James Madison Papers

To James Madison from William Wirt, 21 June 1816

Richmond June 21st. 1816


*I presume it is not improper to address you, as filling the department which superintends the execution of the laws of the U.S. as to a difficulty which has presented itself, in the execution of a duty devolved on me, as the District atto’ of Virginia, under the act of the 3d. of March 1815, entitled "an act to vest more effectually in the State courts and in the district courts of the U.S. jurisdiction in the cases therein mentioned". The first section of the law gives jurisdiction to the state courts "of all complaints, suits, and prosecutions for taxes, duties, fines, penalties and forfeitures arising and payable under any of the acts passed or to be passed" for the collection of any direct tax, or internal duties of the U.S. The second section, provides that in all suits and prosecutions, instituted on behalf of the U.S. in the court of any state, the process, proceedings, Judgment, and execution shall not be delayed, suspended, or in any way barred and defeated, by reason of any law of any State &c. and the same section gives an appeal to the circuit court of the U.S. from the decisions of the state courts. It was, I presume, on the supposition that the state Courts would exercise the jurisdiction thus conferred on them that the district attos. were authorized and directed by the 1st. section of this law to appoint deputies in the county courts of the State. But, so far as respects the state of Virginia, the whole object of these appointments has been frustrated by a series of adjudications in our courts; for, in the first place, the general court (the court of the highest jurisdiction over offences against public laws) has refused to exercise jurisdiction under any penal law of the U.S.

2. The same court has declared that although the state courts may take jurisdiction of bonds given to the U.S. it could only be as matter of contract, and according to the form of proceeding practised under the laws of the state, but not according to the summary forms prescribed by the laws of the U.S. which defeats the purpose of the act in question, and is incompatible with that dispatch which is requisite for the raising of revenue

3. The court of appeals has decided that no appeal will lie from a state to a federal court, whereas by the act in question the jurisdiction is given to the state courts only on the condition that the decisions of the state courts shall be subject to the revision of the federal courts

Now, if I appoint deputies their oath of office will compel them to carry to the state courts the only subjects of which they will take cognizance; claims of debt by bond; and those subjects once carried into the state courts remain subject to all the dilatory forms of proceeding allowed by the state laws and without any remedy by appeal to courts of the U.S.

It seems to me, therefore, that the appointment of deputies, under those unexpected decisions of our state courts would be in a great measure vain from the refusal of the State courts to act, and even where they would take cognizance that such appointment would be so far from effectuating that it would defeat the purposes of congress in directing their appointment

I beg your instruction, or if I am wrong in directing this inquiry to you, that you will throw my letter into the proper channel to recieve an answer I have the honor to be, very respectfully, Sir, Your Obt Sert.

Wm. Wirt

P.S. It will be observed that the act of congress directing the appointment of attornies devolved this duty on my predecessor. I believe he did not exercise it in any instance; and although I have had the opportunity of conferring with him on the subject, I think it highly probable that his omission proceeded from the considerations which I have stated. I have concluded not to make the appointments without farther order.

James Madison eqr.
President of the U.S.

* See R. Rush to J.M. June 29 1816

DLC: Papers of James Madison.

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