Having thus laid down and discussed the principles which ought to

regulate the constitution of the federal judiciary, we will proceed to

test, by these principles, the particular powers of which, according to

the plan of the convention, it is to be composed. It is to comprehend

“all cases in law and equity arising under the Constitution, the laws

of the United States, and treaties made, or which shall be made, under

their authority; to all cases affecting ambassadors, other public

ministers, and consuls; to all cases of admiralty and maritime

jurisdiction; to controversies to which the United States shall be a

party; to controversies between two or more States; between a State and

citizens of another State; between citizens of different States;

between citizens of the same State claiming lands and grants of

different States; and between a State or the citizens thereof and

foreign states, citizens, and subjects.” This constitutes the entire

mass of the judicial authority of the Union. Let us now review it in

detail. It is, then, to extend:

First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION

and THE LAWS OF THE UNITED STATES. This corresponds with the two first

classes of causes, which have been enumerated, as proper for the

jurisdiction of the United States. It has been asked, what is meant by

“cases arising under the Constitution,” in contradiction from those

“arising under the laws of the United States”? The difference has been

already explained. All the restrictions upon the authority of the State

legislatures furnish examples of it. They are not, for instance, to

emit paper money; but the interdiction results from the Constitution,

and will have no connection with any law of the United States. Should

paper money, notwithstanding, be emited, the controversies concerning

it would be cases arising under the Constitution and not the laws of

the United States, in the ordinary signification of the terms. This may

serve as a sample of the whole.

It has also been asked, what need of the word “equity What equitable

causes can grow out of the Constitution and laws of the United States?

There is hardly a subject of litigation between individuals, which may

not involve those ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP,

which would render the matter an object of equitable rather than of

legal jurisdiction, as the distinction is known and established in

several of the States. It is the peculiar province, for instance, of a

court of equity to relieve against what are called hard bargains: these

are contracts in which, though there may have been no direct fraud or

deceit, sufficient to invalidate them in a court of law, yet there may

have been some undue and unconscionable advantage taken of the

necessities or misfortunes of one of the parties, which a court of

equity would not tolerate. In such cases, where foreigners were

concerned on either side, it would be impossible for the federal

judicatories to do justice without an equitable as well as a legal

jurisdiction. Agreements to convey lands claimed under the grants of

different States, may afford another example of the necessity of an

equitable jurisdiction in the federal courts. This reasoning may not be

so palpable in those States where the formal and technical distinction

between LAW and EQUITY is not maintained, as in this State, where it is

exemplified by every day’s practice.

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority

of the United States, and to all cases affecting ambassadors, other

public ministers, and consuls. These belong to the fourth class of the

enumerated cases, as they have an evident connection with the

preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form,

altogether, the fifth of the enumerated classes of causes proper for

the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party.

These constitute the third of those classes.

Fifth. To controversies between two or more States; between a State and

citizens of another State; between citizens of different States. These

belong to the fourth of those classes, and partake, in some measure, of

the nature of the last.

Sixth. To cases between the citizens of the same State, CLAIMING LANDS

UNDER GRANTS OF DIFFERENT STATES. These fall within the last class, and

ARE THE ONLY INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY

CONTEMPLATES THE COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE

SAME STATE.

Seventh. To cases between a State and the citizens thereof, and foreign

States, citizens, or subjects. These have been already explained to

belong to the fourth of the enumerated classes, and have been shown to

be, in a peculiar manner, the proper subjects of the national

judicature.

From this review of the particular powers of the federal judiciary, as

marked out in the Constitution, it appears that they are all

conformable to the principles which ought to have governed the

structure of that department, and which were necessary to the

perfection of the system. If some partial inconviences should appear to

be connected with the incorporation of any of them into the plan, it

ought to be recollected that the national legislature will have ample

authority to make such EXCEPTIONS, and to prescribe such regulations as

will be calculated to obviate or remove these inconveniences. The

possibility of particular mischiefs can never be viewed, by a

wellinformed mind, as a solid objection to a general principle, which

is calculated to avoid general mischiefs and to obtain general

advantages.

PUBLIUS.

THE FEDERALIST.

No. LXXXI.

The Judiciary Continued, and the Distribution of the Judicial Authority

From McLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:

Let us now return to the partition of the judiciary authority between

different courts, and their relations to each other, “The judicial

power of the United States is” (by the plan of the convention) “to be

vested in one Supreme Court, and in such inferior courts as the

Congress may, from time to time, ordain and establish.”[1]

That there ought to be one court of supreme and final jurisdiction, is

a proposition which is not likely to be contested. The reasons for it

have been assigned in another place, and are too obvious to need

repetition. The only question that seems to have been raised concerning

it, is, whether it ought to be a distinct body or a branch of the

legislature. The same contradiction is observable in regard to this

matter which has been remarked in several other cases. The very men who

object to the Senate as a court of impeachments, on the ground of an

improper intermixture of powers, advocate, by implication at least, the

propriety of vesting the ultimate decision of all causes, in the whole

or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is

founded, are to this effect: “The authority of the proposed Supreme

Court of the United States, which is to be a separate and independent

body, will be superior to that of the legislature. The power of

construing the laws according to the SPIRIT of the Constitution, will

enable that court to mould them into whatever shape it may think

proper; especially as its decisions will not be in any manner subject

to the revision or correction of the legislative body. This is as

unprecedented as it is dangerous. In Britain, the judical power, in the

last resort, resides in the House of Lords, which is a branch of the

legislature; and this part of the British government has been imitated

in the State constitutions in general. The Parliament of Great Britain,

and the legislatures of the several States, can at any time rectify, by

law, the exceptionable decisions of their respective courts. But the

errors and usurpations of the Supreme Court of the United States will

be uncontrollable and remediless.” This, upon examination, will be

found to be made up altogether of false reasoning upon misconceived

fact.

In the first place, there is not a syllable in the plan under

consideration which DIRECTLY empowers the national courts to construe

the laws according to the spirit of the Constitution, or which gives

them any greater latitude in this respect than may be claimed by the

courts of every State. I admit, however, that the Constitution ought to

be the standard of construction for the laws, and that wherever there

is an evident opposition, the laws ought to give place to the

Constitution. But this doctrine is not deducible from any circumstance

peculiar to the plan of the convention, but from the general theory of

a limited Constitution; and as far as it is true, is equally applicable

to most, if not to all the State governments. There can be no

objection, therefore, on this account, to the federal judicature which

will not lie against the local judicatures in general, and which will

not serve to condemn every constitution that attempts to set bounds to

legislative discretion.

But perhaps the force of the objection may be thought to consist in the

particular organization of the Supreme Court; in its being composed of

a distinct body of magistrates, instead of being one of the branches of

the legislature, as in the government of Great Britain and that of the

State. To insist upon this point, the authors of the objection must

renounce the meaning they have labored to annex to the celebrated

maxim, requiring a separation of the departments of power. It shall,

nevertheless, be conceded to them, agreeably to the interpretation

given to that maxim in the course of these papers, that it is not

violated by vesting the ultimate power of judging in a PART of the

legislative body. But though this be not an absolute violation of that

excellent rule, yet it verges so nearly upon it, as on this account

alone to be less eligible than the mode preferred by the convention.

From a body which had even a partial agency in passing bad laws, we

could rarely expect a disposition to temper and moderate them in the

application. The same spirit which had operated in making them, would

be too apt in interpreting them; still less could it be expected that

men who had infringed the Constitution in the character of legislators,

would be disposed to repair the breach in the character of judges. Nor

is this all. Every reason which recommends the tenure of good behavior

for judicial offices, militates against placing the judiciary power, in

the last resort, in a body composed of men chosen for a limited period.

There is an absurdity in referring the determination of causes, in the

first instance, to judges of permanent standing; in the last, to those

of a temporary and mutable constitution. And there is a still greater

absurdity in subjecting the decisions of men, selected for their

knowledge of the laws, acquired by long and laborious study, to the

revision and control of men who, for want of the same advantage, cannot

but be deficient in that knowledge. The members of the legislature will

rarely be chosen with a view to those qualifications which fit men for

the stations of judges; and as, on this account, there will be great

reason to apprehend all the ill consequences of defective information,

so, on account of the natural propensity of such bodies to party

divisions, there will be no less reason to fear that the pestilential

breath of faction may poison the fountains of justice. The habit of

being continually marshalled on opposite sides will be too apt to

stifle the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those States who

have committed the judicial power, in the last resort, not to a part of

the legislature, but to distinct and independent bodies of men.

Contrary to the supposition of those who have represented the plan of

the convention, in this respect, as novel and unprecedented, it is but

a copy of the constitutions of New Hampshire, Massachusetts,

Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South

Carolina, and Georgia; and the preference which has been given to those

models is highly to be commended.

It is not true, in the second place, that the Parliament of Great

Britain, or the legislatures of the particular States, can rectify the

exceptionable decisions of their respective courts, in any other sense

than might be done by a future legislature of the United States. The

theory, neither of the British, nor the State constitutions, authorizes

the revisal of a judicial sentence by a legislative act. Nor is there

any thing in the proposed Constitution, more than in either of them, by

which it is forbidden. In the former, as well as in the latter, the

impropriety of the thing, on the general principles of law and reason,

is the sole obstacle. A legislature, without exceeding its province,

cannot reverse a determination once made in a particular case; though

it may prescribe a new rule for future cases. This is the principle,

and it applies in all its consequences, exactly in the same manner and

extent, to the State governments, as to the national government now

under consideration. Not the least difference can be pointed out in any

view of the subject.

It may in the last place be observed that the supposed danger of

judiciary encroachments on the legislative authority, which has been

upon many occasions reiterated, is in reality a phantom. Particular

misconstructions and contraventions of the will of the legislature may

now and then happen; but they can never be so extensive as to amount to

an inconvenience, or in any sensible degree to affect the order of the

political system. This may be inferred with certainty, from the general

nature of the judicial power, from the objects to which it relates,

from the manner in which it is exercised, from its comparative

weakness, and from its total incapacity to support its usurpations by

force. And the inference is greatly fortified by the consideration of

the important constitutional check which the power of instituting

impeachments in one part of the legislative body, and of determining

upon them in the other, would give to that body upon the members of the

judicial department. This is alone a complete security. There never can

be danger that the judges, by a series of deliberate usurpations on the

authority of the legislature, would hazard the united resentment of the

body intrusted with it, while this body was possessed of the means of

punishing their presumption, by degrading them from their stations.

While this ought to remove all apprehensions on the subject, it

affords, at the same time, a cogent argument for constituting the

Senate a court for the trial of impeachments.

Having now examined, and, I trust, removed the objections to the

distinct and independent organization of the Supreme Court, I proceed

to consider the propriety of the power of constituting inferior

courts,[2] and the relations which will subsist between these and the

former.

The power of constituting inferior courts is evidently calculated to

obviate the necessity of having recourse to the Supreme Court in every

case of federal cognizance. It is intended to enable the national

government to institute or AUTHORUZE, in each State or district of the

United States, a tribunal competent to the determination of matters of

national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished

by the instrumentality of the State courts? This admits of different

answers. Though the fitness and competency of those courts should be

allowed in the utmost latitude, yet the substance of the power in

question may still be regarded as a necessary part of the plan, if it

were only to empower the national legislature to commit to them the

cognizance of causes arising out of the national Constitution. To

confer the power of determining such causes upon the existing courts of

the several States, would perhaps be as much “to constitute tribunals,”

as to create new courts with the like power. But ought not a more

direct and explicit provision to have been made in favor of the State

courts? There are, in my opinion, substantial reasons against such a

provision: the most discerning cannot foresee how far the prevalency of

a local spirit may be found to disqualify the local tribunals for the

jurisdiction of national causes; whilst every man may discover, that

courts constituted like those of some of the States would be improper

channels of the judicial authority of the Union. State judges, holding

their offices during pleasure, or from year to year, will be too little

independent to be relied upon for an inflexible execution of the

national laws. And if there was a necessity for confiding the original

cognizance of causes arising under those laws to them there would be a

correspondent necessity for leaving the door of appeal as wide as

possible. In proportion to the grounds of confidence in, or distrust

of, the subordinate tribunals, ought to be the facility or difficulty

of appeals. And well satisfied as I am of the propriety of the

appellate jurisdiction, in the several classes of causes to which it is

extended by the plan of the convention. I should consider every thing

calculated to give, in practice, an UNRESTRAINED COURSE to appeals, as

a source of public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful,

to divide the United States into four or five or half a dozen

districts; and to institute a federal court in each district, in lieu

of one in every State. The judges of these courts, with the aid of the

State judges, may hold circuits for the trial of causes in the several

parts of the respective districts. Justice through them may be

administered with ease and despatch; and appeals may be safely

circumscribed within a narrow compass. This plan appears to me at

present the most eligible of any that could be adopted; and in order to

it, it is necessary that the power of constituting inferior courts

should exist in the full extent in which it is to be found in the

proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want

of such a power would have been a great defect in the plan. Let us now

examine in what manner the judicial authority is to be distributed

between the supreme and the inferior courts of the Union. The Supreme

Court is to be invested with original jurisdiction, only “in cases

affecting ambassadors, other public ministers, and consuls, and those

in which A STATE shall be a party.” Public ministers of every class are

the immediate representatives of their sovereigns. All questions in

which they are concerned are so directly connected with the public

peace, that, as well for the preservation of this, as out of respect to

the sovereignties they represent, it is both expedient and proper that

such questions should be submitted in the first instance to the highest

judicatory of the nation. Though consuls have not in strictness a

diplomatic character, yet as they are the public agents of the nations

to which they belong, the same observation is in a great measure

applicable to them. In cases in which a State might happen to be a

party, it would ill suit its dignity to be turned over to an inferior

tribunal. Though it may rather be a digression from the immediate

subject of this paper, I shall take occasion to mention here a

supposition which has excited some alarm upon very mistaken grounds. It

has been suggested that an assignment of the public securities of one

State to the citizens of another, would enable them to prosecute that

State in the federal courts for the amount of those securities; a

suggestion which the following considerations prove to be without

foundation.

It is inherent in the nature of sovereignty not to be amenable to the

suit of an individual WITHOUT ITS CONSENT. This is the general sense,

and the general practice of mankind; and the exemption, as one of the

attributes of sovereignty, is now enjoyed by the government of every

State in the Union. Unless, therefore, there is a surrender of this

immunity in the plan of the convention, it will remain with the States,

and the danger intimated must be merely ideal. The circumstances which

are necessary to produce an alienation of State sovereignty were

discussed in considering the article of taxation, and need not be

repeated here. A recurrence to the principles there established will

satisfy us, that there is no color to pretend that the State

governments would, by the adoption of that plan, be divested of the

privilege of paying their own debts in their own way, free from every

constraint but that which flows from the obligations of good faith. The

contracts between a nation and individuals are only binding on the

conscience of the sovereign, and have no pretensions to a compulsive

force. They confer no right of action, independent of the sovereign

will. To what purpose would it be to authorize suits against States for

the debts they owe? How could recoveries be enforced? It is evident, it

could not be done without waging war against the contracting State; and

to ascribe to the federal courts, by mere implication, and in

destruction of a pre-existing right of the State governments, a power

which would involve such a consequence, would be altogether forced and

unwarrantable.

Let us resume the train of our observations. We have seen that the

original jurisdiction of the Supreme Court would be confined to two

classes of causes, and those of a nature rarely to occur. In all other

cases of federal cognizance, the original jurisdiction would appertain

to the inferior tribunals; and the Supreme Court would have nothing

more than an appellate jurisdiction, “with such EXCEPTIONS and under

such REGULATIONS as the Congress shall make.”

The propriety of this appellate jurisdiction has been scarcely called

in question in regard to matters of law; but the clamors have been loud

against it as applied to matters of fact. Some well-intentioned men in

this State, deriving their notions from the language and forms which

obtain in our courts, have been induced to consider it as an implied

supersedure of the trial by jury, in favor of the civil-law mode of

trial, which prevails in our courts of admiralty, probate, and

chancery. A technical sense has been affixed to the term “appellate,”

which, in our law parlance, is commonly used in reference to appeals in

the course of the civil law. But if I am not misinformed, the same

meaning would not be given to it in any part of New England. There an

appeal from one jury to another, is familiar both in language and

practice, and is even a matter of course, until there have been two

verdicts on one side. The word “appellate,” therefore, will not be

understood in the same sense in New England as in New York, which shows

the impropriety of a technical interpretation derived from the

jurisprudence of any particular State. The expression, taken in the

abstract, denotes nothing more than the power of one tribunal to review

the proceedings of another, either as to the law or fact, or both. The

mode of doing it may depend on ancient custom or legislative provision

(in a new government it must depend on the latter), and may be with or

without the aid of a jury, as may be judged advisable. If, therefore,

the re-examination of a fact once determined by a jury, should in any

case be admitted under the proposed Constitution, it may be so

regulated as to be done by a second jury, either by remanding the cause

to the court below for a second trial of the fact, or by directing an

issue immediately out of the Supreme Court.

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