs, dependent on the law of nations; and for this reason we mean to make a provision by instituting Courts of Admiralty. If justice cannot be had here, there will be an appeal to the federal Supreme Court, which is all that can be required. Now, with respect to the expense of establishing these latter courts, it will not be a fiftieth part as much as the proposed institution, and its advantage and convenience will be a thousand times as great. The whole bill turns upon striking out this clause. If it is done, I intend to move one for the establishment of Courts of Admiralty, with some regulations respecting appeals.

Mr. Smith, (of South Carolina.)--As much will depend on the determination of this question, it is necessary it should be well considered by all the committee. It will not be easy to alter the system when once established. The judges are to hold their commissions during good behavior, and after they are appointed, they are only removable by impeachment; consequently this system must be a permanent one. The committee will not, therefore, determine that there shall be district courts until they have reflected seriously on the consequences attending their vote.

After this point is settled, the next which occurs is the extent of jurisdiction to be annexed to this court. This question is as important as the former; for it will be no less difficult than improper to enlarge or curtail the jurisdiction of a court already established.

With respect to the first point, it seems generally conceded that there ought to be a district court of some sort. The constitution, indeed, recognises such a court, because it speaks of "such inferior courts as the Congress shall establish;" and because it gives to the Supreme Court only appellate jurisdiction in most cases of a federal nature. But some gentlemen are of opinion that the district court should be altogether confined to admiralty causes; while others deem it expedient that it should be entrusted with a more enlarged jurisdiction; and should, in addition to admiralty causes, take cognizance of all causes of seizure on land, all breaches of impost laws, of offences committed on the high seas, and causes in which foreigners or citizens of other States are parties. The committee are now to decide between these two opinions. After mature reflection, I am inclined to favor the latter. What are the objections advanced against it? A gentleman from New Hampshire has observed, that such an establishment will be unnecessary, expensive, and disagreeable to our constituents. Justice, he observed, could be as well administered in the State as in the district courts; and should the State courts betray any symptoms of partiality, their adjudications would be subject to revision in the federal Supreme Court, which, in his opinion, afforded sufficient security. If the State courts are to take cognizance of those causes which, by the constitution, are declared to belong to the judicial courts of the United States, an appeal must lie in every case to the latter, otherwise the judicial authority of the Union might be altogether eluded. To deny such an appeal, would be to frustrate the most important objects of the Federal Government, and would obstruct its operations. The necessity of uniformity in the decision of the federal courts is obvious; to assimilate the principles of national decisions, and collect them, as it were, into one focus, appeals from all the State courts to the Supreme Court would be indispensable. It is, however, much to be apprehended that this constant control of the Supreme Federal Court over the adjudication of the State courts, would dissatisfy the people, and weaken the importance and authority of the State judges. Nay, more, it would lessen their respectability in the eyes of the people, even in causes which properly appertain to the State jurisdictions; because the people, being accustomed to see their decrees overhauled 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 possible, the State from the federal jurisdiction, to draw a broad line of distinction, to assign clearly to each its precise limits, and to prevent a clashing or interference between them. The expense is suggested as an objection to this system. It is admitted by the gentleman who makes it, that it is proper to have District Courts of Admiralty. These courts must, of necessity, have jurisdiction of offences committed on the high seas. Now the establishment of such a court will induce nearly all the expense that will be requisite; the extension of the system to the length I have stated will occasion a very trifling increase of the expense; and if, after due consideration, it should be found that the latter plan would be more conducive to the happiness and welfare of our constituents than the other, a small increase of the expense ought to be no impediment to the attainment of so valuable an object.

There can be no reason why our constituents should be displeased with the arrangement; the district judge will be elected from among the citizens of the State where he is to exercise his functions, and will feel every inducement to promote the happiness and protect the liberties of his fellow-citizens. He will be more independent than the State judges, holding his commission during good behavior, and not 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 district judge be under any bias, it is reasonable to suppose it would be rather in favor of his fellow-citizens, than in favor of foreigners, or the United States. By restricting the State courts to few causes of federal jurisdiction, the number of appeals will be diminished, because every cause tried in those courts will, for the reasons before mentioned, be subject to appeal; whereas the jurisdiction of the district court will be final in many cases. Inasmuch, therefore, as those appeals are grievous to the citizens, which lie from a court within their own State to the Supreme Court at the seat of Government, and at a great distance, they will consequently be benefited by an exemption from them. In the bill, as sent from the Senate, the jurisdiction of the district 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 difficult to take from that court any of its jurisdiction without materially injuring the whole judicial system, except the clause relating to consuls and vice-consuls, which appears to me to be improperly annexed [Volume 4, Page 147] to the district court, and which I shall move to strike out, when we come to that part of the bill. But to what objects do the district courts extend? To admiralty causes and trials for piracy committed on the high seas. Gentlemen have conceded that the district courts shall have jurisdiction of these cases--to offences against the United States.

It is very proper that a court in the United States should try offences committed against the United States. Every nation upon earth punishes by its own courts offences against its own laws. To seizures on land for breaches of the revenue laws, this power will not be censured; it would be felo de se to trust the collection of the revenue of the United States to the State judicatures. The disinclination of the judges to carry the law into effect, their disapprobation of a certain duty, the rules of the court, or other obvious causes, might delay or frustrate the collection of the revenue, and embarrass the National Government. From this view it appears that the district court is not clothed with any authority of which the State courts are stripped, but is barely provided with that authority which arises out of the establishment of a National Government, and which is indispensably necessary for its support. Can the State courts at this moment take cognizance of offences committed on the high seas? If they do, it is under an act of Congress, giving them jurisdiction; and, in such cases, the Judge of the Admiralty is associated 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 jurisdiction of causes arising from a national impost law, because no such law heretofore existed. Where, then, is the ground of uneasiness suggested by gentlemen? The foregoing observations must persuade them that their alarms have been premature. But it is said that there must be court-houses, judges, marshals, clerks, constables, jails, and gibbets; that these establishments will occasion a heavy and unnecessary burthen, and have a tendency to create disgust in the people.

I readily agree with the gentleman, that there are in every community some individuals who will see, with pain, every new institution in the shape of a constable, jail, or gibbet, and who think that law and courts are an abridgment of their liberty; but I should be very sorry to concur with him that this is a prevailing opinion. I think better of our constituents, and am persuaded they are sensible that those institutions are necessary for the protection of their lives and property; and grow out of the very nature of a federal Government. Care, indeed, should be taken to prevent their being grievous and oppressive; but as long as knaves and rogues exist in the world, and monsters under the form of men, preying upon the 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 a 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, clerks, sheriffs, &c.? There can be no doubt of it. The extension of the jurisdiction of the district court, as far as I think it necessary, will not occasion any one article of expense, or any one institution that will not be necessary on the gentleman's plan. To suppose that there will be a clashing of jurisdiction between the State and district courts on all occasions, by having a double set of officers, is to suppose the States will take a pleasure in thwarting the Federal Government; it is a supposition not warranted by our fellow-citizens, who, finding that these establishments were created for their benefit and protection, will rather promote than obstruct them; it is a supposition equally opposed to the power of direct taxation, and to the establishment of State and county courts which exist in the several States, and are productive of no such inconvenience. These several courts will have their limits defined, and will move within their respective orbits without any danger of deviation. Besides, I am not persuaded that there will be a necessity for having separate court-houses and jails; those already provided in the several States will be made use of by the district courts. I remember when the court for the trial of piracy, under the authority of Congress, was held at Charleston, the judges sat in the court-house; the prisoners were confined in the jail, were under the custody of the constable, and were executed by the orders of the sheriff of the district of Charleston. All these were State institutions, and yet the court was a federal court.

There is another important consideration; that is, how far the constitution stands in the way of this motion. It is declared by that instrument that the judicial power of the United States shall be vested in one supreme, and in such inferior courts as Congress shall from time to time establish. Here is no discretion, then, in Congress to vest the judicial power of the United States in any other tribunal than in the Supreme Court and the inferior courts of the United States. It is further declared that the judicial power of the United States shall extend to all cases of a particular description. How is that power to be administered? Undoubtedly by the tribunals of the United States; if the judicial power of the United States extends to those specified cases, it follows indisputably that the tribunals of the United States must likewise extend to them. What is the object of the motion? To assign the jurisdiction of some of these very cases to the State courts, to judges, who, in many instances, hold their places for a limited period; whereas, the constitution, for the greater security of the citizen, and to insure the independence of the federal judges, has expressly declared that they shall hold their commissions during good behavior. To judges who are exposed every year to a diminution of salary by the State Legislatures; whereas, the constitution, to remove from the federal judges all dependence on the Legislative or Executive, has protected them from any diminution of their compensation. Whether the expediency or the unconstitutionality of the motion be considered, there are more than sufficient reasons to oppose it. The district court is necessary, if we intend to adhere to the constitution, and to carry the Government into effect. At the same time, I shall cheerfully assist in organizing this court in that mode, which will prevent its being grievous or oppressive, and will render it conducive to the protection and happiness of our constituents.

Mr. Jackson said he conceived this to be the most important business that had as yet come before the House. It was what he had long considered, and had with difficulty decided, but upon mature consideration was impressed with the same sentiments as the gentleman from New Hampshire. It must be admitted that a society was formed before the rules that governed that society; and consequently the laws and rules were formed merely for the use of that society. In fact, the convenience of the people is, or ought to be, the first principle of every Government; and the people are entitled to expect it. Our present constitution has set out with this declaration, "We the people," in its preamble, and therefore, in the system before us, every attention of the Legislature ought to be drawn to this point. He apprehended, he said, that the system before them was not framed or calculated for that purpose, but appeared to be rather intended to destroy some of the most valuable and important privileges of the citizens. He did not wish to diminish the powers in the Federal Judiciary, which might be thought necessary, and commensurate to the carrying the Government fully into execution; but he considered the system as unnecessary, vexatious, and expensive, and calculated to destroy the harmony and confidence of the people.

The motion has been objected to by the gentleman from South Carolina, for striking out the clause, for several reasons; the first I shall notice is, "that in several of the States the judges are limited in their appointments; that inferior jurisdictions are required by the constitution; and that the State judges are not vested with permanent salaries." Those arguments, he observed, fell to the ground on referring to the constitution; the constitution, he said, did not absolutely require inferior jurisdictions; it says that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may, from time to time, ordain and establish." The word "may" is not positive, and it remains with Congress to determine what inferior jurisdictions may be necessary, and what they will ordain and establish; for if they choose or think that no inferior jurisdictions are necessary, there is no obligation to establish them. It then remains with the Legislature of the Union to examine the necessity or expediency of those courts only. On the subject of expediency, he said, for his part, he could not see it, and was of opinion that the State courts would answer every judiciary purpose.

The gentleman from South Carolina has again advanced "that if district and circuit courts are not adopted, the harmony of the States and of the people will be at stake, and that the system will be more vexatious by a series of appeals." He did not agree with that doctrine. He was persuaded that the harmony of the people, their liberties and properties, would be more secure under the legal paths of their ancestors; under their modes of trial, and known methods of decision. They have hitherto been accustomed to receive justice at their own doors in a simple form. The system before the House has a round of courts appellate from one to the other; and the poor man that is engaged with a rich opponent will be harassed in the most cruel manner; and although the sum be limited for appeals, yet the poor individual may have a legal right to a sum superior to that limitation, (say above a certain amount of dollars,) and not possess fortune sufficient to carry on his lawsuit; he must sink under the oppression of his richer neighbor. He was clearly of opinion that the people would much rather have but one appeal, which, he conceived, would answer every purpose; he meant from the State courts immediately to the Supreme Court of the continent. An Admiralty court of jurisdiction he would grant might be necessary for the trial of maritime affairs, and matters relative to the revenue; to which object he would cheerfully enlarge it; and thought for the present it would be far more eligible. The gentleman has likewise advanced that the expense would be as great without as with the inferior jurisdiction. He would beg leave to differ from him, and declared that it would be in the proportion of three to one; for although the clerk and marshal of the district courts are the officers proposed for the circuit courts, yet there would arise a train of inferior officers, consequently attendant on those officers and courts, exclusive of jurors, witnesses, &c. He has likewise advanced, that it would be necessary to prevent confusion; the line of distinction would be much easier preserved in the present state of the department, for many of the reasons pointed out by the gentleman from New Hampshire, exclusive of the difficulty of making new rules. But we are told, he said, it is necessary that every Government should have the power of executing its own laws. This argument would likewise fail, when we find that the constitution, treaties, and laws of the United States are, by the constitution itself, made the supreme laws of the land. Are not the judges of the different States bound by oath to support that supreme law? Will they not recollect those oaths, and be liable to punishment by your act, which has obliged them to take that oath, if they do not respect it as such? Assuredly they will; it is part of the compact formed with the States. But does there not remain the appellate jurisdiction of the Supreme Court to control them, and bring them to their reason? Can they not reverse or confirm the State decrees, as they may find them right or wrong? Consequently, this last argument falls to the ground.

That the system is vexatious can be easily proved, and is too obvious. An offender is dragged from his house, friends, and connexions, to a distant spot, where he is deprived of every advantage of former character, of relations and acquaintance; the right of trial by a jury of the vicinage is done away, and perhaps he is carried to a place where popular clamor might for the moment decide against him; or, if allowed a trial by vicinage, or his neighbors, it is equally vexatious to drag him two or three hundred miles from his home, with evidences to try and give testimony at a distant place; every thing is to be dreaded from it. This, he observed, was contrary to our wonted customs, and we need but revert to the history of Britain, after the conquest, to view what struggles that nation made against innovations of this nature. The monkish clergy joined with the kings to oppress the people, to establish civil law, and get the legal power into their own hands; the people took the alarm, and with the nobility contested the point, which was never finally settled until [Volume 4, Page 149] the great charter of John, which it was one of the causes of producing, and that fixed the ecclesiastical bounds. He would ask if our modes of trial must not be as dear to our fellow-citizens as theirs were to them, and if the same commotions may not be reasonably expected? He feared they would be found so. Is it proper we should be so suspicious of the State judges? He could not, he said, for his part, consider human nature so depraved, as to suppose that, with an oath to observe the supreme law of the land, the State judges would not obey it. In his opinion, it became us, as a wise Legislature, to take up and execute the least exceptionable and milder mode first. There was no requisition, no necessity from the constitution. If, on experiment, it should be found (and the House generally admits our laws are at present experimental) that sufficient attention is not paid, and that our Government requires for its existence a more energetic mode, he pledged himself to agree to any inferior jurisdictions that may be thought necessary for that purpose; but he never could consent to oppress his fellow-citizens without being taught by absolute necessity arising from experience.

Mr. Benson said, if the House decided in favor of the present question, it would involve a total abandonment of the judicial power, excepting those cases the honorable gentlemen mean to provide for, namely, the Courts of Admiralty and Supreme Courts. The honorable gentleman had observed that difficulties would arise out of the proposed establishment; but these difficulties or embarrassments are not to be charged to the House, they grow out of the constitution itself. The gentlemen suppose that two sovereign and independent authorities can never be exercised over the same territory; but this is not the business of the committee; they could not get rid of these difficulties by retrenching their powers; they must carry the constitution into effect. The gentleman has stated a case, in supposing that process shall issue from the State and continental courts, and both be served upon the defendant at the same time, and then asks what is to be done. Is the man to be divided? Now, in return, he would ask the same question; is the United States to abandon all its powers and jurisdiction, because the exercise of it may be attended with some inconvenience? As well might we ask individual States to abandon theirs, because there is some clashing with the Federal Judiciary. He apprehended that neither were to be abandoned, but that they should endeavor to administer both with as little inconvenience to either as was practicable.

It is not left to the election of the Legislature of the United States whether we adopt or not a judicial system like the one before us; the words in the constitution are plain and full, and must be carried into operation. He would not undertake to say that it was the best system that could be formed; but it had its advantages over some in which the honorable gentleman from New Hampshire (Mr. Livermore) had said that justice was well administered; he thought there was more reliance on judges who were appointed during good behavior, than on others appointed from session to session, and ever dependent on the will of the State Legislatures.

He left it to experience to show whether the Judiciaries would interfere or not; some gentlemen had predicted they would; it was possible that they might, and he did not know but that the interference would be of such a delicate nature, as to compel the United States to relinquish her portion; or, on the other hand, the States individually might consent that the judicial power should be solely exercised by the Union. But all this was wide of the question; the House had nothing more to do than to perform their duty, and carry the constitution into full operation.

Mr. Sedgwick said, the gentleman would find as many difficulties growing out of the substitute as those he apprehended from the plan on the table. He had asked what will be done with the prisoners if they are taken at the same time in consequence of processes from the national and State courts? I answer by asking him, what will be done with the prisoners if they are taken at the same time by a process from the Admiralty and State courts? The other difficulties he had apprehended were well replied to by the honorable gentleman from South Carolina; and I shall only remark, that we are so circumstanced that two distinct independent powers of judicial proceedings must exist; at least I do not see how we shall get rid of the difficulty, if it is one, until there shall be a change in the constitution.

I did not suppose it was a question at this day, whether this Government is to exercise all the powers of a Government or not. I did conceive, sir, that such an idea could exist in the mind of any gentleman; yet what is the object of the present motion? Sir, it goes to divest the Government of one of its most essential branches; if this is destroyed, your constitution is but the shadow of a Government.

Is it not essential that a Government possess within itself the power necessary to carry its laws into execution? But the honorable gentleman proposes to leave this business to a foreign authority, totally independent of this Legislature, whether our ordinances shall have efficacy or not. Would this be prudent, even if it were in our power? Suppose a State Government was inimical to the Federal Government, and its judges were attached to the same local policy, they might refuse or neglect to attend to the national business; they might be corrupt, and in either case the public might sustain an essential injury. And where would be your redress? Shall we apply to the State Legislatures that patronize them? Can we impeach or have them tried? If we can, how is the trial to be had; before a tribunal established by the State? Can we expect in this way to bring them to justice? Surely no gentleman supposes we can. These are not chimerical suppositions; they are founded in nature, and such as may be expected; indeed, facts have already occurred to prove to us how dangerous it would be to make the State Legislatures the sole guardians of the national faith and honor. Already have the United States been hurled down by those arms from a pinnacle of glory to the lowest state of degradation. The United States, after a glorious and successful struggle, in which they displayed a valor and patriotism astonishing the old world, secured their independence! and a single concession was the price of an honorable peace. The discharge of bona fide debts due from the citizens of America to the subjects of Britain [Volume 4, Page 150] was all that Britain required. Now, is it not obvious to every man, that this honorable stipulation ought by all means to be considered the supreme law of the land? Yet, what was the event? State after State, Legislature after Legislature, made laws and regulations in positive opposition to the treaty; and the State Judiciaries could not, or did not, decide contrary to their State ordinances. What have been the consequences of these proceedings? It ill becomes me at this time, when we hope to wipe off every ignominious stain, to recapitulate the evils it has drawn down upon the nation. But I hope they are sufficiently notorious to put us on our guard against trusting essential powers out of our hands, contrary to our duty, and contrary to the wishes of the people.

When we are certain that the Government cannot be organized without establishing its judicial tribunals; when we fear for its existence, (at least its existing with reputation and dignity,) unless we provide for the due execution of national laws and national treaties; shall we forego them because gentlemen apprehend some small difficulties from interfering process? Sir, it has been already demonstrated that the interference will be trifling, if any; it will be too small to authorize us to blast the expected benefits arising from a complete and efficient system of government.

Mr. Ames said, the remarks made by gentlemen on the importance of this question would be of some utility in deciding it. The judicial power is, in fact, highly important to the Government and to the people; to the Government, because by this means its laws are peaceably carried into execution. We know, by experience, what a wretched system that is which is divested of this power. We see the difference between a treaty which independent nations make, and which cannot be enforced without war, and a law which is the will of the society. A refractory individual is made to feel the weight of the whole community. A Government that may make but cannot enforce laws, cannot last long, nor do much good. By the power, too, the people are gainers. The administration of justice is the very performance of the social bargain on the part of Government. It is the reward of their toils; the equivalent for what they grant. They have to plant, to water, to manure the tree, and this the fruit of it. The argument, therefore, a priori, is strong against the motion; for while it weakens the Government, it defrauds the people. We live in a time of innovation; but until miracles shall become more common than ordinary events, and surprise us less than the usual course of nature, he should think it a wonderful felicity of invention to propose the expedient of hiring out our judicial power, and employing courts not amenable to our laws, instead of instituting them ourselves as the constitution requires. We might with as great propriety negotiate and assign over our legislative as our judicial power; and it would not be more strange to get the laws made for this body, than after their passage to get them interpreted and executed by those whom we do not appoint, and cannot control. The field of debate is wide; the time for consideration had been so ample, and that remaining for debate so short, that he would not enter fully into it. The gentleman from South Carolina (Mr. Smith) had very ably proved the expediency of the motion. He would confine himself, he said, to another point; and if it could be established, it would narrow the discussion.

The branches of the judicial power of the United States are the admiralty jurisdiction, the criminal jurisdiction, cognizance of certain common law cases, and of such as may be given by the statutes of Congress. The constitution, and the laws made in pursuance of it, are the supreme laws of the land. They prescribe a rule of action for individuals. If it is disputed whether an act done is right or wrong, reference must be had to this rule; and whether the action is compared with the rule of action in a State or Federal court, it is equally out of the power of the judges, to say that right is wrong, or that wrong is right. If a man is restrained of his liberty, and for that sues the officer of the General Government in a State court, the defendant shows that he was a marshal, and served a precept according to the law of the United States; then he must be cleared, otherwise the law of the United States would not be the law of the land. But there is a substantial difference between the jurisdiction of the courts and the rules of decision.

In the latter case the court has only to inquire into facts and the rules of action prescribed to individuals. In the former they do not inquire how, but what they may try. The jurisdiction of the court is the depositum of a truth. The supreme power in a State is the fountain of justice. Such streams are derived from this fountain to the courts as the Legislature may positively enact. The judges, as servants to the public, can do that only for which they are employed. The constitution had provided how this trust should be designated. The judges must be named by their Christian and sirnames, commissioned during good behavior, and have salaries. Causes of exclusive federal cognizance cannot be tried otherwise, nor can the judicial power of the United States be otherwise exercised. The State courts were not supposed to be deprived by the constitution of the jurisdiction that they exercised before, over many causes that may be tried now in the national courts. The suitors would have their choice of courts. But who shall try a crime against a law of the United States, or a new created action? Here jurisdiction is made de novo. A trust is to be exercised, and this can be done only by persons appointed as judges in the manner before mentioned. The will of the society is expressed and is disobeyed; and who shall interpret and enforce that will but the persons invested with authority from the same society? The State judges are to judge according to the law of the State, and the common law. The law of the United States is a rule to them, but no authority for them. It controlled their decisions, but could not enlarge their powers. Suppose an action was brought on a statute, declaring a forfeiture equal to the whole of the goods against him whoever shall unlade without a permit; before the law was made, no court had jurisdiction. Could a State court sustain such an action? They might as properly assume admiralty jurisdiction, or sustain actions for forfeitures of the British revenue acts. He did not mean any disrespect to the State courts. In some of the States, he knew the judges were highly worthy of trust; that they were safeguards to Government, [Volume 4, Page 151] and ornaments to human nature. But whence should they get the power of trying the supposed action? The States under whom they act, and to whom they are amenable, never had such power to give, and this Government never gave them any. Individuals may be commanded, but are we authorized to require the servants of the States to serve us? It was not only true, he said, that they could not decide this cause, if a provision was neglected to be made, by creating proper tribunals for the decision, but they would not be authorized to do it, even if an act was passed declaring that they should be vested with power; for they must be individually commissioned and salaried to have it constitutionally, and then they would not have it as the State judges. If we may empower one State court, suppose the Supreme Court, we may empower all or any, even the justices of the peace. This will appear more monstrous if we consider the trial of crimes. A statute creates an offence. Shall any justice of the peace be directed to summon a jury to try for treason or piracy? It was true the Government would not direct a thing so wickedly absurd to be done; but who will believe Government may lawfully do it? It would be tedious to pursue this, or even the ideas connected with it, very far. The nature of the subject rendered it difficult to be even perspicuous without being prolix. His wish was to establish this conclusion, that offences against statutes of the United States, and actions, the cognizance whereof is created de novo, are exclusively of federal jurisdiction; that no persons should act as judges to try them, except such as may be commissioned agreeably to the constitution; that for the trial of such offences and causes, tribunals must be created. These, with the admiralty jurisdiction, which it is agreed must be provided for, constitute the principal powers of the districts courts. If judges must be paid, they might as well be employed. The remnants of jurisdiction, which may be taken away, are scarcely worth transferring to the State courts, and may as well be exercised by our own.

The question being now called for from several parts of the House,

Mr. Stone said, he hoped the question would not be determined on the discussion it already had. He thought, although gentlemen might have made up their minds on the subject, a very full communication of the principles upon which they acted in this momentous business ought to take place before the question was decided; for to him it appeared of the greatest importance that they should act rightly, and it should be known they acted on right principles. It is admitted, said he, on all hands, to be a work of extreme difficulty; one gentleman has said that it is so difficult, we cannot correct it. But surely we ought to exercise a little patience in the examination; perhaps, on a minute inquiry, we may hear of some road by which we may avoid these difficulties, and amply recompense ourselves, our constituents, and our posterity, for the expense of our time. I confess, for my own part, I wish more information than I have yet received, in order to reconcile me to the bill. I was so unfortunate on a former and memorable occasion as to differ from the majority of this House; perhaps this question may turn upon a similar principle, and renew that pain which it gives me to oppose what I find to be the voice of my country. I therefore most earnestly wish to be convinced that my ideas are founded on misconception, in order to go with the majority; but if I should be left in the minority, whether from not having my difficulties removed, or because they are insuperable, I shall ever cheerfully submit to the judgment of the House; and on this occasion I am ready to assent to every power necessary to the due administration of the Government. But I declare, in my mind, this is a system founded on principles distinct and separate from the general principles upon which the constitution was framed. It appears to me that the present Government originated in necessity, and it ought not to be carried farther than necessity will justify.

I believe the scheme of the present Government was considered by those who framed it as dangerous to the liberties of America; if they had not considered it in this point of view, they would not have guarded it in the manner they have done. They supposed that it had a natural tendency to destroy the State Governments; or, on the other hand, they supposed that the State Governments had a tendency to abridge the powers of the General Government; therefore it was necessary to guard against either taking place, and this was to be done properly by establishing a Judiciary for the United States. This Judiciary was likewise absolutely necessary, because a great many purposes of the Union could not be accomplished by the States, from the principle of their government, and could not be executed from a defect in their power. But all these, I presume, are involved in the jurisdiction of the Supreme Federal Court. I apprehend in every thing else the State courts might have had complete and adequate jurisdiction; the State courts could not determine between State and State, because their judgment would be ineffectual; they could never carry it into execution. But I apprehend in all other cases the States could execute that authority which is reposed in the United States. Yet I do not doubt but the caution might be necessary for securing to the General Government, in reserve, those very powers, because such abuses may happen in the State courts, as to render it necessary for the due administration of justice, that the national jurisdiction be carried over such States. But what I am not satisfied of is, whether it is now essential that we proceed to make such establishments. I cannot conceive it to be now essential; because the business may be done without, and it is not commanded by the constitution; if it is commanded by the constitution, we have no power to restrain or modify it. If it is the right of an alien or foreigner to sue or be sued only in the courts of the United States, then they have a right to that jurisdiction complete, and then Congress must institute courts for taking exclusive cognizance of all cases pointed out in the constitution; but this would be contrary to the principle of the bill, which proposes to establish the inferior courts with concurrent jurisdiction with the State courts.

By the constitution, Congress has a right to establish such inferior courts as they from time to time shall think necessary. If I understand the force of the words "from time to time," it is that Congress may establish such courts when they think proper. I take it they have used another [Volume 4, Page 152] precaution; and this construction is guarded by another clause in the constitution, where it is provided that the constitution itself, and all laws made in pursuance thereof, as well as treaties, shall be the supreme law of the land, and the judges in every State are to be bound thereby; any thing in the State laws or constitutions to the contrary not-withstanding. Now can gentlemen be afraid that the State courts will not decide according to the supreme law? If they are, it is in the discretion of Congress to refuse them the opportunity; but the bill gives them a concurrent jurisdiction, and shows that these dangers are not really apprehended; if they give them concurrent jurisdiction, they have the power of giving them complete; and they may delay from time to time the institution of national courts, until they suppose or have experienced the inadequacy of the State courts to the objects granted by the constitution to the participation of the Judiciary of the United States. If, sir, the State judges are bound to take cognizance of the laws of the United States, and are sworn to support the General Government, the system before us must have originated from a source different from that from which the Government itself derived its existence. Yet, I admit, sir, that there is a necessity for instituting Admiralty courts, though it is not because I consider the power of the State inadequate to that object; but because those courts are not instituted in all of them, and it is proper that there should be a maritime jurisdiction within the bounds of every State to determine cases arising within the same. It depends not upon the principle, but on the fact, that I admit it to be necessary for Congress to organize an admiralty system; for I take it, that were admiralty courts established in the different States, and were you to make laws that affected admiralty cases, they would be as much obliged to determine by your laws as if you had instituted the courts yourselves. If, then, the State courts have the power, your system is not necessary, unless they will not execute that power; it must therefore depend on your suspicion of their want of judgment or integrity. I declare I can contemplate a time, with great pain, when one of those cases may happen; but I believe the time is not yet arrived, and we ought not to adopt a system which presupposes it.

I know it is of great importance to have the decisions of the courts conformable; and I believe also it is of no inconsiderable importance to the Government, to have it operate as well on individuals as on States. It would be, if liked by the people, one of the strongest chains by which the Union is bound; one of the strongest cements for making this constitution firm and compact. But I would not have the measure adopted at a time, and on a principle, which must have a direct contrary tendency. If we establish federal courts, on the principle that the State courts are not able or willing to do their duty, we establish rivals. But if we honestly conduct upon the principle of the constitution--necessity, we may expect some good to result from the exercise of our powers, and prevent any clashing of jurisdiction; but to act on other principles must introduce confusion. Every body knows with what phlegmatic and cool determination, with what disregard of surrounding objects, courts maintain their separate jurisdictions. If we search the history of courts with which we are well acquainted, we shall find, that though they did not absolutely proceed to bloodshed, yet they put the whole community in commotion with the clashing of their jurisdictions; yet in that country the citizen and the community have a remedy. I fancy it is not so in this; I believe, instead of being found what the gentleman from South Carolina has termed them, planets rolling in their orbits, on the immutable principles of order, so as not to interfere with each other, they will be felt in concussion, and their violence will violate the harmony with which gentlemen please their imagination. The clew of separate jurisdiction will twine into such a state of perplexity, as to render it impossible for human wisdom to disentangle it without injury.

The gentlemen have mentioned jails and different processes; they might have traced it down to an execution, and shown us what might have been the consequence. Suppose an alien has a right to a man's property, and a citizen the same, they lay their executions at the same time, the jurisdictions do not know each other, they take no cognizance of each other's proceedings, the land is taken by the State court, and the possessor turned out; if it is taken by the officer of the Continental court, the possessor is turned out also, and an action is brought to determine again who has a right to the property; the State court says the citizen, and the continental court the alien: What is to be done? Here is no tribunal to determine between them; it can only be determined by the sword. Gentlemen ought to examine this part of the subject more fully before they decide it.

Mr. Burke declared it to be a singular innovation on the privileges of the citizens, and such as they would never submit to; for they never had an idea that by this revolution they were to be put in a worse situation than they were in under the former Government. He said when their State districts courts would be sitting, the Federal courts would be engaged at the same time, and he asked whether the people could ever consider such an accumulation of courts of justice calculated to promote their interest; it would harass them with extreme duty, as witnesses, jurors, &c. and leave them at the mercy of the Judges as to fines, when they should be engaged at another court. With respect to the time of the court sitting, it might be made at a most inconvenient time of the year, and the place might be at the most distant part of the State, where a man might be dragged three or four hundred miles from his home, and tried by men who know nothing of him, or he of them; he was sure, under the circumstances, the freemen of America could never submit to it.

Mr. Madison said, that all these points might be secured in the bill, when they came to the part that related thereto.

Mr. Lawrence expressed himself against the motion for striking out, because he conceived that it was essential to carry this part of the constitution into effect, and that the courts had better be established now than hereafter.

Mr. Madison said, it would not be doubted that some Judiciary system was necessary to accomplish the objects of the Government, and that it ought to be commensurate with the other branches of the Government. Under the late confederation, it could scarcely be said, that there was [Volume 4, Page 153] any real Legislative power, there was no Executive branch, and the Judicial was so confined as to be of little consequence; in the new constitution a regular system is provided; the Legislative power is made effective for its objects; the Executive is co-extensive with the Legislative, and it is equally proper that this should be the case with the Judiciary. If the latter be concurrent with the State jurisdictions, it does not follow that it will for that reason be impracticable. It is admitted, that a concurrence exists in some cases between the Legislative authorities of the Federal and State Governments; and it may be safely affirmed that there is more, both of novelty and difficulty in that arrangement, than there will be in the other.

To make the State courts federal courts, is liable to insuperable objections, not to repeat that the moment that is done, they will, from the highest down to the county courts, hold their tenures during good behavior, by virtue of the constitution. It may be remarked, that, in another point of view, it would violate the constitution by usurping a prerogative of the Supreme Executive of the United States. It would be making appointments which are expressly vested in that department, not indeed by nomination, but by description, which would amount to the same thing. But laying these difficulties aside, a review of the constitution of the courts in many States will satisfy us that they cannot be trusted with the execution of the Federal laws. In some of the States it is true they might, and would be safe and proper organs of such a jurisdiction; but in others they are so dependent on State Legislatures, that to make the Federal laws dependent on them, would throw us back into all the embarrassments which characterized our former situation. In Connecticut the Judges are appointed annually by the Legislature, and the Legislature is itself the last resort in civil cases.

In Rhode-Island, which we hope soon to see united with the other States, the case is at least as bad. In Georgia, even under their former constitution, the Judges are triennially appointed, and in a manner by no means unexceptionable. In Pennsylvania they hold their places for seven years only. Their tenures leave a dependence, particularly for the last year or two of the term, which forbid a reliance on Judges who feel it. With respect to their salaries, there are few States, if any, in which the Judges stand on independent ground. On the whole, he said, he did not see how it could be made compatible with the constitution, or safe to the Federal interests, to make a transfer of the Federal jurisdiction to the State courts, as contended for by the gentlemen who oppose the clause in question.

Mr. Burke said, he had turned himself about to find some way to extricate himself from this measure; but which ever way he turned, the constitution still stared him in the face, and he confessed he saw no way to avoid the evil. He made this candid confession, to let them know why he should be a silent spectator of the progress of the bill; and he had not the most distant hope that the opposition would succeed. If any substitute could be devised that was not contrary to the constitution, it should have his support, but he absolutely despaired of finding any. He was, however, satisfied that the people would feel its inconvenience, and express their dislike to a Judicial system which rendered them insecure in their liberties and property; a system that must be regarded with jealousy and distrust.

Mr. Jackson.--Sir, the importance of the question induces me to trouble the committee so far as to answer one of the arguments made use of in the opposition, and which I think necessary to do away the impressions they have made, should be answered. The gentleman from Massachusetts (Mr. Sedgwick) has carried the nation to the highest pinnacle of glory, and in a moment hurled it down to the lowest pitch; and has laid the loss of national faith, credit, and honor to the want of an energetic Judiciary. Every good citizen will, with him, deplore the abject state we have been brought to; but, sir, does this argument hold good here? I am of opinion it is evident it does not. Under the old form of Government, Congress had no compelling Judiciary; no power of reversing the decrees of the State Judges; but it is contended that they have, or ought to have more under the present system. It is allowed, sir, that Congress shall have the power, in its fullest extent, to correct, reverse, or affirm, any decree of a State court; and assuredly the Supreme Court will exercise this power. How then can our national faith or honor be injured by striking out the clause in future? It must be obvious to the gentleman himself, that his fears are groundless; for the Supreme Court will interfere and keep the State Judiciaries within their bounds: That authority will tell them, thus far ye shall go, and no further; and will bring them back when they exceed their bounds, to the principles of their institution.

Another gentleman from Massachusetts (Mr. Ames) has advanced a position I cannot agree with. He has said, that the State courts will not, nor cannot, take cognizance of laws of the Union, as it would be taking up matters out of the bounds of their jurisdiction, and interfering with what was not left to them. Sir, I answer that gentleman with the words of the constitution, "This constitution, and the laws of the United States made in pursuance thereof, and all treaties, &c. shall be the supreme law of the land." This surpasses in power any State laws; the Judges are bound to notice them as the supreme law, and I call upon the gentleman to know, as a professional man, if a criminal was tried for a capital offence under a State law, and could justify himself under the laws of the Union, if the State Judges could condemn him? Sir, they would forfeit their oaths if he was not acquitted; this, however, he has admitted in his argument in some measure. If there was no jurisdiction, neither could they notice the law. I acknowledge that the gentleman has used many specious arguments, but as they rest chiefly on this ground, I think they are done away.

The gentleman from Virginia (Mr. Madison) has advanced, that, by leaving this power in the hands of the State Judiciaries, or by joining their concurrent authority, you establish them as inferior jurisdictions. If the gentleman will turn to the eleventh and twenty-fifth sections, he will find those positions established, and what fell from the gentleman from Massachusetts concerning jurisdiction is likewise answered. The State courts, by the former, are acknowledged to have concurrent jurisdiction in a large [Volume 4, Page 154] extent, where the United States and an alien are the party, or between citizens of one State and those of another. And if the jurisdiction is acknowledged in some points, it must be supposed to be so in the fullest extent. By the twenty-fifth, sir, they are again fully established; and therefore they are now, by the present system, in every light as fully, agreeably to the gentleman's argument, inferior jurisdictions, as they possibly could be by the principles of the gentleman from New Hampshire. And here, sir, I will advert to the general arguments, used by the gentlemen in opposition, of the necessity of power to enforce the laws of the Union, and support the national existence and honor. Sir, I am opposed in some degree to this clause. For the extent of its power, even supposing the District and Circuit courts abolished, swallows up every shadow of a State Judiciary. Gentlemen, therefore, have no reason to complain of the want of Federal Judiciary power, for the clause declares, "That a final judgment or decree in any suit, in the highest court of law or equity of a State in which the decision of the suit could be had, where the validity of a treaty is drawn in question, or statute thereof, or an authority exercised under the United States; and the decision is against their validity; or where is drawn in question the validity of a statute, or an authority exercised under any State on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty or statute, or of a commission, held under the United States, and the decision is against the title, right, privilege or exemption specially set up, or claimed by either party under such clause, of the said constitution, treaty, statute, or commission, may be re-examined and reversed, or affirmed in the Supreme Court of the United States." Sir, in my opinion, and I am convinced experience will prove it, that there will not, neither can there be any suit or action brought in any of the State courts, but may, under this clause, be reversed or affirmed by being brought within the cognizance of the Supreme Court. But should there be some exceptions for the present, yet sir, the precedent is so forcible, for it goes so far as even to admit of constructions on some of the articles, that by some means or other those articles will in time be totally lost. Sir, let us look at the Court of Exchequer in England; revenue trials at first engrossed its whole attention; from a series of fiction there is now no personal action but from construction may be brought within their cognizance. It is only a suggestion, and very seldom true, that a plaintiff is a king's debtor, and that the action is well grounded: yet there they have counter checks, and another resort; here the Supreme Court is final. Sir, the gentleman from South Carolina (Mr. Burke) was right in declaring a resident on Lake Erie might be dragged to New York for trial, or one on the Oconee to Savannah. Nay, sir, I know not how far in time a man might not be dragged; perhaps from the Oconee to be tried in North Carolina; for one part of the bill, without specifying the spot, declares, that the Circuit courts shall have power to hold special sessions for the trial of criminal causes at their discretion. On these considerations, I hope the House will not adopt the present system, until the milder one is tried. It is calculated to foment and harass the people, without answering any essential purpose.

Mr. Sherman said, it was admitted, on all hands, that a Judiciary system was necessary, even upon condition that the Legislature had a discretion in the business; and it required but little attention to discover that the plan proposed by the Senate was better than what gentlemen proposed to substitute, inasmuch as it was more complete, and not more expensive. There would be a uniformity of decision under the former; while the latter would render the construction of the law vague, if not various. It would less disturb the harmony of the States; and of consequence be more agreeable to the people. He hoped the committee would reject the motion for striking out the clause.

Mr. Smith, of South Carolina, observed, that all the difficulties and inconveniences which the gentlemen have started as arising from the establishment of a District court arise from the Government itself. All the objections made to this court apply equally against having any National Judicature. Indeed if they had any weight, they would as forcibly apply to the very institution which the gentlemen patronize, viz: a court of admiralty and piracy. If there is to be this perpetual clashing of jurisdictions between the Federal and State courts, this eternal jarring between their respective officers, will not these embarrassments exist under any Judicial system that the ingenuity of man can devise? Will they not take place under the establishment proposed by the other side? And will the mere alteration of the court from a district, to a court of admiralty and piracy, remedy this evil? But these objections come too late, a National Government is established. The Judicial power is a component part of this Government, and must be commensurate to it. If we have a Government pervading the Union, we must have a Judicial power of similar magnitude; we must establish courts in different parts of the Union. The only question is, which is the plan best calculated to answer the great object 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 constitution as the double system of Legislation; each State has a Legislative power, both operating on the same persons, and in many cases on the same objects; it is infinitely more difficult to mark with precision the limits of the Legislative than the Judicial power; no one, however, disputed the propriety of vesting Congress with a Legislative power over the Union, and yet that power is perhaps more liable to abuse than the Judicial. It has, indeed, been contended, in some of the State conventions, that Congress ought not to be entrusted with direct taxation; and it is remarkable that the same obstacles were urged against that power which is now suggested against this institution. It was then said that Federal and State taxes could not operate at the same time without confusion; it was then facetiously asked, whether the Congressional and State collector, who had seized a horse for the payment of taxes, were to divide him between them; it is now asked, with equal pleasantry, whether the marshal of the district, and the sheriff of the State court, who have taken the same debtor in execution, [Volume 4, Page 155] are to cut him in halves? It was then answered, that if the State collector seized the horse first, he will have the first satisfaction; it was also shown that there are frequently in the same State, state taxes, county taxes, and corporation taxes, and that these never occasioned any clashing or confusion; it may now be answered, that there are at present, in some of the States, state courts, county courts, and corporation courts; and that these are found convenient, and unaccompanied with the clashing so much apprehended. They keep within their particular spheres, and have their limits ascertained. But in answer to one supposition, allow me to state another; suppose a state sheriff and a county sheriff should seize the same debtor, would he be parcelled out between them? Would not the execution that was first served 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 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 improper 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 accommodate these courts to the convenience of the citizens of each State.

Several other difficulties have been urged, as growing out of this plan of jurisdiction; a candid discussion 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 carried on from one court to another, through four different courts. An attentive examination of the bill is a sufficient answer to this objection. There is no appeal from the State to the District courts; 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 courts, but in admiralty cases; and these cannot be afterwards carried up to the Supreme Court, but when the value exceeds two thousand dollars.

It has been said, that, under the idea of vicinage, 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 constitution is no bar to vesting the State courts with Federal powers, for the words, "such inferior courts as Congress shall, from time to time, establish," imply that Congess may not institute them; and if they are not instituted, these powers 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 beyond 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 inferior courts. The 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" is employed where a discretion is left; the word "shall" is the appropriate term; this distinction is cautiously observed. Again, the Supreme Court, in two cases only, has original jurisdiction; in all others it has appellate jurisdiction; but where is the appeal to come from? Certainly not from the State courts; it must come from a Federal tribunal. There is another argument that appears conclusive; the constitution provides that the Judges of the Supreme and inferior courts, shall hold their commissions during good behavior, 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 behavior, 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 recognizes 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. [Volume 4, Page 156] 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 harasses 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 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.

[31 Aug.]

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, court-houses, &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 burthen, 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 swallow up the State courts, as those who were in favor of this rapid mode of receiving debts, 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 gaol 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.

It may be proper here to refer to the constitution; he then read the clause upon the subject. The Federal court is to have original jurisdiction only in certain specified cases; in all other it is to have only appellate jurisdiction; it is argued from this, that there are to be inferior Federal courts, from which these appeals are to be made. If the constitution had taken from State courts all cognizance 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.

Mr. Vining said, he conceived that the institution of general and independent tribunals were essential to the fair and impartial administration of the laws of the United States. That the power of making laws, of executing them, and a judicial administration of such laws, is in its nature inseparable 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 [Volume 4, Page 157] expense; it is true that expense must in some degree be necessarily incurred, but it will chiefly consist with the organization of your courts, and the erection of such buildings as may be essential, such as court-houses, gaols, and offices, as the gentleman has mentioned; and what at all events do such expenses amount to? They are the price that is paid for the fair and equal administration of your laws; from your amazingly increasing system of Government, causes must necessarily multiply in a proportionably extensive ratio; these causes must be tried somewhere, and whether it is in a State court, or Federal judicature, can, in the article of expense, make but little difference to the parties; it is only (for the sake of more impartial 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 powerful reason to prove that there should be a general, independent, and energetic jurisdiction; otherwise 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.

He wished, he said, to see justice so equally distributed, as that every citizen of the United States should be fairly dealt by, and so impartially administered, that every subject or citizen of the world, whether foreigner or alien, friend or foe, should be alike satisfied; by this means, the doors of justice would be thrown wide open, emigration would be encouraged from all countries 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 extensive funding system would have its intended operation; our navigation, impost, and revenue laws would be executed so as to insure their many advantages, whilst the combined effect would establish the public and private credit of the Union.

Mr. Stone.--I am mistaken if the whole subject has yet come before us in its full extent, and I think it ought to be thoroughly investigated before it is decided upon. I declare myself, Mr. Chairman, much pleased with the discussion, and am gratified with the different points of view in which it has been placed; but I conceive there is a variety of considerations arising out of the subject which have not yet been touched upon. I have seriously reflected, sir, on the subject, and have endeavored 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.

Gentlemen, in their arguments, have expressly or impliedly declared, that the constitution, in this respect, is imperative, that it commands the organization of inferior courts; if this doctrine is true, let us see where it will carry us. It is conceded on all hands, that the establishment of these courts is immutable. If the command of the constitution is imperative, we must carry it through all its branches; but if it is not true, we may model it so as to suit the convenience of the persent time. It appears from the words of the constitution, that Congress may, from time to time, ordain and establish inferior courts, such as they think proper: Now, if this is a command for us to establish inferior courts, if we cannot 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 subject for that length of time, and cannot interfere until the term arrives which you have fixed in your own mind for the power to return. But the words ordain and establish will not only go to the appointment of Judges of inferior courts, but they comprehend every thing which relates to them; we have good authority for this opinion, because one branch of the Legislature has expressly laid it down in the bill before us; they have modified the tribunal; they have restrained its jurisdiction; they have directed appeals only to be had in certain cases; they have connected the State courts with the District courts in some cases; this shows that, in their opinion, the articles of the constitution gave them a latitude. It is not said in that instrument, that you shall exercise the judicial power over all those cases, but that the judicial power shall extend to those cases. If it had been the idea of the convention that its Judiciary should extend so as positively to have taken in all these cases, they would so have declared it, and been explicit; but they have given you a power to extend your jurisdiction to them, but have not compelled you to that extension. Several gentlemen have mistaken this idea, and that on very different ground. The gentleman from Virginia has compared the exercise of the Judiciary to that of the Executive and Legislative powers, and seems from his arguments to infer, that if you do not extend the Judiciary power so as to take in all those cases which are specified in the constitution, that you will leave the Judiciary defective. 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 [Volume 4, Page 158] power to admit that a suit in certain cases shall be brought for six-pence; this we may authorize to be done in 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. I understood it to be said, by the gentleman from New York, and decided, that the establishment of inferior courts would draw the whole Judiciary power along with them. If the clause in the constitution commands that inferior courts be established, what are their powers? They will claim all the jurisdiction to which it is declared the Judicial power shall extend, it is the right the constitution has given them after you have established the courts; any modification, therefore, or restriction of their power, would be a nullity; hence it appears to me, if the gentleman's principle is right, that part of your bill which restricts their cognizance to a particular sum is a nullity.

I apprehend that the gentlemen who support this bill have differed widely from the body that passed it, in supposing two things; first, that whatever Continental jurisdiction is exercised, that it follows they are Continental courts, and must have Continental salaries, and hold their offices during good behavior; if this is the case, the Senate have done one of two things, they have either relinquished all the penalties due to Government for a non-compliance of the laws under one hundred dollars, by the 9th section of the bill; or they have established the doctrine which gentlemen on this side contend for. By this section they have given to the State courts jurisdiction in cases of an inferior magnitude; now the very moment any suit is brought by the United States, under one hundred dollars, before a State court, such court becomes a Continental court. I say they must run into this absurdity, or 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, 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.

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.

It will perhaps be well to consider what the State courts can do, and consider what they are not competent to, and the reason we should not trust them. It appears to me that there is nothing but what the State courts are competent to but certain cases which are specially designated; in cases where a State is a party, they ought not to decide, because they could not execute their judgment; they would be competent to all admiralty cases, but for the fact I mentioned before, that admiralty courts are not established in all the States. I take it to be true that all the judicial powers not taken away by the constitution from the States remain to them, and I take them to be complete republics, to have sovereign power, conformable to their nature; therefore, if the constitution of the United States had not interfered in the subject, even of treason against the Union, the States, I apprehend, except in a few instances, could not have taken notice of it, because I do not know any kind of treason against the United States but is also treason against a particular State. If a man raises an army in the body of a State, unauthorized by the State, is it not rebellion against the State? Suppose it to be done in this State, and they tell you it is not the State of New York they mean to oppose, it is the General Government, 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 suppose, 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 explained; but certainly [Volume 4, Page 159] 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 bail. If he is taken by writ from the general court, he must also give bail, or go to prison. But if he is unable on the first writ to give bail and goes to prison, then the sheriff returns to the general court that he has taken him, and he is in gaol. This is a good return, as well in civil as in criminal process; as well upon mesne process as in executions; and if either of the courts required his appearance in court, an habeas corpus may be granted; by which he will be brought into court, and remanded, if proper. Here is no danger of defeating rights, nor acquiring inconvenience, because the same gaol will be made use of, and the same sheriff will hold, and always be liable for his prisoner. As the courts are connected they will ex officio take notice of, and admit the proceedings of, each other.

But in different tribunals, not connected, mischiefs may happen. Will a sheriff be justifiable in delivering up his prisoner to the marshal, or will it be a proper return by the marshal that the prisoner is kept by the State sheriff. If the first position is true, you ought to show that the marshal is liable to the State creditor for an escape, and you ought also to show that the marshal will return his prisoner to the State jail. If the second, you ought to show that the sheriff is justifiable in detaining a man after the cause for which he 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 judgment 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 to the United States, and at the same time an indictment is laid in the State court, for stealing goods, as for the goods of A: there is a conviction in each; the goods are to be returned to the owner. Now the courts in their several capacities justify their officers; and they proceed severally to seize goods or body; and failing in strength, the posse comitatus is raised on both sides; murder may be the consequence; and if it should, each court justifying the act of its officers, and condemning the others, all the officers in the different courts must be hanged for acting legally.

These are the inconveniences which result from a system of this kind, and why are these inconveniences to be encountered? Is it because such a system will be popular? I cannot conceive it warrantable upon this ground; it seems to me to be laid upon a principle directly opposite to that of being agreeable to the people. Will it be agreeable to the Judges? That cannot be, because it is intended to correct the vices of the State Judiciaries. Will it be considered as necessary by the State Legislature? Gentlemen have agreed, that it will not be agreeable to the State Legislatures, and we find in general, the sentiments of the people expressed by the Legislatures: from these circumstances, I conceive that this system cannot, in its nature, be agreeable to the State Governments, or to the people. I do not think this, then, the proper time to establish these courts; it is a measure on which the affection and attachment of the people to the constitution will be risked; it is best to defer the business till the necessity of these courts shall become apparent. I could therefore wish, that the power should be reserved for the occasion, and that nothing should be done the present session but what is absolutely necessary, lest by extending these matters too far, we should give the people a disposition to curtail our authority; they might then not confine themselves to an alteration in the Judicial department alone, they might extend it so far as to injure the Executive and Legislative, if not to the total change or destruction of the whole system of Government. I am, sir, for this Government moving as silently as death, that the people should not perceive the least alteration for the worse in their situation; the exercise of this power will certainly be the most odious that can be exercised, for mankind do not generally view courts of justice with a favorable eye, they are intended to correct the vices of the community, and consequently are disagreeable to human nature. It was well observed, and I concur in the opinion, that of all the wheels in Government, the Judicial is the most disagreeable.

Mr. Gerry.--The gentlemen who support the motion for striking out the clause, urge that this system will interfere with the State Judiciaries, that it will occasion a double set of officers, separate prisons and court-houses, and in general that the expenses will increase to a degree heretofore unknown, and consequently render the establishment obnoxious to the community. These objections are of such weight, as to have made deep impression on my mind. But what do gentlemen propose? Do they believe that these disadvantages can be remedied by Congress? I think they cannot; they result from the constitution itself, and therefore must be borne until the constitution is altered, or until the several States shall modify their courts of judicature so as to comport with our system.

Gentlemen have said, that the Federal Judiciary will be disagreeable to the citizens of the United States. These it should be recollected were divided into two classes; the one was for an unconditional ratification of the present constitution; the other was against such a measure. There appeared to be a majority of the first description, and we must suppose they understood what would be the operation of the system of Government they adopted with such avidity; if they did not, they entrusted the decision to conventions of men whom they supposed did. We must admit that they knew their business, and saw it would be for the [Volume 4, Page 160] benefit of their constituents, or we must suppose they were weak or wicked men to adopt a constitution without understanding it: this last supposition being inadmissible, I take it, then, their observations only refer to that part of our fellow-citizens who were against the unconditional ratification. Now I believe with them, that this part of the community, at least, will be uneasy under the operation of such a Judicial system. But how can it be remedied? The motion of the honorable gentleman from New Hampshire extends to prevent the establishment of inferior tribunals, except for the trial of admiralty causes; what, then, is to be done with all the other cases of which the Supreme Court has only appellate jurisdiction? You cannot make Federal courts of the State courts, because the constitution is an insuperable bar; besides, the laws and constitutions of some States expressly prohibit the State Judges from administering, or taking cognizance of foreign matters. New Hampshire requires all her civil officers to be appointed by the Legislature, and for what length of time they shall determine; now this is contrary to the indispensable tenure required by the constitution of the United States. All Judicial officers in Massachusetts must be appointed by the Governor, with the advice of council, and may be removed by the same power, upon the address of both Houses of the Legislature. There is another provision in the same constitution, incompatible with the terms of the Judicial capacity under Congress. "All writs issuing out of the clerk's office, in any of the courts of law, shall be in the name of the commonwealth of Massachusetts, &c." The constitution of Maryland establishes their Judges on the tenure of good behavior; but they may be removed for misbehavior, on conviction in a court of law. The Judges of the Federal court are to be removed only by impeachment and conviction before Congress. I suppose the same, or similar difficulties exist in every State, and therefore the State courts would be improper tribunals to administer the laws of the United States, while the present constitution remains, or while they are not established by the individual States, upon the terms required in this constitution.

We are to administer this constitution, and therefore we are bound to establish these courts, let what will be the consequence. Gentlemen say they are willing to establish Courts of Admiralty; but what is to become of the other cases to which the continental jurisdiction is extended by the constitution? When we have established the courts as they propose, have fixed the salaries, and the Supreme Executive has appointed the Judges, they will be independent, and no power can remove them; they will be beyond the reach of the Executive or Legislative powers of this Government; they will be unassailable by the State Legislatures; nothing can affect them but the united voice of America, and that only by a change of Government. They will, in this elevated and independent situation attend to their duty--their honor and every sacred tie oblige them. Will they not attend to the constitution as well as your laws? The constitution will undoubtedly be their first rule; and so far as your laws conform to that, they will attend to them, but no further. Would they then be confined by your laws within a less jurisdiction than they were authorized to take by the constitution? You must admit them to be inferior courts; and the constitution positively says, that the Judicial powers of the United States shall be so vested. They would then inquire what were the Judicial powers of the Union, and undertake the exercise thereof, notwithstanding any Legislative declaration to the contrary; consequently their system would be a nullity, at least, which attempted to restrict the jurisdiction of inferior courts.

It has been said, that much inconvenience will result from the clashing of jurisdiction. Perhaps this is but ideal; if, however, it should be found to be the case, the General Government must remove the obstacles. They are authorized to suppress any system injurious to the administration of this constitution, by the clause granting to Congress the power of making all laws necessary and proper for carrying into execution the powers of the constitution, or any department thereof. It is without a desire to increase the difficulties of the proposed arrangements, that I make these observations, for I am desirous of promoting the unity of the two Governments, and this, I apprehend, can be done only by drawing a line between the two Judicial powers.

Mr. Jackson.--I would not rise again, but from the great anxiety I feel to have this business well understood and determined. I am not for doing away the whole of the Judiciary power, but so ameliorating it as to make it agreeable and consistent. My heart, sir, is federal; and I would do as much as any member on this floor, on any, and on every occasion, to promote the interests and welfare of the Union. But in the present important question, I conceive the liberties of my fellow-citizens too deeply involved to suffer me to risk such a precious stake, though to secure the efficiency of a National Government.

It has been said in this debate, that the State Judges would be partial, and that there were no means of dragging them to justice. Shall I peremptorily tell the gentlemen who hold this opinion, that there is a constitutional power in existence to call them to account. Need I add that the Supreme Federal Court will have the right to annul these partial adjudications? Thus, then, all these arguments fall to the ground, on the slightest recollection.

Will gentlemen contend that it is for the convenience and security of the people that these inferior courts should be established? I believe this sentiment may be successfully controverted. The accurate Marquis Beccaria points out a danger which it behooves us to guard against. In every society, says he, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and diffuse their influence universally and equally. But men generally abandon the care of their most important concerns, to the uncertain prudence and discretion of those whose interest it is to reject the best and wisest institutions; and it is not till they have been led into a thousand mistakes in matters the most essential to their lives and liberties, and are weary of suffering, that they can be induced to apply a remedy to the evils with which they are oppressed. It is then they begin to conceive and acknowledge the most palpable truths which, from their simplicity, commonly escape vulgar minds, incapable of analyzing objects, [Volume 4, Page 161] accustomed to receive impressions without distinction, and to be determined rather by the opinions of others than by the result of their own examination.

This celebrated writer pursues the principle still further, and confines what we urge on our side against an unnecessary establishment of inferior courts. He asserts, with the great Montesquieu, that every punishment which does not arise from absolute necessity is tyrannical; a proposition which may be made more general thus, every act of authority of one man over another for which there is not an absolute necessity is tyrannical. It is upon this, then, that the sovereign's right to punish crimes is founded; that is, upon the necessity of defending the public liberty entrusted to his care, from the usurpation of individuals; and punishments are just, in proportion as the liberty preserved by the sovereign is sacred and valuable.

He now wished the House to consider whether there was a necessity for the present establishment; and if it should appear, as he thought had been plainly shown, that no such necessity existed, it would be a tyranny which the people of this country never would be content to bear.

The Founders' Constitution
Volume 4, Article 3, Section 1, Document 13
http://press-pubs.uchicago.edu/founders/documents/a3_1s13.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.