Thomas Lloyds Notes of the Pennsylvania Ratification Convention (December 7, 1787)

JAMES WILSON: This is the first time that the Article respecting the judicial department has come directly before us. I shall therefore take the liberty of making such observations as will enable honorable gentlemen to see the extent of the views of the Convention in forming this Article, and the extent of its probable operation.

This will enable gentlemen to bring before this house their objections more pointedly than, without any explanation, could be done. Upon a distinct examination of the different powers, I presume it will be found, that not one of them is unnecessary. I will go further- there is not one of them but will be discovered to be of such nature, as to be attended with very important advantages. I shall beg leave to premise one remark, that the Convention, when they formed this system, did not expect they were to deliver themselves, their relations, and their posterity into the hands of such men as are described by the honorable gentlemen in opposition. They did not suppose that the legislature under this Constitution would be an association of demons. They thought that a proper attention would be given by the citizens of the United States, at the general election, for members to the House of Representatives; they also believed, that the particular states would nominate as good men as they have heretofore done, to represent them in the Senate. If they should now do otherwise, the fault will not be in Congress, but in the people or states themselves. I have mentioned oftener than once, that. for a people wanting to themselves, there is no remedy.1

The Convention thought further (for on this very subject, there will appear caution, instead of imprudence in their transactions) they considered, that if suspicions are to be entertained, they are to be entertained with regard to the objects in which government have separate interests and separate views, from the interests and views of the people. To say that officers of government will oppress, when nothing can be got by oppression, is making an inference, bad as human nature is, that cannot be allowed. When persons can derive no advantage from it, it can never be expected they will sacrifice either their duty or their popularity.

Whenever the general government can be a party against a citizen, the trial is guarded and secured in the Constitution itself, and therefore it is not in its power to oppress the citizen. In the case of treason, for example, though the prosecution is on the part of the United States, yet the Congress can neither define nor try the crime. If we have recourse to the history of the different governments that have hitherto subsisted, we shall find that a very great part of their tyranny over the people has arisen from the extension of the definition of treason. Some very remarkable instances have occurred, even in so free a country as England. If I recollect right, there is one instance that puts this matter in a very strong point of view. A person possessed a favorite buck, and on finding it killed wished the horns in the belly of the person who killed it; this happened to be the king; the injured complainant was tried and convicted of treason, for wishing the king's death.

I speak only of free governments, for in despotic ones, treason depends entirely upon the will of the prince. Let this subject be attended to, and it will be discovered where the dangerous power of the government operates to the oppression of the people. Sensible of this, the Convention has guarded the people against it, by a particular and accurate definition of treason.

It is very true, that trial by jury is not mentioned in civil cases; but I take it, that it is very improper to infer from hence, that it was not meant to exist under this government. Where the people are represented-where the interest of government cannot be separate from that of the people (and this is the case in trial between citizen and citizen)-the power of making regulations with respect to the mode of trial may certainly be placed in the legislature; for I apprehend that the legislature will not do wrong in an instance, from which they can derive no advantage. These were not all the reasons that influenced the Convention to leave it to the future Congress to make regulations on this head.

By the constitutions of the different states, it will be found that no particular mode of trial by jury could be discovered that would suit them all. The manner of summoning jurors, their qualifications, of whom they should consist, and the course of their proceedings are all different, in the different states; and I presume it will be allowed a good general principle, that in carrying into effect the laws of the general government by the judicial department, it will be proper to make the regulations as agreeable to the habits and wishes of the particular states as possible; and it is easily discovered that it would have been impracticable, by any general regulation, to have given satisfaction to all. We must have thwarted the custom of eleven or twelve to have accommodated anyone. Why do this, when there was no danger to be apprehended from the omission? We could not go into a particular detail of the manner that would have suited each state.

Time, reflection, and experience will be necessary to suggest and mature the proper regulations on this subject; time and experience were not possessed by the Convention; they left it therefore to be particularly organized by the legislature-the representatives of the United States, from time to time, as should be most eligible and proper. Could they have done better?

I know in every part, where opposition has risen, what a handle has been made of this objection; but I trust upon examination it will be seen that more could not have been done with propriety. Gentlemen talk of bills of rights! What is the meaning of this continual clamor, after what has been urged, though it may be proper in a single state, whose legislature calls itself the sovereign and supreme power? Yet it would be absurd in the body of the people, when they are delegating from among themselves persons to transact certain business, to add an enumeration of those things, which they are not to do. "But trial by jury is secured in the bill of rights of Pennsylvania; the parties have a right to trials by jury, which OUGHT to be held sacred," and what is the consequence? There has been more violations of this right in Pennsylvania, since the Revolution, than are to be found in England, in the course of a century.

I hear no objection made to the tenure by which the judges hold their offices. It is declared that the judges shall hold them during good behavior; nor to the security which they will have for their salaries. They shall at stated times receive for their services, a compensation which shall not be diminished during their continuance in office.

The Article respecting the judicial department is objected to as going too far and is supposed to carry a very indefinite meaning. Let us examine this-the judicial power shall extend to all cases in law and equity, arising under this Constitution and the laws of the United States. Controversies may certainly arise under this Constitution and the laws of the United States, and is it not proper that there should be judges to decide them? The honorable gentleman from Cumberland (Robert Whitehill) says, that laws may be made inconsistent with the Constitution; and that therefore the powers given to the judges are dangerous; for my part, Mr. President, I think the contrary inference true. If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto will not have the force of law.

The judicial power extends to all cases arising under treaties made, or which shall be made, by the United States. I shall not repeat, at this time, what has been said with regard to the power of the states to make treaties; it cannot be controverted, that when made, they ought to be observed. But it is highly proper that this regulation should be made; for the truth is, and I am sorry to say it, that in order to prevent the payment of British debts, and from other causes, our treaties have been violated, and violated too by the express laws of several states in the Union. pennsylvania, to her honor be it spoken, has hitherto done no act of this kind; but it is acknowledged, on all sides, that many states in the Union have infringed the treaty; and it is well-known, that when the minister of the United States John Adams] made a demand of Lord Carmarthen, of a surrender of the western posts, he told the minister, with truth and justice, "The treaty, under which you claim those possessions, has not been performed on your part. Until that is done, those possessions will not be delivered up." This clause, sir, will show the world, that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry them into effect, let the legislatures of the different states do what they may.

The power of the judges extends to all cases affecting ambassadors, other public ministers, and consuls. I presume very little objection will be offered to this clause; on the contrary, it will be allowed proper and unexceptionable.

This will also be allowed with regard to the following clause, "all cases of admiralty and maritime jurisdiction."

The next is "to controversies to which the United States shall be a party." Now I apprehend it is something very incongruous, that, because the United States are a party, it should be urged, as an objection, that their judges ought not to decide, when the universal practice of all nations have and unavoidably must admit of this power. But say the gentlemen, the sovereignty of the states is destroyed, if they should be engaged in a controversy with the United States, because a suitor in a court must acknowledge the jurisdiction of that court, and it is not the custom of sovereigns to suffer their names to be made use of in this manner. The answer is plain and easy. The government of each state ought to be subordinate to the government of the United States.

"To controversies between two or more states." This power is vested in the present Congress, but they are unable, as I have already shown [4 December, A. M] , to enforce their decisions. The additional power of carrying their decrees into execution, we find is therefore necessary, and I presume no exception will be taken to it.

"Between a state, and citizens of another state." When this power is attended to, it will be found to be a necessary one. Impartiality is the leading feature in this Constitution; it pervades the whole. When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing.

"Between citizens of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." This part of the jurisdiction, I presume, will occasion more doubt than any other part, and at first view it may seem exposed to objections well-founded and of great weight; but I apprehend this can be the case only at first view. Permit me to observe here, with regard to this power, or any other of the foregoing powers given to the Federal Court, that they are not exclusively given. In all instances the parties may commence suits in the courts of the several states. Even the United States may submit to such decision if they think proper. Though the citizens of a state, and the citizens or subjects of foreign states, may sue in the Federal Court, it does not follow that they must sue. These are the instances in which the jurisdiction of the United States may be exercised; and we have all the reason in the world to believe, that it will be exercised impartially; for it would be improper to infer, that the judges would abandon their duty, then rather for being independent. Such a sentiment is contrary to experience and ought not to be hazarded. If the people of the United States are fairly represented, and the President and Senate are wise enough to choose men of abilities and integrity for judges, there can be no apprehension; because, as I mentioned before, the government can have no interest in injuring the citizens.12

But when we consider the matter a little further, is it not necessary, if we mean to restore either public or private credit, that foreigners, as well as ourselves, have a just and impartial tribunal to which they may resort? I would ask, how a merchant must feel to have his property lay at the mercy of the laws of Rhode Island I ask further, how will a creditor feel, who has his debts at the mercy of tender laws in other states? It is true, that under this Constitution, these particular iniquities may be restrained in future; but, sir, there are other ways of avoiding payment of debts. There have been installment acts, and other acts of a similar effect. Such things, sir, destroy the very sources of credit.

Is it not an important object to extend our manufactures and our commerce? This cannot be done unless a proper security is provided for the regular discharge of contracts. This security cannot be obtained unless we give the power of deciding upon those contracts to the general government.

I will mention further, an object that I take to be of particular magnitude, and I conceive these regulations will produce its accomplishment. The object, Mr. President, that I allude to is the improvement of our domestic navigation, the instrument of trade between the several states. That decay of private credit which arose from the destruction of public credit, by a too inefficient general government, will be restored, and this valuable intercourse among ourselves must give an increase to those useful improvements, that will astonish the world. At present, how are we circumstanced! Merchants of eminence will tell you that they can trust their correspondents without law; but they cannot trust the laws of the state in which their correspondents live. Their friend may die, and may be succeeded by a representative of a very different character. If there is any particular objection that did not occur to me on this part of the Constitution, gentlemen will mention it; and I hope when this Article is examined, it will be found to contain nothing but what is proper to be annexed to the general government.13 The next clause, so far as it gives original jurisdiction in cases affecting ambassadors, apprehend is perfectly unexceptionable.14

It was thought proper to give the citizens of foreign states full opportunity of obtaining justice in the general courts, and this they have by its appellate jurisdiction; therefore, in order to restore credit with those foreign states, that part of the Article is necessary. I believe the alteration that will take place in their minds, when they learn the operation of this clause, will be a great and important advantage to our country, nor is it any thing but justice; they ought to have the same security against the state laws that may be made, that the citizens have, because regulations ought to be equally just in the one case as in the other. Further, it is necessary, in order to preserve peace with foreign nations. Let us suppose the case, that a wicked law is made in some one of the states, enabling a debtor to pay his creditor with the fourth, fifth, or sixth part of the real value of the debt, and this creditor, a foreigner, complains to his prince or sovereign, of the injustice that has been done to him. What can that prince or sovereign do? Bound by inclination as well as duty to redress the wrong his subject sustains from the hand of perfidy, he cannot apply to the particular guilty state, because he knows that by the Articles of Confederation, it is declared that no state shall enter into treaties. He must therefore apply to the United States. The United States must be accountable. "My subject has received a flagrant injury; do me justice, or I will do myself justice." If the United States are answerable for the injury, ought they not to possess the means of compelling the faulty state to repair it? They ought, and this is what is done here. For now, if complaint is made in consequence of such injustice, Congress can answer, "why did not your subject apply to the General Court, where the unequal and partial laws of a particular state would have had no force?"

In two cases the Supreme Court has original jurisdiction; that affecting ambassadors, and when a state shall be a party. It is true, it has appellate jurisdiction in more, but it will have it under such restrictions as the Congress shall ordain. I believe that any gentleman, possessed of experience or knowledge on this subject, will agree that it was impossible to go further with any safety or propriety, and that it was best left in the manner in which it now stands.

"In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact." The jurisdiction as to fact may be thought improper, but those possessed of information on this head see that it is necessary. We find it essentially necessary from the ample experience we have had in the courts of admiralty with regard to captures. Those gentlemen, who during the late war had their vessels retaken, know well what a poor chance they would have had, when those vessels were taken into other states and tried by juries, and in what a situation they would have been, if the court of appeals had not been possessed of authority to reconsider and set aside the verdict of those juries. Attempts were made by some of the states to destroy this power, but it has been confirmed in every instance.

There are other cases in which it will be necessary; and will not Congress better regulate them as they rise from time to time, than could have been done by the Convention? Besides, if the regulations shall be attended with inconvenience, the Congress can alter them as soon as discovered. But any thing done in Convention must remain unalterable, but by the power of the citizens of the United States at large.

I think these reasons will show, that the powers given to the Supreme Court are not only safe, but constitute a wise and valuable part of this system.