University of Virginia Library

JUNE 20—POWER OF JUDICIARY.[67]

Mr Madison—Mr Chairman, permit me to make a few observations
which may place this part in a more favorable light
than the gentleman placed it in yesterday. It may be proper
to remark, that the organization of the general government

for the United States was in all its parts, very difficult. There
was a peculiar difficulty in that of the Executive. Every thing
incident to it must have participated of that difficulty. That
mode which was judged most expedient was adopted, till
experience should point out one more eligible. This part
was also attended with difficulties. It claims the indulgence
of a fair and liberal interpretation. I will not deny that according
to my view of the subject, a more accurate attention
might place it in terms which would exclude some of the
objections now made to it. But if we take liberal construction,
I think we shall find nothing dangerous or inadmissible in
it. In compositions of this kind, it is difficult to avoid technical
terms which have the same meaning. An intention to this
may satisfy gentlemen, that precision was not so easily obtained
as may be imagined. I will illustrate this by one thing
in the constitution. There is a general power to provide
courts to try felonies and piracies committed on the high seas.
Piracy is a word which may be considered as a term of the
law of nations. Felony is a word unknown to the law of
nations, and is to be found in the British laws, and from thence
adopted in the law of these states. It was thought dishonorable
to have recourse to that standard. A technical
term of the law of nations is therefore used that we should
find ourselves authorised to introduce it into the laws of the
United States. The first question which I shall consider, is
whether the subjects of its cognizance be proper subjects of a
federal jurisdiction. The second will be, whether the provisions
respecting it be consistent with safety and impropriety,
will answer the purposes intended, and suit local circumstances.

The first class of cases to which its jurisdiction extends, are
those which may arise under the constitution; and this is to
extend to equity as well as law. It may be a misfortune, that
in organizing any government, the explication of its authority
should be left to any of its co-ordinate branches. There is
no example in any country where it is otherwise. There is a

new policy in submitting it to the judiciary of the United
States. That causes of a federal nature will arise, will be
obvious to every gentleman, who will recollect that the states
are laid under restrictions; and that the rights of the union
are secured by these restrictions. They may involve equitable
as well as legal controversies. With respect to the laws of
the union, it is so necessary and expedient that the judicial
power should correspond with the legislative, that it has not
been objected to. With respect to treaties, there is a peculiar
propriety in the judiciary expounding them.

These may involve us in controversies with foreign nations.
It is necessary therefore, that they should be determined in the
courts of the general government. There are strong reasons
why there should be a supreme court to decide such disputes.
If in any case uniformity be necessary, it must be in the exposition
of treaties. The establishment of one revisionary
superintending power, can alone secure such uniformity.
The same principles hold with respect to cases affecting ambassadors,
and foreign ministers. To the same principles may
also be referred their cognizance in admiralty and maritime
cases. As our intercourse with foreign nations will be affected
by decisions of this kind, they ought to be uniform. This
can only be done by giving the federal judiciary exclusive
jurisdiction. Controversies affecting the interest of the
United States ought to be determined by their own judiciary,
and not be left to partial local tribunals.

The next case, where two or more states are the parties, is
not objected to. Provision is made for this by the existing
articles of confederation, and there can be no impropriety in
referring such disputes to this tribunal.

Its jurisdiction in controversies between a state and citizens
of another state, is much objected to, and perhaps without
reason. It is not in the power of individuals to call any state
into court. The only operation it can have, is that if a state
should wish to bring suit against a citizen, it must be brought
before the federal court. This will give satisfaction to individuals,

as it will prevent citizens on whom a state may have
a claim, being dissatisfied with the state courts. It is a case
which cannot often happen, and if it should be found improper,
it will be altered. But it may be attended with good effects.
This may be illustrated by other cases. It is provided, that
cases of citizens of different states may be carried to the federal
courts.

But this will not go beyond the cases where they may be
parties. A femme covert may be a citizen of another state, but
cannot be a party in this court. A subject of a foreign power
having a dispute with a citizen of this state, may carry it to
the federal court; but an alien enemy cannot bring suit at all.
It appears to me, that this can have no operation but this—
to give a citizen a right to be heard in the federal courts; and
if a state should condescend to be a party, this court may take
cognizance of it.

As to its cognizance of disputes between citizens of different
states, I will not say it is a matter of such importance. Perhaps
it might be left to the state courts. But I sincerely
believe this provision will be rather salutary, than otherwise.
It may happen that a strong prejudice may arise in some
states, against the citizens of others, who may have claims
against them. We know what tardy, and even defective
administration of justice, has happened in some states. A
citizen of another state might not chance to get justice in a
state court, and at all events he might think himself injured.

To the next clause there is no objection.

The next case provides for disputes between a foreign state,
and one of our states, should such a case ever arise; and
between a citizen and a foreign citizen or subject. I do not
conceive that any controversy can ever be decided in these
courts, between an American state and a foreign state, without
the consent of the parties. If they consent, provision is here
made. The disputes ought to be tried by the national tribunal.
This is consonant to the law of nations. Could there
be a more favorable or eligible provision to avoid controversies

with foreign powers? Ought it to be put in the power of
a member of the union to drag the whole community into
war? As the national tribunal is to decide, justice will be
done. It appears to me from this review, that, though on
some of the subjects of this jurisdiction, it may seldom or
never operate, and though others be of inferior consideration,
yet they are mostly of great importance, and indispensably
necessary.

The second question which I proposed to consider, was,
whether such organization be made as would be safe and convenient
for the states and the people at large. Let us suppose
that the subjects of its jurisdiction had only been enumerated,
and power given to the general legislature to establish such
courts as might be judged necessary and expedient, do not
think that in that case any rational objection could be made
to it, any more than would be made to a general power of
legislation in certain enumerated cases. If that would be
safe, this appears to me better and more restrictive, so far
as it may be abused by extension of power. The most
material part is the discrimination of superior and inferior
jurisdiction, and the arrangement of its powers; as, where it
shall have original, and where appellate cognizance. Where
it speaks of appellate jurisdiction, it expressly provides, that
such regulations will be made as will accommodate every
citizen; so far as practicable in any government. The principal
criticism which has been made, was against the appellate
cognizance, as well of fact as law. I am happy that the
honorable member who presides, and who is familiarly
acquainted with the subject, does not think it involves any
thing unnecessarily dangerous. I think that the distinction
of fact as well as law, may be satisfied by the discrimination
of the civil and common law. But if gentlemen should contend,
that appeals, as to fact, can be extended to jury cases,
I contend, that by the word regulations, it is in the power
of congress to prevent it, or prescribe such a mode as will
secure the privilege of jury trial. They may make a regulation

to prevent such appeals entirely: or they may remand
the fact, or send it to an inferior contiguous court, to be tried;
or otherwise preserve that ancient and important trial.

Let me observe, that so far as the judicial power may extend
to controversies between citizens of different states, and so far
as it gives them power to correct by another trial, a verdict
obtained by local prejudices, it is favorable to those states
who carry on commerce. There are a number of commercial
states, who carry on trade, for other states.—Should the
states in debt to them make unjust regulations, the justice
that would be obtained by the creditors, might be merely
imaginary and nominal. It might be either entirely denied,
or partially granted. This is no imaginary evil. Before the
war, New York was to a great amount a creditor of Connecticut:
while it depended on the laws and regulations of
Connecticut, she might withhold payment. If I be not misinformed,
there were reasons to complain. These illiberal regulations
and causes of complaint, obstruct commerce. So far
as this power may be exercised, Virginia will be benefitted by
it. It appears to me from the most correct view, that by the
word regulations, authority is given them to provide against
the inconveniences, and so far as it is exceptionable, they can
remedy it. This they will do if they be worthy of the trust
we put in them. I think them worthy of that confidence
which that paper puts in them. Were I to select a power
which might be given with confidence, it would be judicial
power. This power cannot be abused, without raising the
indignation of all the people of the states. I cannot conceive
that they would encounter this odium. Leaving behind them
their character and friends, and carrying with them local prejudices,
I cannot think they would run such a risk. That men
should be brought from all parts of the union to the seat of
government, on trivial occasions, cannot reasonably be supposed.
It is a species of possibility; but there is every degree
of probability against it. I would as soon believe, that by
virtue of the power of collecting taxes or customs, they would

compel every man to go and pay the money for his taxes with
his own hands to the federal treasurer, as I would believe this.
If they would not do the one, they would not the other.

I am of opinion, and my reasoning and conclusions are drawn
from facts, that as far as the power of congress can extend, the
judicial power will be accommodated to every part of America.
Under this conviction, I conclude, that the legislation, instead
of making the supreme federal court absolutely stationary, will
fix it in different parts of the continent, to render it more convenient.
I think this idea perfectly warrantable. There is
an example, within our knowledge which illustrates it. By
the confederation, congress have an exclusive right of establishing
rules for deciding in all cases, what captures should
be legal, and establishing courts for determining such cases
finally. A court was established for that purpose, which was
at first stationary.—Experience, and the desire of accommodating
the decision of this court to the convenience of the citizens
of the different parts of America, had this effect—it soon became
a regulation, that this court should be held in different
parts of America, and was held accordingly. If such a regulation
was made, when only the interest of the small number
of people who are concerned with captures was affected, will
not the public convenience be consulted, when that of a very
considerable proportion of the people of America will be concerned?
It will be also in the power of congress to vest this
power in the state courts, both inferior and superior. This
they will do, when they find the tribunals of the states
established on a good footing.

Another example will illustrate this subject further. By
the confederation, congress are authorized to establish courts
for trying piracies and felonies committed on the high seas.
Did they multiply courts unnecessarily in this case? No, sir,
they invested the admiralty courts of each state with this
jurisdiction. Now, sir, if there will be as much sympathy between
congress and the people, as now, we may fairly conclude,
that the federal cognizance will be vested in the local tribunals.

I have observed, that gentlemen suppose, that the general
legislature will do every mischief they possibly can, and
that they will omit to do every thing good which they are
authorized to do. If this were a reasonable supposition, their
objections would be good. I consider it reasonable to conclude,
that they will as readily do their duty, as deviate from it:
nor do I go on the grounds mentioned by gentlemen on the
other side—that we are to place unlimited confidence in them,
and expect nothing but the most exalted integrity and
sublime virtue. But I go on this great republican principle,
that the people will have virtue and intelligence to select men
of virtue and wisdom. Is there no virtue among us? If there
be not, we are in a wretched situation. No theoretical checks
—no form of government can render us secure. To suppose
that any form of government will secure liberty or happiness
without any virtue in the people, is a chimerical idea. If there
be sufficient virtue and intelligence in the community, it will be
exercised in the selection of these men. So that we do not
depend on their virtue, or put confidence in our rulers, but in
the people who are to choose them.

Having taken this general view on the subject, I will now
advert to what has fallen from the honorable gentleman who
presides. His criticism is, that the judiciary has not been
guarded from an increase of the salary of the judges. I wished
myself, to insert a restraint on the augmentation, as well as
diminution, of their compensation: and supported it in the
convention. But I was overruled. I must state the reasons
which were urged. They had great weight. The business
must increase. If there was no power to increase their pay, according
to the increase of business, during the life of the
judges, it might happen that there would be such an accumulation
of business as would reduce the pay to a most trivial
consideration. This reason does not hold as to the president,
for in the short period which he presides, this cannot happen.
His salary ought not, therefore, to be increased. It was
objected yesterday, that there was no provision for a jury

from the vicinage. If it could have been done with safety, it
would not have been opposed. It might so happen, that a
trial would be impracticable in the country. Suppose a rebellion
in a whole district, would it not be impossible to get a
jury? The trial by jury is held as sacred in England as in
America.—There are deviations of it in England; yet greater
deviations have happened here since we established our independence,
than have taken place there for a long time, though
it be left to the legislative discretion. It is a misfortune in
any case that this trial should be departed from, yet in some
cases it is necessary. It must be, therefore, left to the discretion
of the legislature to modify it according to circumstances.
This is a complete and satisfactory answer.

It was objected, that this jurisdiction would extend to all
cases, and annihilate the state courts. At this moment of
time it might happen, that there are many disputes between
citizens of different states. But in the ordinary state of
things, I believe that any gentlemen will think that the far
greater number of causes—ninety-nine out of an hundred,
will remain with the state judiciaries. All controversies
directly between citizen and citizen, will still remain with the
local courts. The number of cases within the jurisdiction of
these courts are very small when compared to those in which
the local tribunals will have cognizance. No accurate calculation
can be made but I think that any gentleman who will
contemplate the subject at all, must be struck with this truth.
[Here Mr Madison spoke too low to be understood.)

As to vexatious appeals, they can be remedied by congress.
It would seldom happen that mere wantonness would produce
such an appeal, or induce a man to sue unjustly. If the
courts were on a good footing in the states, what can induce
them to take so much trouble? I have frequently, in the
discussion of this subject, been struck with one remark. It
has been urged, that this would be oppressive to those who
by imprudence, or otherwise are under the denomination of
debtors. I know not how this can be conceived. I will

venture one observation. If this system should have the
effect of establishing universal justice, and accelerating it
throughout America, it will be one of the most fortunate circumstances
that could happen for those men. With respect
to that class of citizens, compassion is their due. To those,
however, who are involved in such incumbrances, relief cannot
be granted. Industry and economy are the only resources.—
It is vain to wait for money, or temporise. The great desiderata
are public and private confidence. No country in
the world can do without them. Let the influx of money be
ever so great, if there be no confidence, property will sink in
value, and there will be no inducements or emulation to industry.
The circulation of confidence is better than the
circulation of money. Compare the situations of nations in
Europe, where the justice is administered with celerity, to that
of those where it is refused, or administered tardily. Confidence
produces the best effects in the former. The establishment
of confidence will raise the value of property, and relieve
those who are so unhappy as to be involved in debts. If this
be maturely considered, I think it will be found that as far
as it will establish uniformity of justice, it will be of real
advantage to such persons. I will not enter into those considerations
which the honorable gentleman added. I hope
some other gentleman will undertake to answer.