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The second paragraph of sect. 2d. art.
3, is in these words: "In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be a party, the supreme court shall have original jurisdiction.
In all the other cases before mentioned, the supreme court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such regulations as the Congress
shall make."
Although it is proper that the courts of the general government should have cognizance
of all matters affecting ambassadors, foreign ministers, and consuls; yet I question much
the propriety of giving the supreme court original jurisdiction in all cases of this
kind.
Ambassadors, and other public ministers, claim, and are entitled by the law of nations, to
certain privileges, and exemptions, both for their persons and their servants.
The meanest servant of an ambassador is exempted by the law of nations from being sued for
debt.
Should a suit be brought against such an one by a citizen, through inadvertency or want
of information, he will be subject to an action in the supreme court.
All the officers concerned in issuing or executing the process will be liable to like actions.
Thus may a citizen of a state be compelled, at great expence and inconveniency, to defend
himself against a suit, brought against him in the supreme court, for inadvertently commencing
an action against the most menial servant of an ambassador for a just debt.
The appellate jurisdiction granted to the supreme court, in this paragraph, has justly
been considered as one of the most objectionable parts of the constitution: under this power,
appeals may be had from the inferior courts to the supreme, in every case to which the
judicial power extends, except in the few instances in which the supreme court will
have original jurisdiction.
By this article, appeals will lie to the supreme court, in all criminal as well as civil causes.
This I know, has been disputed by some; but I presume the point will appear clear to any
one, who will attend to the connection of this paragraph with the one that precedes
it.
In the former, all the cases, to which the power of the judicial shall extend, whether
civil or criminal, are enumerated.
There is no criminal matter, to which the judicial power of the United States will extend;
but such as are included under some one of the cases specified in this section.
For this section is intended to define all the cases, of every description, to which
the power of the judicial shall reach.
But in all these cases it is declared, the supreme court shall have appellate jurisdiction,
except in those which affect ambassadors, other public ministers and consuls, and those
in which a state shall be a party.
If then this section extends the power of the judicial, to criminal cases, it allows
appeals in such cases.
If the power of the judicial is not extended to criminal matters by this section, I ask,
by what part of this system does it appear, that they have any cognizance of them?
I believe it is a new and unusual thing to allow appeals in criminal matters.
It is contrary to the sense of our laws, and dangerous to the lives and liberties of the
citizen.
As our law now stands, a person charged with a crime has a right to a fair and impartial
trial by a jury of his country [county?], and their verdict is final.
If he is acquitted no other court can call upon him to answer for the same crime.
But by this system, a man may have had ever so fair a trial, have been acquitted by ever
so respectable a jury of his country; and still the officer of the government who prosecutes,
may appeal to the supreme court.
The whole matter may have a second hearing.
By this means, persons who may have disobliged those who execute the general government,
may be subjected to intolerable oppression.
They may be kept in long and ruinous confinement, and exposed to heavy and insupportable charges,
to procure the attendence of witnesses, and provide the means of their defence, at a great
distance from their places of residence.
I can scarcely believe there can be a considerate citizen of the United States, that will approve
of this appellate jurisdiction, as extending to criminal cases, if they will give themselves
time for reflection.
Whether the appellate jurisdiction as it respects civil matters, will not prove injurious to
the rights of the citizens, and destructive of those privileges which have ever been held
sacred by Americans, and whether it will not render the administration of justice intolerably
burthensome, intricate, and dilatory, will best appear, when we have considered the nature
and operation of this power.
It has been the fate of this clause, as it has of most of those, against which unanswerable
objections have been offered, to be explained different ways, by the advocates and opponents
to the constitution.
I confess I do not know what the advocates of the system, would make it mean, for I have
not been fortunate enough to see in any publication this clause taken up and considered.
It is certain however, they do not admit the explanation which those who oppose the constitution
give it, or otherwise they would not so frequently charge them with want of candor, for alledging
that it takes away the trial by jury; appeals from an inferior to a superior court, as practised
in the civil law courts, are well understood.
In these courts, the judges determine both on the law and the fact; and appeals are allowed
from the inferior to the superior courts, on the whole merits: the superior tribunal
will re–examine all the facts as well as the law, and frequently new facts will be
introduced, so as many times to render the cause in the court of appeals very different
from what it was in the court below.
If the appellate jurisdiction of the supreme court, be understood in the above sense, the
term is perfectly intelligible.
The meaning then is, that in all the civil causes enumerated, the supreme court shall
have authority to re–examine the whole merits of the case, both with respect to the facts
and the law which may arise under it, without the intervention of a jury; that this is the
sense of this part of the system appears to me clear, from the express words of it, "in
all the other cases before mentioned, the supreme court shall have appellate jurisdiction,
both as to law and fact, &c."
Who are the supreme court?
Does it not consist of the judges? and they are to have the same jurisdiction of the fact
as they are to have of the law.
They will therefore have the same authority to determine the fact as they will have to
determine the law, and no room is left for a jury on appeals to the supreme court.
If we understand the appellate jurisdiction in any other way, we shall be left utterly
at a loss to give it a meaning; the common law is a stranger to any such jurisdiction:
no appeals can lie from any of our common law courts, upon the merits of the case; the
only way in which they can go up from an inferior to a superior tribunal is by habeas corpus
before a hearing, or by certiorari, or writ of error, after they are determined in the
subordinate courts; but in no case, when they are carried up, are the facts re–examined,
but they are always taken as established in the inferior courts.
It may still be insisted that this clause does not take away the trial by jury on appeals,
but that this may be provided for by the legislature, under that paragraph which authorises them
to form regulations and restrictions for the court in the exercise of this power.
The natural meaning of this paragraph seems to be no more than this, that Congress may
declare, that certain cases shall not be subject to the appellate jurisdiction, and they may
point out the mode in which the court shall proceed in bringing up the causes before them,
the manner of their taking evidence to establish the facts, and the method of the courts proceeding.
But I presume they cannot take from the court the right of deciding on the fact, any more
than they can deprive them of the right of determining on the law, when a cause is once
before them; for they have the same jurisdiction as to fact, as they have as to the law.
But supposing the Congress may under this clause establish the trial by jury on appeals,
it does not seem to me that it will render this article much less exceptionable.
An appeal from one court and jury, to another court and jury, is a thing altogether unknown
in the laws of our state, and in most of the states in the union.
A practice of this kind prevails in the eastern states; actions are there commenced in the
inferior courts, and an appeal lies from them on the whole merits to the superior courts:
the consequence is well known, very few actions are determined in the lower courts; it is
rare that a case of any importance is not carried by appeal to the supreme court, and
the jurisdiction of the inferior courts is merely nominal; this has proved so burthensome
to the people in Massachusetts, that it was one of the principal causes which excited
the insurrection in that state, in the year past; very few sensible and moderate men in
that state but what will admit, that the inferior courts are almost entirely useless, and answer
very little purpose, save only to accumulate costs against the poor debtors who are already
unable to pay their just debts.
But the operation of the appellate power in the supreme judicial of the United States,
would work infinitely more mischief than any such power can do in a single state.
The trouble and expence to the parties would be endless and intolerable.
No man can say where the supreme court are to hold their sessions, the presumption is,
however, that it must be at the seat of the general government: in this case parties must
travel many hundred miles, with their witnesses and lawyers, to prosecute or defend a suit;
no man of midling fortune, can sustain the expence of such a law suit, and therefore
the poorer and midling class of citizens will be under the necessity of submitting to the
demands of the rich and the lordly, in cases that will come under the cognizance of this
court.
If it be said, that to prevent this oppression, the supreme court will set in different parts
of the union, it may be replied, that this would only make the oppression somewhat more
tolerable, but by no means so much as to give a chance of justice to the poor and midling
class.
It is utterly impossible that the supreme court can move into so many different parts
of the Union, as to make it convenient or even tolerable to attend before them with
witnesses to try causes from every part of the United states; if to avoid the expence
and inconvenience of calling witnesses from a great distance, to give evidence before
the supreme court, the expedient of taking the deposition of witnesses in writing should
be adopted, it would not help the matter.
It is of great importance in the distribution of justice that witnesses should be examined
face to face, that the parties should have the fairest opportunity of cross examining
them in order to bring out the whole truth; there is something in the manner in which
a witness delivers his testimony which cannot be committed to paper, and which yet very
frequently gives a complexion to his evidence, very different from what it would bear if
committed to writing, besides the expence of taking written testimony would be enormous;
those who are acquainted with the costs that arise in the courts, where all the evidence
is taken in writing, well know that they exceed beyond all comparison those of the common
law courts, where witnesses are examined viva voce.
The costs accruing in courts generally advance with the grade of the court; thus the charges
attending a suit in our common pleas, is much less than those in the supreme court, and
these are much lower than those in the court of chancery; indeed the costs in the last
mentioned court, are in many cases so exorbitant and the proceedings so dilatory that the suitor
had almost as well give up his demand as to prosecute his suit.
We have just reason to suppose, that the costs in the supreme general court will exceed either
of our courts; the officers of the general court will be more dignified than those of
the states, the lawyers of the most ability will practice in them, and the trouble and
expence of attending them will be greater.
From all these considerations, it appears, that the expence attending suits in the supreme
court will be so great, as to put it out of the power of the poor and midling class of
citizens to contest a suit in it.
From these remarks it appears, that the administration of justice under the powers of the judicial
will be dilatory; that it will be attended with such an heavy expence as to amount to
little short of a denial of justice to the poor and middling class of people who in every
government stand most in need of the protection of the law; and that the trial by jury, which
has so justly been the boast of our fore fathers as well as ourselves is taken away under them.
These extraordinary powers in this court are the more objectionable, because there does
not appear the least necessity for them, in order to secure a due and impartial distribution
of justice.
The want of ability or integrity, or a disposition to render justice to every suitor, has not
been objected against the courts of the respective states: so far as I have been informed, the
courts of justice in all the states, have ever been found ready, to administer justice
with promptitude and impartiality according to the laws of the land; It is true in some
of the states, paper money has been made, and the debtor authorised to discharge his
debts with it, at a depreciated value, in orders, tender laws have been passed, obliging
the creditor to receive on execution other property than money in discharge of his demand,
and in several of the states laws have been made unfavorable to the creditor and tending
to render property insecure.
But these evils have not happened from any defect in the judicial departments of the
states; the courts indeed are bound to take notice of these laws, and so will the courts
of the general government be under obligation to observe the laws made by the general legislature
not repugnant to the constitution; but so far have the judicial been from giving undue
latitude of construction to laws of this kind, that they have invariably strongly inclined
to the other side.
All the acts of our legislature, which have been charged with being of this complexion,
have uniformly received the strictest construction by the judges, and have been extended to no
cases but to such as came within the strict letter of the law.
In this way, have our courts, I will not say evaded the law, but so limited it in its operation
as to work the least possible injustice: the same thing has taken place in Rhode–Island,
which has justly rendered herself infamous, by her tenaciously adhering to her paper money
system.
The judges there gave a decision, in opposition to the words of the Statute, on this principle,
that a construction according to the words of it, would contradict the fundamental maxims
of their laws and constitution.
No pretext therefore, can be formed, from the conduct of the judicial courts which will
justify giving such powers to the supreme general court, for their decisions have been
such as to give just ground of confidence in them, that they will firmly adhere to the
principles of rectitude, and there is no necessity of lodging these powers in the courts, in
order to guard against the evils justly complained of, on the subject of security of property
under this constitution.
For it has provided, "that no state shall emit bills of credit, or make any thing but
gold and silver coin a tender in payment of debts."
It has also declared, that "no state shall pass any law impairing the obligation of contracts."
— These prohibitions give the most perfect security against those attacks upon property
which I am sorry to say some of the states have but too wantonly made, by passing laws
sanctioning fraud in the debtor against his creditor.
For "this constitution will be the supreme law of the land, and the judges in every state
will be bound thereby; any thing in the constitution and laws of any state to the contrary notwithstanding."
The courts of the respective states might therefore have been securely trusted, with
deciding all cases between man and man, whether citizens of the same state or of different
states, or between foreigners and citizens, and indeed for ought I see every case that
can arise under the constitution or laws of the United States, ought in the first instance
to be tried in the court of the state, except those which might arise between states, such
as respect ambassadors, or other public ministers, and perhaps such as call in question the claim
of lands under grants from different states.
The state courts would be under sufficient controul, if writs of error were allowed from
the state courts to the supreme court of the union, according to the practice of the courts
in England and of this state, on all cases in which the laws of the union are concerned,
and perhaps to all cases in which a foreigner is a party.
This method would preserve the good old way of administering justice, would bring justice
to every man's door, and preserve the inestimable right of trial by jury.
It would be following, as near as our circumstances will admit, the practice of the courts in
England, which is almost the only thing I would wish to copy in their government.
But as this system now stands, there is to be as many inferior courts as Congress may
see fit to appoint, who are to be authorised to originate and in the first instance to
try all the cases falling under the description of this article; there is no security that
a trial by jury shall be had in these courts, but the trial here will soon become, as it
is in Massachusetts' inferior courts, mere matter of form; for an appeal may be had to
the supreme court on the whole merits.
This court is to have power to determine in law and in equity, on the law and the fact,
and this court is exalted above all other power in the government, subject to no controul,
and so fixed as not to be removeable, but upon impeachment, which I shall hereafter
shew, is much the same thing as not to be removeable at all.
To obviate the objections made to the judicial power it has been said, that the Congress,
in forming the regulations and exceptions which they are authorised to make respecting
the appellate jurisdiction, will make provision against all the evils which are apprehended
from this article.
On this I would remark, that this way of answering the objection made to the power, implies an
admission that the power is in itself improper without restraint, and if so, why not restrict
it in the first instance.
The just way of investigating any power given to a government, is to examine its operation
supposing it to be put in exercise.
If upon enquiry, it appears that the power, if exercised, would be prejudicial, it ought
not to be given.
For to answer objections made to a power given to a government, by saying it will never be
exercised, is really admitting that the power ought not to be exercised, and therefore ought
not to be granted.
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