1801 Examination 5 · Founding Made Plain

1THE EXAMINATION.

2Number V.

3[New York, December 29, 1801]

4In the rage for change,

5 or under the stimulus

6 of a deep-rooted animosity

7 against the former administrations,

8 or for the sake

9 of gaining popular favor

10 by a profuse display

11 of extraordinary zeal for economy,

12 even our judiciary system

13 has not passed unassailed.

14The attack here

15 is not so open as that

16 on the revenue;

17 but when we are told

18 that the states individually have

19 "principal care of our persons,

20 our property and our reputation,

21 constituting the great field

22 of human concerns;

23 and that therefore we may well doubt

24 whether our organization

25 is not too complicated,

26 too expensive;

27 whether offices and officers

28 have not been multiplied

29 unnecessarily,

30 and sometimes injuriously

31 to the service

32 they were meant to promote;"

33 when afterwards it is observed

34 that "the judiciary system will,

35 of course, present itself

36 to the contemplation of Congress;"

37 and when it appears

38 that pains had been taken

39 to form and communicate

40 a numerical list

41 of all the causes decided

42 since the first establishment

43 of the courts,

44 in order that Congress

45 might be able to judge

46 of the proportion

47 which the institution bears

48 to the business—

49 with all these indications,

50 it is not to be misunderstood

51 that the intention

52 was unequivocally to recommend

53 material alterations

54 in the system.

55No bad thermometer

56 of the capacity

57 of our Chief Magistrate

58 for government

59 is furnished by the rule

60 which he offers

61 for judging of the utility

62 of the Federal Courts;

63 namely, the exact number of causes

64 which have been by them decided.

65There is hardly any stronger symptom

66 of a pigmy mind,

67 than a propensity

68 to allow greater weight

69 to secondary

70 than to primary considerations.

71It ought, at least,

72 to have been adverted to,

73 that if this circumstance

74 were a perfect criterion,

75 it is yet too early to apply it,

76 especially to the courts

77 recently erected:

78 and it might have merited reflection,

79 that it would have been prudent

80 to wait for a more advanced period

81 of the presidential term,

82 to ascertain what influence

83 the great change

84 which has lately happened

85 in our public functionaries

86 may have on the confidence,

87 which in many parts of the Union

88 has heretofore been reposed

89 in the State Courts,

90 so as to prevent a preference

91 of those of the United States.

92But, to enable us duly

93 to appreciate the wisdom

94 of the projected innovation,

95 it is necessary to review

96 the objects

97 which were designed

98 to be accomplished

99 by the arrangement

100 of the judiciary power,

101 as it is seen in the Constitution,

102 and to examine the organization

103 which has been adopted,

104 to give effect to those objects.

105It is well known

106 to all who were acquainted

107 with the situation

108 of our public affairs

109 when the Constitution was framed,

110 and it is to be inferred

111 from the provisions

112 of the instrument itself,

113 that the objects contemplated, were,

114 1st. To provide a faithful

115 and efficient organ

116 for carrying into execution

117 the laws of the United States,

118 which otherwise

119 would be a dead letter.

120 2d. To secure the fair interpretation

121 and execution of our treaties

122 with foreign nations.

123 3d. To maintain harmony

124 between the individual States;

125 not only by an independent

126 and impartial mode

127 of determining controversies

128 between them,

129 but by frustrating the effects

130 of partial laws in any one,

131 injurious to the rights

132 of the citizens of another.

133 4th. To guard generally

134 against invasions

135 of property and right,

136 by fraudulent and oppressive laws

137 of particular States,

138 enforced by their own tribunals.

139 5th. To guard the rights

140 and conciliate the confidence

141 of foreigners,

142 by giving them the option

143 of tribunals created by,

144 and responsible to,

145 the general government;

146 which, having the immediate charge

147 of our external relations,

148 including the care

149 of our national peace,

150 might be expected

151 to be more tenacious

152 of such an administration of justice

153 as would leave

154 to the citizens of other countries

155 no real cause of complaint.

156 6th. To protect reciprocally

157 the rights

158 and inspire mutually

159 the confidence

160 of the citizens

161 of different States

162 in their intercourse with each other,

163 by enabling them to resort

164 to tribunals so constituted,

165 as to be essentially free

166 from local bias or partiality.

167 7th. To give the citizens

168 of each State

169 a fair chance of impartial justice

170 through the medium

171 of those tribunals,

172 in cases in which

173 the titles to property

174 might depend,

175 on the conflicting grants

176 of different States.

177These were the immensely important

178 objects to be attained

179 by the institution

180 of an adequate judiciary power,

181 in the government

182 of the United States.

183Nor did its institution depend

184 upon mere speculative opinion,

185 though, indeed,

186 even that would have been sufficient

187 to indicate the expediency

188 of the measure:

189 but experience had actually,

190 in a variety of ways,

191 demonstrated its necessity.

192The treaties of the United States

193 had been infracted by State laws,

194 put in execution

195 by State judicatories.

196The rights of property

197 had been invaded by the same means,

198 in numerous instances,

199 as well with respect to foreigners

200 as to citizens;

201 as well between citizens

202 of different States

203 as between citizens

204 of the same State.

205There were many cases

206 in which lands were held or claimed

207 under adverse grants

208 of different States,

209 having rival pretensions;

210 and in respect to which,

211 the local tribunals,

212 even if not fettered

213 by the local laws,

214 could hardly be expected

215 to be impartial.

216In several of the States

217 the courts were so constituted

218 as not to afford sufficient assurance

219 of a pure, enlightened,

220 and independent administration

221 of justice;

222 an evil which in some of them

223 still continues.

224From these different sources

225 serious mischiefs had been felt.

226The interests of the United States,

227 in their foreign concerns, had suffered;

228 their reputation had been tarnished;

229 their peace endangered;

230 their mutual harmony

231 had been disturbed or menaced;

232 creditors in numerous instances

233 had been ruined

234 or very much injured:

235 confidence in pecuniary transactions

236 had been destroyed,

237 and the springs of industry

238 had been proportionably relaxed.

239To these circumstances,

240 as much, perhaps, as any other

241 that accompanied

242 a defective social organization,

243 are we to attribute

244 that miserable and prostrate situation

245 of our affairs

246 which, immediately before

247 the establishment

248 of our present National Constitution,

249 filled every intelligent lover

250 of his country

251 with affliction and mortification.

252To the institution

253 of a competent judiciary,

254 little less than to any one provision

255 in that Constitution,

256 is to be ascribed

257 the rapid and salutary renovation

258 of our affairs,

259 which succeeded.

260The enumeration*

261 of the component parts

262 of the judicial power,

263 in the Constitution,

264 has an evident eye

265 to the several objects

266 which have been stated.

267And considering their vast magnitude,

268 no sound politician will doubt

269 that the principal question,

270 with the administration,

271 ought to be,

272 how to give the greatest efficacy

273 to this essential part

274 of the system;

275 in comparison with which

276 the more or less of expense,

277 must be a matter

278 of trivial moment.

279The difference of expense

280 between an enlarged

281 and a contracted plan,

282 may be deemed an atom

283 in the great scale

284 of national expenditure.

285The fulfilment

286 of the important ends

287 of this part

288 of our constitutional plan,

289 though with but a small degree

290 of additional energy,

291 facility, or convenience,

292 must infinitely overbalance

293 the consideration

294 of such difference of expense.

295The number of causes

296 which have been tried

297 in these courts,

298 as already intimated,

299 can furnish but a very imperfect test,

300 by which to decide

301 upon their utility or necessity.

302Their existence alone

303 has a powerful and salutary effect.

304The liberty to use them,

305 even where it is not often exercised,

306 inspires confidence

307 in the intercourse of business.

308They are viewed

309 as beneficent guardians,

310 whose protection may be claimed

311 when necessary.

312They induce caution

313 in the State Courts,

314 and promote in them

315 a more attentive,

316 if not a more able

317 administration of justice.

318Though in some districts of the Union,

319 the Federal Courts

320 are seldom resorted to,

321 in others they are used

322 in an extensive degree,

323 particularly as between foreigners

324 and citizens,

325 and between citizens

326 of different States.

327That their organization

328 throughout the United States

329 ought to be uniform,

330 will not be denied,

331 and it is evident

332 that it ought to be regulated

333 by the situation of those parts

334 in which a greater degree

335 of employment

336 denotes the courts

337 to be most necessary.

338Of consequence,

339 if the quantity of business

340 were at all a guide,

341 the scenes

342 in which there is the greatest

343 employment

344 for the Federal Courts,

345 ought to furnish

346 the rule of computation;

347 it ought not to be sought for

348 in the aggregate of business,

349 throughout the Union.

350In reference to this point,

351 it is likewise material to observe

352 that, from the manner

353 in which the Federal Courts

354 were constituted,

355 previous to the last arrangement,

356 the organization of the State Courts

357 was so much better adapted

358 to expedition,

359 as to afford a strong motive

360 for giving them a preference.

361The establishment of Circuit Courts,

362 as now modified,

363 will vary that circumstance,

364 and thus attract more business;

365 but it is evident

366 that it must require

367 a course of years

368 fully to exemplify its operation.

369To attempt, therefore,

370 to draw important inferences

371 from the short experience

372 hitherto had,

373 is worse than puerile.

374Lucius Crassus.

375New-York Evening Post, December 29, 1801.

376* "SEC. II. The judicial power shall extend

377 to all cases in law and equity,

378 arising under this Constitution;

379 the laws of the United States,

380 and treaties made,

381 or which shall be made,

382 under their authority;

383 to all cases affecting ambassadors,

384 other public ministers and consuls;

385 to all cases of admiralty

386 and maritime jurisdiction;

387 to controversies

388 to which the United States

389 shall be a party;

390 to controversies

391 between two or more States;

392 between a State

393 and citizens of another State;

394 between citizens

395 of different States;

396 between citizens of the same State

397 claiming lands under grants

398 of different States,

399 and between a State,

400 or the citizens thereof,

401 and foreign States,

402 citizens or subjects."