Establishment of Inferior Courts
[5 June 1787]
Rutledge moved to strike out the clause of the ninth resolution providing for inferior national courts. He argued that the state courts “ought to be left in all cases to decide in the first instance” and that the right of appeal to the supreme national tribunal was sufficient to secure the national rights (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 124).
Mr. Madison observed that unless inferior tribunals were dispersed throughout the Republic with final jurisdiction in many cases, appeals would be multiplied to a most oppressive degree; that besides, an appeal would not in many cases be a remedy. What was to be done after improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the supreme bar would oblige the parties to bring up their witnesses, tho’ ever so distant from the seat of the Court. An effective Judiciary establishment commensurate to the legislative authority, was essential. A Government without a proper Executive & Judiciary would be the mere trunk of a body, without arms or legs to act or move.1
1. King’s version:
“Madison proposes to vest the Genl. Govt. with authority to erect an Independent Judicial, coextensive wt. the Nation” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 128).
After Rutledge’s motion passed, Wilson and JM moved “to add to Resol: 9 the words following ‘that the National Legislature be empowered to institute inferior tribunals.’ They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them. They repeated the necessity of some such provision” (Ms [DLC]).