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The Justice Department’s First Publication: Attorney General Edmund Randolph’s Suggestions to Improve the New Federal Judiciary, Including Supreme Court Fixes
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The House of Representatives asked Attorney General Edmund Randolph to report on the working of the system established by the Judiciary Act of 1789. Randolph responded with this report, delivered on December 27, 1790, provided criticisms and suggestions that became a blueprint to improve the Federal judiciary. Specifically, Randolph wanted Congress to assert the exclusive jurisdiction of federal courts in certain areas; to relieve Supreme Court justices from the duty of presiding in circuit courts; and to adopt explicitly the common law of the United Kingdom as a basis for judicial decisions unless superseded by specific American legislation. 

The latter two-thirds of the report presents Randolph’s proposal for “A Bill for amending the several Acts concerning the Judicial Courts of the United States,” with his explanatory notes. Before Congress acted on Randolph’s suggestions, in August 1792, all of the Supreme Court justices complained in a letter to President George Washington that circuit travel was too onerous. In response, Congress passed the Judiciary Act of 1793 (see #26594) that required only one, rather than two, justices to sit in each circuit court. Congress did not relieve the justices of circuit-riding duties until 1911.

EDMUND RANDOLPH. Report of the Attorney-General. Read in the House of Representatives, December 31, 1790. Philadelphia: Francis Childs & John Swaine, 1791. 32 pp., Folio 8 x 13 in.

Inventory #26590.99       Price: $18,000

I am persuaded that time and practice can alone mature the judicial system.” (p1)

If the United States, as far as they can be a party defendant, should happen to be so, their own courts can alone judge them. To drag a confederate before the courts of one of its members, would reverse the plain dictates of order; hazard the most critical interests of the union upon the pleasure of a single state; and enable every individual state under the pretext of a forensic sentence, to arrogate the general sovereignty.” (p4)

We are then led to conclude, that the judiciary of the United States have exclusive jurisdiction in the following cases.

1. In those of strict admiralty and maritime jurisdiction.
2. Where the United States are a party defendant.
3. Where a particular state is a party defendant.
4. Where lands are claimed under grants of different states.
5. In treason, as described by the constitution, and other crimes and offences created by the laws of the United States, but not consigned to the state tribunals.
6. In rights created by a law of the United States, and having a special remedy given to them in federal courts.” (p5)

Judicial uniformity is surely a public good, but its price may be too great if it can be purchased only by cherishing a power, which to say no more, cannot be incontestably proved.” (p7)

A third alteration, which the Attorney-General cannot forbear to suggest, is, that the judges of the supreme court shall cease to be judges of the circuit courts.” (p7)

If the judge, whose reputation has raised him to office, shall be in the habit of delivering feeble opinions, these reports will first excite surprise, and afterwards a suspicion, which will terminate in a vigilance over his actions.” (p9)

in one aspect the existence of the common law, as the law of the United States, is equivocal.... some parts of the common law...will be estranged from our system. To cut off then such altercation, is not unworthy the care of Congress.... It is true indeed, that there ought to be a repugnance to naturalize the statute book of a foreign nation, even for a moment. But the fact is, that the United States have not yet had sufficient leisure to disengage themselves from it, by enacting a code for themselves. The time will come (perhaps it has already come) when such a work will be indispensable. But until it shall be completed, it will be far less disgraceful to accept, under proper restrictions, some part of our law from an alien volume, with which every state is well acquainted, and to which the people have been accustomed from their infant settlements, than abruptly to unhinge ancient legal tenets.” (p10-11)

This bill, although not formally divided into cardinal parts, is yet divisible into four. The first contains all that is peculiar to the organization of the district courts; the second, to that of the circuit courts; the third, to that of the supreme court; and the fourth, what is common to two, or the whole of them. The constitution, the common law, and equity have shortened the detail.” (p11)

And whereas the Constitution of the United States, and the laws made in pursuance thereof, and all treaties made under the authority of the United States, are the supreme law of the land:

Be it further enacted, That the laws of the several states, so far as the claim of a plaintiff, or the defence of a defendant may depend thereon, in respect to its merits, evidence or limitation of time, shall, subject to the supreme law aforesaid, be rules of decision: that in all pleadings, except in limitations of time, and in all trials, except in matters of evidence, and in the regulations of the executions aforesaid, such statutes, as were made before the fourth day of July, in the year one thousand seven hundred and seventy-six, for the amendment of the law in those cases generally, shall also be rules of decision: and moreover, that the common law, so far as the same be not altered by the supreme law, by the laws of particular states, or by statutes, shall also be a rule of decision.” (p28)

Historical Background
On August 5, 1790, the House of Representatives ordered “That the Attorney General report to this House, at the next session of Congress, on such matters relative to the administration of justice under the authority of the United States, as may require to be remedied: And that he also report such provisions in the respective cases as he shall deem advisable.” Randolph submitted this report on December 27, and it was read to Congress on December 30.

Several of Randolph’s recommendations later became part of the federal judiciary system, but often not for decades. For example, on the question of exclusive federal jurisdiction, Congress gave federal courts exclusive jurisdiction over cases arising specifically from patents in April 1790. However, only after the Civil War did Congress confer exclusive general federal jurisdiction on inferior federal courts. U.S. Supreme Court justices temporarily ceased serving in federal circuit courts in 1801, when a Federalist majority in Congress created new circuit courts with Federalist judges. The Democratic Republican majority in the next Congress repealed the provision one year later, and Supreme Court justices resumed circuit court duties. Not until 1911 did Congress finally relieve Supreme Court justices from presiding over circuit courts.

Beginning with Virginia in 1776, many states explicitly adopted the British common law as the basis for judicial decision-making either through statute or in new constitutions, though often with restrictions. Later, new states often followed the pattern of the original states in selectively adopting the common law, but Congress never explicitly adopted it for the federal courts though it arguably did so for some territories.

Edmund Randolph (1753-1813) graduated from the College of William and Mary. At the start of the American Revolution, his prominent loyalist father returned to Britain, but Randolph joined the Continental Army as an aide-de-camp to George Washington. From 1779 to 1782, he served as a Virginia delegate to the Continental Congress. Maintaining his legal practice, he handled a number of private issues for Washington. He also trained John Marshall; when voters elected Randolph governor of Virginia in 1786, Marshall took over his law practice. Randolph was an influential Delegate to the Annapolis Convention of 1786 and the Constitutional Convention, where he introduced the Virginia Plan and was a member of the Committee on Detail charged with framing the first draft. President Washington appointed Randolph as the first U.S. Attorney General in September 1789; he was a useful neutral voice in disputes between Thomas Jefferson and Alexander Hamilton. 

Jefferson resigned as Secretary of State at the end of 1793, and Randolph succeeded him. The major diplomatic initiative of his tenure was the 1794 Jay’s Treaty with Britain, which he opposed as being too easy on Britain, pushing for what became Pinckney’s Treaty as a corrective. Hoping to neutralize Randolph’s opposition to the Jay Treaty, the British government provided his opponents with documents written by French Minister Jean Antoine Joseph Fauchet that had been intercepted by the British Navy. Though innocuous, his Cabinet opponents claimed they proved that Randolph had disclosed confidential information and solicited a bribe. George Washington affirmed his support for Jay’s Treaty, and with the Cabinet gathered, demanded that Randolph explain the letters. Though innocent, his standing with Washington was permanently weakened. Randolph resigned in 1795, and returned to Virginia to practice law. In 1807, in John Marshall’s court and to then President Jefferson’s great chagrin, Randolph successfully defended Vice President Aaron Burr against charges of treason.

Condition: closed tear along inside margin of drop title, inside margin of penultimate leaf expertly mended; several minor marginal repairs to terminal leaf; some marginal foxing; quarter calf antique over marbled boards, spine lettered gilt.

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