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The Examination Number V, [29 December 1801]

The Examination.1
Number V.

[New York, December 29, 1801]

In the rage for change, or under the stimulus of a deep-rooted animosity against the former administrations, or for the sake of gaining popular favor by a profuse display of extraordinary zeal for economy, even our judiciary system has not passed unassailed.2 The attack here is not so open as that on the revenue; but when we are told that the states individually have “principal care of our persons, our property and our reputation; constituting the great field of human concerns; and that therefore we may well doubt whether our organization is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily and sometimes injuriously to the service they were meant to promote;” when afterwards it is observed that “the Judiciary System will of course present itself to the contemplation of Congress;” and when it appears that pains had been taken to form and communicate a numerical list of all the causes decided since the first establishment of the courts,3 in order that Congress may be able to judge of the proportion which the institution bears to the business; with all these indications it is not to be misunderstood that the intention was unequivocally to recommend material alterations in the system.

No bad thermometer of the capacity of our Chief Magistrate for government is furnished by the rule which he offers for judging of the utility of the Federal Courts; namely, the exact number of causes which have been by them decided. There is hardly any stronger symptom of a pigmy mind, than a propensity to allow greater weight to secondary than to primary considerations.

It ought at least to have been adverted to, that if this circumstance were a perfect criterion, it is yet too early to apply it, especially to the courts recently erected:4 And it might have merited reflection, that it would have been prudent to wait for a more advanced period of the Presidential term, to ascertain what influence the great change which has lately happened in our public functionaries may have on the confidence, which in many parts of the Union has heretofore been reposed in the State courts, so as to prevent a preference of those of the United States.

But to enable us duly to appreciate the wisdom of the projected innovation, it is necessary to review the objects which were designed to be accomplished by the arrangement of the Judiciary power as it is seen in the constitution and to examine the organization which has been adopted to give effect to those objects.

It is well known to all who were acquainted with the situation of our public affairs when the constitution was framed, and it is to be inferred from the provisions of the instrument itself, that the objects contemplated, were, 1st. To provide a faithful and efficient organ for carrying into execution the laws of the United States, which otherwise would be a dead letter. 2d. To secure the fair interpretation and execution of our treaties with foreign nations. 3d. To maintain harmony between the individual states; not only by an independent and impartial mode of determining controversies between them, but by frustrating the effects of partial laws in any one, injurious to the rights of the citizens of another. 4th. To guard generally against the invasions of property and right by fraudulent and oppressive laws of particular states enforced by their own tribunals. 5th. To guard the rights and conciliate the confidence of foreigners, by giving them the option of tribunals created by and responsible to, the general government; which having the immediate charge of our external relations, including the care of our national peace, might be expected to be more tenacious of such an administration of justice as would leave to the citizens of other countries no real cause of complaint. 6th. To protect reciprocally the rights and inspire mutually the confidence of the citizens of different states in their intercourse with each other, by enabling them to resort to Tribunals so constituted as to be essentially free from local bias or partiality. 7th. To give the citizens of each state a fair chance of impartial justice thro’ the medium of those Tribunals, in cases in which the titles to property might depend on the conflicting grants of different states. These were the immensely important objects to be attained by the institution of an adequate Judiciary power in the government of the United States. Nor did its institution depend upon mere speculative opinion, tho’ indeed even that would have been sufficient to indicate the expediency of the measure: but experience had actually in a variety of ways demonstrated its necessity.5

The Treaties of the United States had been infracted by state laws, put in execution by state judicatories.6 The rights of property had been invaded by the same means, in numerous instances, as well with respect to foreigners7 as to citizens, as well between citizens of different states, as between citizens of the same state. There were many cases in which lands were held or claimed under adverse grants of different states,8 having rival pretensions; and in respect to which the local tribunals, even if not fettered by the local laws, could hardly be expected to be impartial. In several of the states the courts were so constituted as not to afford sufficient assurance of a pure, enlightened and independent administration of justice; an evil which in some of them still continues. From these different sources serious mischiefs had been felt. The interests of the United States, in their foreign concerns, had suffered; their reputation had been tarnished; their peace endangered; their mutual harmony had been disturbed or menaced; creditors had been ruined or in a very extensive degree much injured; confidence in pecuniary transactions had been destroyed and the springs of industry had been proportionably relaxed. To these circumstances, as much, perhaps, as to any other, that accompanied a defective social organization, are we to attribute that miserable and prostrate situation of our affairs, which immediately before the establishment of our present National Constitution, filled every intelligent lover of his country with affliction and mortification. To the institution of a competent judiciary, little less than to any one provision in that constitution, is to be ascribed the rapid and salutary renovation of our affairs which succeeded.

The enumeration* of the component parts of the Judicial power, in the constitution, has an evident eye to the several objects which have been stated: And considering their vast magnitude, no sound politician will doubt that the principal question, with the administration, ought to be, how to give the greatest efficacy to this essential part of the system; in comparison with which the more or less of expence, must be a matter of trivial moment. The difference of expence between an enlarged and a contracted plan, may be deemed an atom in the great scale of national expenditure. The fulfillment of the important ends of this part of our constitutional plan, though with but a small degree of additional energy, facility, or convenience, must infinitely overbalance the consideration of such difference of expence.

The number of causes which have been tried in these courts, as already intimated, can furnish but a very imperfect test by which to decide upon their utility or necessity. Their existence alone has a powerful and salutary effect. The liberty to use them, even where it is not often exercised, inspires confidence in the intercourse of business. They are viewed as beneficent guardians whose protection may be claimed when necessary. They induce caution in the state courts, and promote in them, a more attentive, if not a more able administration of justice. Though in some districts of the union the federal courts are seldom resorted to, in others they are used in an extensive degree, particularly as between foreigners and citizens, and between citizens of different states.

That their organization throughout the U. States ought to be uniform, will not be denied; and it is evident that it ought to be regulated by the situation of those parts in which a greater degree of employment denotes the courts to be most necessary: Of consequence, if the quantity of business were at all a guide, the scenes in which there is the greatest employment for the federal courts, ought to furnish the rule of computation; it ought not to be sought for in the aggregate of business, throughout the union. In reference to this point, it is likewise material to observe that, from the manner in which the federal courts were constituted, previous to the last arrangement, the organization of the state courts was so much better adapted to expedition, as to afford a strong motive for giving them a preference. The establishment of circuit courts, as now modified, will vary that circumstance, and therefore, attract more business; but it is evident that, it must require a course of years, fully to exemplify its operations, which cannot be seen in a few months, or in a single year. To attempt, therefore, to draw important inferences from the short experience hitherto had, is worse than puerile.

Lucius Crassus.

New-York Evening Post, December 29, 1801.

2For the text of Thomas Jefferson’s full statement on the judiciary in his first annual message to Congress of December 8, 1801, see “The Examination Number I,” December 17, 1801, note 1.

3For these lists, see the documents “Accompanying the President’s communications to Congress of the 8th of December, 1801” (RG 233, Records of the United States House of Representatives, Original Messages from the President, 7th Congress, 1st Session, National Archives). These lists contain the number and types of lawsuits decided and pending in the circuit courts of the United States for all the districts except Maryland from 1790 to June 15, 1801. A note on the blank list for Maryland reads: “A part of the Return from Maryland has been mislaid through accident—and the Clerk of the Court has been written to to supply the portion which is missing.” See also “List of Suits Decided and Depending in the Courts of the United States” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Miscellaneous, I, 319–25), which was communicated to Congress on February 26, 1802. This document contains all the lists included in the original document, as well as a letter from James Madison to Jefferson, dated February 25, 1802, a list entitled “Recapitulation of the suits in the circuit courts of the United States, and the district courts for Maine, Kentucky and Tennessee,” “Statement concerning suits in the Circuit Court of the United States, for the District of Maryland,” and “Statement concerning suits in the District Court of the United States, for the District of Kentucky.” For the inaccuracy and inadequacy of these lists, see Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (New York and London, 1971), 569–73, 795–813.

4Six new Federal circuit courts and seven additional district courts were established by “An Act to provide for the more convenient organization of the Courts of the United States” (2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 89–100 [February 13, 1801]). See Oliver Wolcott, Jr., to H, December 25, 1800, note 2.

5For H’s earlier views on the judiciary in the new government under the Constitution, which he discusses in this and the following paragraph, see “The Federalist No. 78,” May 28, 1788; “No. 79,” May 28, 1788; “No. 80,” May 28, 1788;” “No. 81,” May 28, 1788; “No. 82,” May 28, 1788; “No. 83,” May 28, 1788.

7In Georgia, for example, only aliens who were citizens of friendly nations could rent or own land. See “An Act for ascertaining the Rights of Aliens, and pointing out a Mode for the Admission of Citizens” (Georgia Laws, 1785 Sess. [February 7, 1785]).

8See Goebel, Law Practice description begins Julius Goebel, Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary (New York and London, 1964–). description ends , I, 545–52.

9Article III, Section 2.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

* “Sec. II. The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admirality and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”9

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