historicaldocuments:anti-federalist:antifed82
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+ | ====== ANTIFEDERALIST No. 82 ====== | ||
+ | ===== The Power Of The Judiciary (Part 4) ===== | ||
+ | ---- | ||
+ | Part 1: Part 2 of " | ||
+ | Part 2: The final segment of the 15th essay (March 20, 1788 New York Journal) | ||
+ | ---- | ||
+ | It may still be insisted that this clause [on appellate jurisdiction] does not take away the trial by jury on appeals, but that this may be provided for by the legislature, | ||
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+ | The natural meaning of this paragraph seems to be no more than this, that Congress may declare, that certain cases shall not be subject to the appellate jurisdiction, | ||
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+ | But the operation of the appellate power in the supreme judicial of the United States, would work infinitely more mischief than any such power can do in a single state. | ||
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+ | The trouble and expense to the parties would be endless and intolerable. No man can say where the supreme court are to hold their sessions; the presumption is, however, that it must be at the seat of the general government. In this case parties must travel many hundred miles, with their witnesses and lawyers, to prosecute or defend a suit. No man of middling fortune, can sustain the expense of such a law suit, and therefore the poorer and middling class of citizens will be under the necessity of submitting to the demands of the rich and the lordly, in cases that will come under the cognizance of this court. If it be said, that to prevent this oppression, the supreme court will sit in different parts of the union, it may be replied, that this would only make the oppression somewhat more tolerable, but by no means so much as to give a chance of justice to the poor and middling class. It is utterly impossible that the supreme court can move into so many different parts of the Union, as to make it convenient or even tolerable to attend before them with witnesses to try causes from every part of the United States. If to avoid the expense and inconvenience of calling witnesses from a great distance, to give evidence before the supreme court, the expedient of taking the deposition of witnesses in writing should be adopted, it would not help the matter. It is of great importance in the distribution of justice that witnesses should be examined face to face, that the parties should have the fairest opportunity of cross examining them in order to bring out the whole truth. There is something in the manner in which a witness delivers his testimony which can not be committed to paper, and which yet very frequently gives a complexion to his evidence, very different from what it would bear if committed to writing. Besides, the expense of taking written testimony would be, enormous. Those who are acquainted with the costs that arise in the courts, where all the evidence is taken in writing, well know that they exceed beyond all comparison those of the common law courts, where witnesses are examined viva voce. | ||
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+ | The costs accruing in courts generally advance with the grade of the courts. Thus the charges attending a suit in our common pleas, is much less than those in the supreme court, and these are much lower than those in the court of chancery. Indeed, the costs in the last mentioned court, are in many cases so exorbitant and the proceedings so dilatory that the suitor had almost as well give up his demand as to prosecute his suit. We have just reason to suppose, that the costs in the supreme general court will exceed either of our courts. The officers of the general court will be more dignified than those of the states, the lawyers of the most ability will practice in them, and the trouble and expense of attending them will be greater. From all these considerations, | ||
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+ | From these remarks it appears, that the administration of justice under the powers of the judicial will be dilatory; that it will be attended with such an heavy expense as to amount to little short of a denial of justice to the poor and middling class of people who in every government stand most in need of the protection of the law; and that the trial by jury, which has so justly been the boast of our forefathers as well as ourselves is taken away under them. | ||
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+ | These extraordinary powers in this court are the more objectionable, | ||
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+ | The want of ability or integrity, or a disposition to render justice to every suitor, has not been objected against the courts of the respective states. | ||
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+ | So far as I have been informed, the courts of justice in all the states have ever been found ready to administer justice with promptitude and impartiality according to the laws of the land. It is true in some of the states, paper money has been made, and the debtor authorised to discharge his debts with it, at a depreciated value; in others, tender laws have been passed, obliging the creditor to receive on execution other property than money in discharge of his demand; and in several of the states laws have been made unfavorable to the creditor and tending to render property insecure. | ||
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+ | But these evils have not happened from any defect in the judicial departments of the states. The courts indeed are bound to take notice of these laws, and so will the courts of the general government be under obligation to observe the laws made by the general legislature not repugnant to the constitution. But so far have the judicial been from giving undue latitude of construction to laws of this kind, that they have invariably strongly inclined to the other side. All the acts of our legislature, | ||
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+ | No pretext therefore can be formed, from the conduct of the judicial courts [of the states], which will justify giving such powers to the supreme general court. For their decisions have been such as to give just ground of confidence in them, that they will finally adhere to the principles of rectitude; and there is no necessity of lodging these powers in the [federal] courts, in order to guard against the evils justly complained of, on the subject of security of property under this constitution. For it has provided, "that no state shall emit bills of credit, or make any thing but gold and silver coin a tender in payment of debts." | ||
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+ | The courts of the respective states might therefore have been securely trusted with deciding all cases between man and man, whether citizens of the same state or of different states, or between foreigners and citizens. Indeed, for ought I see, every case that can arise under the constitution or laws of the United States ought in the first instance to be tried in the court of the state, except those which might arise b@tween states, such as respect ambassadors, | ||
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+ | This method would preserve the good old way of administering justice, would bring justice to every man's door, and preserve the inestimable right of trial by jury. It would be following, as near as our circumstances will admit, the practice of the courts in England, which is almost the only thing I would wish to copy in their government. | ||
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+ | But as this system now stands, there is to be as many inferior courts as Congress may see fit to appoint, who are to be authorised to originate and in the first instance to try all the cases falling under the description of this article. There is no security that a trial by jury shall be had in these courts, but the trial here will soon become, as it is in Massachusetts' | ||
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+ | To obviate the objections made to the judicial power, it has been said, that the Congress, in forming the regulations and exceptions which they are authorised to make respecting the appellate jurisdiction, | ||
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+ | The just way of investigating any power given to a government, is to examine its operation supposing it to be put in exercise. If upon inquiry, it appears that the power, if exercised, would be prejudicial, | ||
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+ | I have, in the course of my observation on this constitution, | ||
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+ | Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, | ||
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+ | If the states remonstrated, | ||
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+ | BRUTUS. | ||
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historicaldocuments/anti-federalist/antifed82.txt · Last modified: 2021/02/23 16:15 by 127.0.0.1