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JURISDICTION & THE FIRST JUDICIARY ACT

         The Federal Judiciary of September 24, 1789, was Senate Bill No. 1, in the First Session of the First Congress. No adequate account of this famous legislation has ever been written; and Ellsworth's latest able and careful biographer stated in 1905 that "no complete history of the bill, can now be written." [The authors go on to say that the original draft and bills have been found since that statement in 1905] The disclosure of this new evidence now makes it possible, by comparison with the statute as finally enacted, to write, for the first time, an accurate history of the progress of the Act through the Congress, and of the variations of the final Act from the original Draft Bill. Such a comparison reveals certain legal and historical surprises, and makes it certain that Madison was wrong in stating, in 1836 (when he was eighty five years of age and probably of failing memory), that "it was not materially changed in its passage into a law." William Garret Brown stated "There is enough in the Journals of the two Houses and in the debates of the House of Representatives to sustain Madison's impression that it went through without any radical change." The new facts disprove this statement.

       Four of the great changes may be particularly mentioned at this point. First, it appears that the United States District and Circuit Courts were intended to take jurisdiction over common law crimes, instead of being confined to crimes specifically defined by Congress, as the Draft Bill when introduced provided, and as later erroneously held by the courts. Second, the jurisdiction of the Circuit Courts in controversies between citizens of different States was made far more restrictive than the Draft Bill intended. Third,-- a surprising feature --The Draft Bill contained no such provision as was contained in the much litigated Section 34 of the Act, which provided that "the laws of the several States, except where the Constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply." [Do you have that, they did not exist. Who and why did they put them there?] This Section 34 was inserted as a Senate Amendment. Fourth -- a fact of still greater consequence -- it is apparent, from the manner in which the original draft of this Senate amendment constituting Section 34 was altered by its proposer before its proposal, that the word "laws" in this Section 34 was not intended to be confined to "statute laws," as Judge Story held in the famous case of Swift v Tyson, but was intended to include the common law of the State as well as the statute law. Had Judge Story seen this original draft of the amendment, it is almost certain that his decision would have been the reverse of what it was. All these points are discussed at greater length later on in this article.

In view of these new sources of information, it seems that a revised history of the Judiciary Act is warranted, since knowledge of the additions, subtractions, deletions and amendments relating to the original draft may possibly afford assistance to Federal Courts in future interpretations of the Act. [People, they do not want to change it for to do so would overturn every case based on the Judiciary Act including Swift v Tyson and the Erie case]

[Rather than going into all 83 pages I will point out one flaw that about which no one in the patriot community has any idea and neither do 98 percent of the lawyers, A.K.A. Judges, etc, etc.

Section 10 of the Draft Bill (Section 9 of the Act) relating to the jurisdiction of the District Courts was changed in several important features. No one of all the changes in the Draft Bill was more significant than the following. The Draft Bill gave to the District Courts, "cognizance of all crimes and offences that shall be cognizable under the authority of the United States and defined by the laws of the same." The italicized words make it clear that the framers of the Bill meant to confine criminal jurisdiction to crimes specifically defined by Congress, and to them only. In Other words, the framers clearly intended to exclude the Federal Courts from jurisdiction over common law crimes, and crimes under the law of nations. It will be recalled that, for many years after the passage of the Act, there was a heated political contest between the Federalist and the Jeffersonian parties as to whether the Federal Courts possessed such jurisdiction -- a contest finally decided in the negative, as urged by the Jeffersonians, supported by the authority of the Federalist Judge, Samuel Chase. Yet many eminent Judges and lawyers maintained at the outset and continued long to maintain, that such jurisdiction over crimes at common law and under the law of nations was intended to be vested in the Federal Courts. It is a singular thing that no one appears to have investigated or cited the action of Congress on the original Draft Bill; for such action would seem to afford the strongest argument in favor of such a jurisdiction. It now appears, on comparison of the Draft Bill with the Act as passed, that by an amendment introduced in and adopted by the Senate, the restrictive clause--" and defined by the laws of the same" - was deliberately stricken out, thus leaving the District Courts with jurisdiction over crimes "cognizable under the authority of the United States," without any limitation. The only rational meaning that can be given to this action striking out the restrictive words is, that Congress did not intend to limit criminal jurisdiction to crimes specifically defined by it. Had the Supreme Court consulted these Senate Files, it is probable that the decisions in United States v. Hudson,(55) in I812, and United States v. Coolidge,(56) in I816, might have been otherwise than they were.

55 7 Cranch (U.S.) 32 (1812).
56 1 Wheat. (U.S.) 415 (I816).

The jurisdiction of the District Courts contained in the Draft Bill was increased by the Senate by adding the words: "and shall also have jurisdiction exclusively of the Courts of the several States of all suits against consuls, or vice consuls, except for offences above the description aforesaid." (57),

An interesting addition to the District Court jurisdiction was made by another amendment. The Draft Bill gave "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made on waters which are navigable by the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas." In view of the extreme fears expressed by opponents of the Federal system lest the right of jury trial should 'be impaired, the jurisdiction thus granted to the District Courts, in the clause beginning with the words "including all seizures," was extraordinary. For in England, the admiralty jurisdiction did not extend to such "seizures under laws of import, navigation or trade," which, consequently, were triable, in that country, in a common law Court by a jury. Although in some of the Colonies, trials of such cases had been had in the Colonial Admiralty Courts without jury, it seems curious that the framers of this Bill should have deliberately included such cases of seizure within the admiralty jurisdiction of the new Federal Courts and should thus have deliberately enlarged the scope of such Courts and consequently the scope of trials without jury, beyond the scope then existent in England. But such was the effect of the phraseology of this portion of the Act, as the Supreme Court later held, Judge Samuel Chase saying that "the reason for putting seizures of this kind in admiralty side of the Court was the great danger to the revenue if such cases should be left to the caprice of juries "--a rather insufficient explanation, in view of the insistence on jury trial shown by the Congress throughout other portions of the Act. [As I have always said any revenue case of any nature be it IRS, driver license etc. is all admiralty and maritime in nature. Maybe now some of the skeptics will believe me if they haven't already read Matthew P Benders, Benedict on Admiralty  and the numerous cases I have cited in the past, which again you will see in the footnotes. I have maintained that State courts had admiralty jurisdiction but many a lawyer argued against me on this so now they eat crow by reading this from The Harvard Law Review. Here is an excerpt from "Benedict on Admiralty" --

[and for those that say Driver laws are not maritime read this from Benedict, it tells you something without an-in-your-face description under the chapter Maritime Crimes]

    But while jurisdiction over such seizures on the seas was given by the Draft Bill to the District Courts sitting in admiralty, no jurisdiction over seizures by the Federal Government made elsewhere than on the high seas was vested in any Federal Court, and hence such cases were left entirely to the State Courts. (59) The Senate, however, now added greatly to the scope of Federal jurisdiction by inserting the following words: "and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States."(6o) These cases, however, were not included within the admiralty jurisdiction of the District Court, but were left as suits at common law to be tried by a jury.

The anxiety to preserve the right of jury trial was shown by the insertion by the Senate, at the end of Section 9 of the Act: "and the trial of issues in (sic) fact in the District Court, in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury." (61) An amendment, drafted by Maclay, and favored by Grayson and Bassett, to provide that" no District Judge shall give a vote in any case of appeal or error from his own decision, but may assign the reason of such his decision," was adopted by the Senate(62)
      Section 10 of the Act was a new Section, introduced by the Senate in order to make special provision as to Federal Courts

  (58) See The Vengeance, 3 Dall. (U.S.) 297 (1796); United States v. Schooner Sally,: Cranch (U.S.) 406 (1805); United States v. Schooner Betsy, 4 Cranch (U.S.) 443 (1808); Whelan v. United States, 7 Cranch (U.S.) 112 (1812:); Ship Octavia, I Wheat. (U.S.) 20 (I816); Woodbury, J., dissenting, Waring v. Clarke, S How. (U.S.) 441, 483 {1847); The Eagle, 8 Wall. (U.S.) I5 (1869). See I Kent, Comm, 367. See also R. W. Greene, arguing in New Jersey Steam Nav.. Co. v. Merchants' Bank, 6 How. (U.S.) 344, 376 (I848), and see Daniel, J'., dissenting, ibid., 409, 414.
(59) See The Sarah, 8 Wheat. (U.S.) 391 (I823).
(60) This amendment, in the Senate Files, is probably in Ellsworth's handwriting.
(61)See Senate Files.. The Draft Bill had a clause substantially the same (but which was not broad enough, after the Senate had decided to insert its Amendments to Section 9) as follows: "And the trial of facts in both cases last mentioned shall be by jury." It is to be noted that the District Court was given no equity powers. United States v. Nourse, 6 Pet. (U.S.) 470, 496 (I832).
(62) : See MaClay July 7.

The chief and only real reason for this diverse citizenship jurisdiction was to afford a tribunal in which a foreigner or citizen of another State might have the law administered free from the local prejudices or passions which might prevail in a State Court against foreigners or non-citizens. The Federal Court was to secure to a non-citizen the application of the same law' which a State Court would give to its own citizens, and to see that within a State there should be no discrimination against a-citizens in the application of justice(79) There is not a trace any other purpose than the above to be found in any of the amendments made in I787-I789 as to this jurisdiction. The idea that a Federal Court in a State was to administer any other than the law of that State or were to discriminate in favor of a non-citizen, and against a citizen, or to administer law as an :entirely free and independent tribunal, never appears to have entered the mind of any one. But to make it perfectly certain that the Federal Courts were simply to administer State law,

(79) Marshall, C. J., in Bank of the United States v. Deveaux, 5 Cranch (U.S.) 87 (i8o9): "The judicial department was introduced into the American Constitution under impressions, and with views, which are too apparent not to perceived by all. However true the fact may be, that the tribunals of the States will administer justice as impartially as those of the Nation, to parties of every description, it is not less true that the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible' fears apprehensions of suitors, that it has established National tribunals for the decision of controversies between aliens and a citizen, or between citizens of different States." Wayne, .]'., in Dodge v. Woolsey, 18 How. (U.S.) 33I, 354 55): "The foundation of the right of citizens of different States to sue each other in the Courts of the United States, is not an unworthy jealousy of the impartiality of the State tribunals. It was a higher aim and purpose. It is to make the people think and feel, though residing in different States of the Union, their relations to each other were protected by the strictest justice, administered in Courts independent of all local control or connection with the subject matter of the controversy between the parties to a suit." Pitney, J'., in Lankford v. Platte Iron Works Co., 235 U.S. 46I, 478 (1915): it "was established for the very purpose of avoiding the influence of local opinion." Bradley, J, in Burgess v. Seligman, 107 U.S. 20, 34 (1882): its object ," to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views.... "
See Curtis, J., dissenting in Scott v. Sandford, 19 How. (U.S.) 393, 580 (1856): "Its purpose was to extend the judicial power to those controversies into which local feelings or interests might so enter as to disturb the course of justice, give rise to suspicions that they had done so, and thus possibly give occasion jealousy or ill will between different States. . ."
End footnotes.

the Senate amended the Draft Bill by adding Section 34, which in its final form read as follows: "The laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States in cases where they apply." Unquestionably the addition of this Section was intended to remove the objections of those who had opposed the Constitution and which had been expressed in 1787 by a prominent Massachusetts man as follows:

   "Causes of all kinds between citizens of different States are to be tried before a Continental Court. The Court is not bound to try it according to the local laws where the controversies happen; for in that case it may as well be tried in the State Court. The rule which is to govern the new Courts must therefore be made by the Court itself, or by its employees, the Congress .... Congress, therefore, have the right to make rules for trying all kinds of questions relating to property between citizens of different States .... The right to appoint such Courts necessarily involves in it the right of defining their powers and determining the rules by which their judgment shall be regulated... It is vain to tell us that a maxim of common law required contracts to be determined by the law existing where the contract was made; for it is also a maxim that the Legislature has the right to alter the common law." (80)

Until Judge Story, in 1842, in Swift v. Tyson,81 decided that the word "laws" in this section did not include the "common law" of the State, and that the Federal Courts in a State were free to decide questions of general commercial law for them-selves, it had never been held that there was even any doubt about the matter. The sole object for which this jurisdiction is vested in the Federal Courts, Judge Johnson had said in 1820, "is to secure to all the administration of justice upon the same principles upon which it is administered between citizens of the same State." The object, Chief Justice Taney had said in 1838, "was to make the rules of decisions in the Courts of the United States, the same with those of 'the States, taking care to preserve

(80) ,, Letters of Agrippa ,, (James Winthrop), Massachusetts Gazette, Dec. 11, 14, I787.
(81) 16 Pet. (U.S.) 1 (I842).

the rights of the United States by the exception contained in the same Section .... Justice to citizens of the several States required this to be done." If this was so, then as has been said, Judge Story's construction was "hardly possible, unless the purpose of the provision is ignored "; (82) but Story's decision has been affirmed and extended by the Supreme Court from 1842 to the present day, with the result that, as to a large class of cases, that which was feared in 1787 has virtually taken place.(83) [ In other words, we, the men and woman in the states have been screwed if you haven't already realized this.] The application of Story's doctrine has resulted in the total reversal of the purposes for which Sections 11 and 34 were originally enacted. Diverse citizenship jurisdiction in the Federal Courts now, in many cases, instead of preventing a discrimination against a non-citizen, results in discrimination in their favor and against the citizen; and instead of making one law for all in a State, makes different law for citizen and non-citizen.

It now appears from an examination of the Senate Files, however, that if Judge Story and the Court had had recourse to those Files in preparing the decision in Swift v. Tyson, it is highly probable that the decision would have been different. and that the word "laws" in Section 34 would have been construed to include the common law of a State as well as the statute law. This conclusion will probably be reached by anyone who examines the original slip of paper on which the amendment containing Section 34 was written, and which is, with little doubt, . in Ellsworth's handwriting.

(82) J.. B. Heiske, "Conflict between Federal and State Decisions." 16 Am. L. Rev. 743, 747. "It remained for Mr. Justice Story to construe ' laws ' as ' statute laws,' and so to defeat a great part of the object contemplated by the Constitution. If the reason for the grant of jurisdiction had been kept in view, it is inconceivable that such a construction could have been adopted." GEORGE WHARTON 'PEPPER, THE BORDERLAND OF FEDERAL AND STATE DECISIONS. See also William Trickett, "The Non-Federal Law Administered in Federal Courts," 40 Am. L. Rev. 819.
(83) As an example of this, see the long line of municipal bond cases, in which the Federal Courts administer the law in one way in favor of a non-citizen, and the State Courts the law in another way, in favor of a citizen. "It is to be observed that the parties were to have been put on terms of equality- a construction which favors a non-resident brings about an evil as great as that which exists when bias is exerted in favor of a resident. A construction which makes a common carrier liable to non-residents in cases where it is not liable to residents brings about a state of affairs as unjust as if the reverse of that condition were true." GEORGE WHARTON PEPPER,supra

    [Not so today people - we are discriminated to the hilt, citizen and non citizen, to satisfy the fascist government, of which it truly is when looking at the private banking cartel operating the country via its purse strings. Then there are all the other corporations like the phone companies, drug companies etc etc. that actually make and collect taxes that the government cannot legally impose. Read the Cases of Importance on the atgpress web page to see what I mean as only one example. Do pull this Harvard Law Review and read and weep as you go along as there are 83 pages to read containing so much more info that you have to rethink and redo all your beliefs in the courts, and always remember the constitution was for them and not you. They just like you to think that so you can slide right into their trap when saying "I want my constitutional rights". Well there are no constitutional rights and never have been, so your words are what kill your arguments. Your so-called "constitutional rights are mere privileges that a subject is given and called a right. The constitution is a charter of corporate powers, nothing more, nothing less, and it tells them what they can do and what they can't do. And for them to have power over you, you must concede to their jurisdiction and you do by mouthing those mythical words "I want my constitutional rights," for only subjects of the Corporate board can have anything to say on "constitutional (privileges) Rights." That United States, is only Congress assembled and does not mean the executive or judiciary departments. That they are, departments of Congress Assembled. That's why the Judiciary did not write the 1789 Judiciary Act, Congress did and you see it in the Harvard Law Review. One final thing I have to say on Admiralty and Revenue and that is for you to pull two cases that flat out states IRS revenue matters are based on Maritime.

They are United States v. $3,976.62 in Currency, One 1960 Ford Station Wagon Serial No. 0C66W145329 347, Federal Rules Decisions 564. Head note #1 states "Although, presumably for purposes of obtaining jurisdiction for forfeiture under Internal Revenue Laws is commenced as proceeding in admiralty, after jurisdiction is obtained proceeding takes on character of civil action at law, and at least at such stage of proceedings, Rules of Civil Procedure control, 26 U.S.C.A. (I.R.C. 1954) § 7323 (a); 40 U.S.C.A. § 304i; Fed. Rules Civ. Proc. Rules 55 and (c), 60 and (b), 81(a)(2), 28 U.S.C.A. Admiralty Rules 2, 10, 21, 28 U.S.C.A.; 28 U.S.C.A. § 1355"

United States of America v ONE 1966 CHEVROLET PICKUP TRUCK et al. Civ. A. No. 526 cited at 56 Federal Rules Decision 459 where in they state the controlling laws are, 26 U.S.C.A. (I.R.C. 1954) §§ 7325 (3); Supplemental Rules for Certain Admiralty and Maritime Claims, Rules A, C (4,6), 28 U.S.C.A..; Federal Rules Civ. Proc. Rule 60 (b) (1,2) Fed. Rules, Civ Proc. Rules 55 (b), (1,2), 60, 28 U.S.C.A.

As Always
The Informer
June 1, 2003