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.