James Madison Papers

Judiciary Bill, [29 August] 1789

Judiciary Bill

[29 August 1789]

The judiciary bill, originating in the Senate, had been sent to the House on 20 July. Consideration of it had been postponed until the House completed the business of amendments to the Constitution. Livermore’s motion to strike the third section (providing for district courts) provoked a lengthy debate as to whether inferior federal tribunals were necessary.

Mr. Madison Said it would not be doubted that some judiciary system was necessary to accomplish the objects of the government, and that it ought to be commensurate with the other branches of the government. Under the late confederation, it could scarcely be said, that there was any real legislative power; there was no executive branch, and the judicial was so confined as to be of little consequence; in the new constitution a regular system is provided; the legislative power was made effective for its objects; the executive was co-extensive with the legislative, and it was equally proper that this should be the case with the judiciary. If the latter be concurrent with the state jurisdictions, it does not follow that it will for that reason be impracticable. It is admitted that a concurrence exists in some cases between the legislative authorities of the federal and state governments; and it may be safely affirmed that there is more, both of novelty and difficulty in that arrangement than there will be in the other.

To make the state courts federal courts, is liable to insuperable objections. Not to repeat that the moment that is done, they will from the highest down to the county courts, hold their tenures during good behavior, by virtue of the constitution. It may be remarked that in another point of view, it would violate the constitution by usurping a prerogative of the supreme executive of the United States. It would be making appointments which are expressly vested in that department, not indeed by nomination, but by description, which would amount to the same thing. But laying these difficulties aside, a review of the constitution of the courts in many states will satisfy us that they cannot be trusted with the execution of the federal laws. In some of the states it is true they might, and would be safe and proper organs of such a jurisdiction; but in others they are so dependent on the state legislatures, that to make the federal laws dependent on them, would throw us back into all the embarrassments which characterized our former situation. In Connecticut the judges are appointed annually by the legislature, and the legislature is itself the last resort in civil cases. In Rhode-Island, which we hope soon to see united with the other states, the case is at least as bad. In Georgia, even under their former constitution, the judges are triennially appointed, and in a manner by no means unexceptionable. In Pennsylvania they hold their places for seven years only. Their tenures leave a dependence, particularly for the last year or two of the term, which forbid a reliance on judges who feel it. With respect to their salaries, there are few states, if any, in which the judges stand on independent ground. On the whole, he said, he did not see how it could be made compatible with the constitution, or safe to the federal interests to make a transfer of the federal jurisdiction to the state courts, as contended for by the gentlemen who oppose the clause in question.

Cong. Register description begins Thomas Lloyd, comp., The Congressional Register; or, History of the Proceedings and Debates of the First House of Representatives … (2 vols.; New York, 1789; Evans 22203–4). description ends , II, 302–3 (also reported fully in Gazette of the U.S., 5 Sept. 1789). Livermore’s motion was defeated on 31 Aug., 31 to 11.

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