ascertained by a jury, will be permitted in the Supreme Court. Why may
not it be said, with the strictest propriety, when a writ of error is
brought from an inferior to a superior court of law in this State, that
the latter has jurisdiction of the fact as well as the law? It is true
it cannot institute a new inquiry concerning the fact, but it takes
cognizance of it as it appears upon the record, and pronounces the law
arising upon it.[3] This is jurisdiction of both fact and law; nor is
it even possible to separate them. Though the common-law courts of this
State ascertain disputed facts by a jury, yet they unquestionably have
jurisdiction of both fact and law; and accordingly when the former is
agreed in the pleadings, they have no recourse to a jury, but proceed
at once to judgment. I contend, therefore, on this ground, that the
expressions, “appellate jurisdiction, both as to law and fact,” do not
necessarily imply a re-examination in the Supreme Court of facts
decided by juries in the inferior courts.
The following train of ideas may well be imagined to have influenced
the convention, in relation to this particular provision. The appellate
jurisdiction of the Supreme Court (it may have been argued) will extend
to causes determinable in different modes, some in the course of the
COMMON LAW, others in the course of the CIVIL LAW. In the former, the
revision of the law only will be, generally speaking, the proper
province of the Supreme Court; in the latter, the re-examination of the
fact is agreeable to usage, and in some cases, of which prize causes
are an example, might be essential to the preservation of the public
peace. It is therefore necessary that the appellate jurisdiction
should, in certain cases, extend in the broadest sense to matters of
fact. It will not answer to make an express exception of cases which
shall have been originally tried by a jury, because in the courts of
some of the States ALL CAUSES are tried in this mode;[4] and such an
exception would preclude the revision of matters of fact, as well where
it might be proper, as where it might be improper. To avoid all
inconveniencies, it will be safest to declare generally, that the
Supreme Court shall possess appellate jurisdiction both as to law and
FACT, and that this jurisdiction shall be subject to such EXCEPTIONS
and regulations as the national legislature may prescribe. This will
enable the government to modify it in such a manner as will best answer
the ends of public justice and security.
This view of the matter, at any rate, puts it out of all doubt that the
supposed ABOLITION of the trial by jury, by the operation of this
provision, is fallacious and untrue. The legislature of the United
States would certainly have full power to provide, that in appeals to
the Supreme Court there should be no re-examination of facts where they
had been tried in the original causes by juries. This would certainly
be an authorized exception; but if, for the reason already intimated,
it should be thought too extensive, it might be qualified with a
limitation to such causes only as are determinable at common law in
that mode of trial.
The amount of the observations hitherto made on the authority of the
judicial department is this: that it has been carefully restricted to
those causes which are manifestly proper for the cognizance of the
national judicature; that in the partition of this authority a very
small portion of original jurisdiction has been preserved to the
Supreme Court, and the rest consigned to the subordinate tribunals;
that the Supreme Court will possess an appellate jurisdiction, both as
to law and fact, in all the cases referred to them, both subject to any
EXCEPTIONS and REGULATIONS which may be thought advisable; that this
appellate jurisdiction does, in no case, ABOLISH the trial by jury; and
that an ordinary degree of prudence and integrity in the national
councils will insure us solid advantages from the establishment of the
proposed judiciary, without exposing us to any of the inconveniences
which have been predicted from that source.
PUBLIUS.
[1] Article 3, sec. 1.
[2] This power has been absurdly represented as intended to abolish
all the county courts in the several States, which are commonly called
inferior courts. But the expressions of the Constitution are, to
constitute “tribunals INFERIOR TO THE SUPREME COURT”; and the evident
design of the provision is to enable the institution of local courts,
subordinate to the Supreme, either in States or larger districts. It
is ridiculous to imagine that county courts were in contemplation.
[3] This word is composed of JUS and DICTIO, juris dictio or a
speaking and pronouncing of the law.
[4] I hold that the States will have concurrent jurisdiction with the
subordinate federal judicatories, in many cases of federal cognizance,
as will be explained in my next paper.
THE FEDERALIST.
No. LXXXII.
The Judiciary Continued
From McLEAN’s Edition, New York.
HAMILTON
To the People of the State of New York:
The erection of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of intricacy
and nicety; and these may, in a particular manner, be expected to flow
from the establishment of a constitution founded upon the total or
partial incorporation of a number of distinct sovereignties. ’T is time
only that can mature and perfect so compound a system, can liquidate
the meaning of all the parts, and can adjust them to each other in a
harmonious and consistent WHOLE.
Such questions, accordingly, have arisen upon the plan proposed by the
convention, and particularly concerning the judiciary department. The
principal of these respect the situation of the State courts in regard
to those causes which are to be submitted to federal jurisdiction. Is
this to be exclusive, or are those courts to possess a concurrent
jurisdiction? If the latter, in what relation will they stand to the
national tribunals? These are inquiries which we meet with in the
mouths of men of sense, and which are certainly entitled to attention.
The principles established in a former paper[1] teach us that the
States will retain all PRE-EXISTING authorities which may not be
exclusively delegated to the federal head; and that this exclusive
delegation can only exist in one of three cases: where an exclusive
authority is, in express terms, granted to the Union; or where a
particular authority is granted to the Union, and the exercise of a
like authority is prohibited to the States; or where an authority is
granted to the Union, with which a similar authority in the States
would be utterly incompatible. Though these principles may not apply
with the same force to the judiciary as to the legislative power, yet I
am inclined to think that they are, in the main, just with respect to
the former, as well as the latter. And under this impression, I shall
lay it down as a rule, that the State courts will RETAIN the
jurisdiction they now have, unless it appears to be taken away in one
of the enumerated modes.
The only thing in the proposed Constitution, which wears the appearance
of confining the causes of federal cognizance to the federal courts, is
contained in this passage: “The JUDICIAL POWER of the United States
SHALL BE VESTED in one Supreme Court, and in SUCH inferior courts as
the Congress shall from time to time ordain and establish.” This might
either be construed to signify, that the supreme and subordinate courts
of the Union should alone have the power of deciding those causes to
which their authority is to extend; or simply to denote, that the
organs of the national judiciary should be one Supreme Court, and as
many subordinate courts as Congress should think proper to appoint; or
in other words, that the United States should exercise the judicial
power with which they are to be invested, through one supreme tribunal,
and a certain number of inferior ones, to be instituted by them. The
first excludes, the last admits, the concurrent jurisdiction of the
State tribunals; and as the first would amount to an alienation of
State power by implication, the last appears to me the most natural and
the most defensible construction.
But this doctrine of concurrent jurisdiction is only clearly applicable
to those descriptions of causes of which the State courts have previous
cognizance. It is not equally evident in relation to cases which may
grow out of, and be PECULIAR to, the Constitution to be established;
for not to allow the State courts a right of jurisdiction in such
cases, can hardly be considered as the abridgment of a pre-existing
authority. I mean not therefore to contend that the United States, in
the course of legislation upon the objects intrusted to their
direction, may not commit the decision of causes arising upon a
particular regulation to the federal courts solely, if such a measure
should be deemed expedient; but I hold that the State courts will be
divested of no part of their primitive jurisdiction, further than may
relate to an appeal; and I am even of opinion that in every case in
which they were not expressly excluded by the future acts of the
national legislature, they will of course take cognizance of the causes
to which those acts may give birth. This I infer from the nature of
judiciary power, and from the general genius of the system. The
judiciary power of every government looks beyond its own local or
municipal laws, and in civil cases lays hold of all subjects of
litigation between parties within its jurisdiction, though the causes
of dispute are relative to the laws of the most distant part of the
globe. Those of Japan, not less than of New York, may furnish the
objects of legal discussion to our courts. When in addition to this we
consider the State governments and the national governments, as they
truly are, in the light of kindred systems, and as parts of ONE WHOLE,
the inference seems to be conclusive, that the State courts would have
a concurrent jurisdiction in all cases arising under the laws of the
Union, where it was not expressly prohibited.
Here another question occurs: What relation would subsist between the
national and State courts in these instances of concurrent
jurisdiction? I answer, that an appeal would certainly lie from the
latter, to the Supreme Court of the United States. The Constitution in
direct terms gives an appellate jurisdiction to the Supreme Court in
all the enumerated cases of federal cognizance in which it is not to
have an original one, without a single expression to confine its
operation to the inferior federal courts. The objects of appeal, not
the tribunals from which it is to be made, are alone contemplated. From
this circumstance, and from the reason of the thing, it ought to be
construed to extend to the State tribunals. Either this must be the
case, or the local courts must be excluded from a concurrent
jurisdiction in matters of national concern, else the judiciary
authority of the Union may be eluded at the pleasure of every plaintiff
or prosecutor. Neither of these consequences ought, without evident
necessity, to be involved; the latter would be entirely inadmissible,
as it would defeat some of the most important and avowed purposes of
the proposed government, and would essentially embarrass its measures.
Nor do I perceive any foundation for such a supposition. Agreeably to
the remark already made, the national and State systems are to be
regarded as ONE WHOLE. The courts of the latter will of course be
natural auxiliaries to the execution of the laws of the Union, and an
appeal from them will as naturally lie to that tribunal which is
destined to unite and assimilate the principles of national justice and
the rules of national decisions. The evident aim of the plan of the
convention is, that all the causes of the specified classes shall, for
weighty public reasons, receive their original or final determination
in the courts of the Union. To confine, therefore, the general
expressions giving appellate jurisdiction to the Supreme Court, to
appeals from the subordinate federal courts, instead of allowing their
extension to the State courts, would be to abridge the latitude of the
terms, in subversion of the intent, contrary to every sound rule of
interpretation.
But could an appeal be made to lie from the State courts to the
subordinate federal judicatories? This is another of the questions
which have been raised, and of greater difficulty than the former. The
following considerations countenance the affirmative. The plan of the
convention, in the first place, authorizes the national legislature “to
constitute tribunals inferior to the Supreme Court.”[2] It declares, in
the next place, that “the JUDICIAL POWER of the United States SHALL BE
VESTED in one Supreme Court, and in such inferior courts as Congress
shall ordain and establish”; and it then proceeds to enumerate the
cases to which this judicial power shall extend. It afterwards divides
the jurisdiction of the Supreme Court into original and appellate, but
gives no definition of that of the subordinate courts. The only
outlines described for them, are that they shall be “inferior to the
Supreme Court,” and that they shall not exceed the specified limits of
the federal judiciary. Whether their authority shall be original or
appellate, or both, is not declared. All this seems to be left to the
discretion of the legislature. And this being the case, I perceive at
present no impediment to the establishment of an appeal from the State
courts to the subordinate national tribunals; and many advantages
attending the power of doing it may be imagined. It would diminish the
motives to the multiplication of federal courts, and would admit of
arrangements calculated to contract the appellate jurisdiction of the
Supreme Court. The State tribunals may then be left with a more entire
charge of federal causes; and appeals, in most cases in which they may
be deemed proper, instead of being carried to the Supreme Court, may be
made to lie from the State courts to district courts of the Union.
PUBLIUS.
[1] No. 32.
[2] Section 8, Article 1.
THE FEDERALIST.
No. LXXXIII.
The Judiciary Continued in Relation to Trial by Jury
From MCLEAN’s Edition, New York.
HAMILTON
To the People of the State of New York:
The objection to the plan of the convention, which has met with most
success in this State, and perhaps in several of the other States, is
THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial
by jury in civil cases. The disingenuous form in which this objection
is usually stated has been repeatedly adverted to and exposed, but
continues to be pursued in all the conversations and writings of the
opponents of the plan. The mere silence of the Constitution in regard
to CIVIL CAUSES, is represented as an abolition of the trial by jury,
and the declamations to which it has afforded a pretext are artfully
calculated to induce a persuasion that this pretended abolition is
complete and universal, extending not only to every species of civil,
but even to CRIMINAL CAUSES. To argue with respect to the latter would,
however, be as vain and fruitless as to attempt the serious proof of
the EXISTENCE of MATTER, or to demonstrate any of those propositions
which, by their own internal evidence, force conviction, when expressed
in language adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible for
refutation have been employed to countenance the surmise that a thing
which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man of
discernment must at once perceive the wide difference between SILENCE
and ABOLITION. But as the inventors of this fallacy have attempted to
support it by certain LEGAL MAXIMS of interpretation, which they have
perverted from their true meaning, it may not be wholly useless to
explore the ground they have taken.
The maxims on which they rely are of this nature: “A specification of
particulars is an exclusion of generals”; or, “The expression of one
thing is the exclusion of another.” Hence, say they, as the
Constitution has established the trial by jury in criminal cases, and
is silent in respect to civil, this silence is an implied prohibition
of trial by jury in regard to the latter.
The rules of legal interpretation are rules of COMMONSENSE, adopted by
the courts in the construction of the laws. The true test, therefore,
of a just application of them is its conformity to the source from
which they are derived. This being the case, let me ask if it is
consistent with common-sense to suppose that a provision obliging the
legislative power to commit the trial of criminal causes to juries, is
a privation of its right to authorize or permit that mode of trial in
other cases? Is it natural to suppose, that a command to do one thing
is a prohibition to the doing of another, which there was a previous
power to do, and which is not incompatible with the thing commanded to
be done? If such a supposition would be unnatural and unreasonable, it
cannot be rational to maintain that an injunction of the trial by jury
in certain cases is an interdiction of it in others.
A power to constitute courts is a power to prescribe the mode of trial;
and consequently, if nothing was said in the Constitution on the
subject of juries, the legislature would be at liberty either to adopt
that institution or to let it alone. This discretion, in regard to
criminal causes, is abridged by the express injunction of trial by jury
in all such cases; but it is, of course, left at large in relation to
civil causes, there being a total silence on this head. The
specification of an obligation to try all criminal causes in a
particular mode, excludes indeed the obligation or necessity of
employing the same mode in civil causes, but does not abridge THE POWER
of the legislature to exercise that mode if it should be thought
proper. The pretense, therefore, that the national legislature would
not be at full liberty to submit all the civil causes of federal
cognizance to the determination of juries, is a pretense destitute of
all just foundation.
From these observations this conclusion results: that the trial by jury
in civil cases would not be abolished; and that the use attempted to be
made of the maxims which have been quoted, is contrary to reason and
common-sense, and therefore not admissible. Even if these maxims had a
precise technical sense, corresponding with the idea of those who
employ them upon the present occasion, which, however, is not the case,
they would still be inapplicable to a constitution of government. In
relation to such a subject, the natural and obvious sense of its
provisions, apart from any technical rules, is the true criterion of
construction.
Having now seen that the maxims relied upon will not bear the use made
of them, let us endeavor to ascertain their proper use and true
meaning. This will be best done by examples. The plan of the convention
declares that the power of Congress, or, in other words, of the
NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This
specification of particulars evidently excludes all pretension to a
general legislative authority, because an affirmative grant of special
powers would be absurd, as well as useless, if a general authority was
intended.
In like manner the judicial authority of the federal judicatures is
declared by the Constitution to comprehend certain cases particularly
specified. The expression of those cases marks the precise limits,
beyond which the federal courts cannot extend their jurisdiction,
because the objects of their cognizance being enumerated, the
specification would be nugatory if it did not exclude all ideas of more
extensive authority.
These examples are sufficient to elucidate the maxims which have been
mentioned, and to designate the manner in which they should be used.
But that there may be no misapprehensions upon this subject, I shall
add one case more, to demonstrate the proper use of these maxims, and
the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman was
incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of her
property by deed executed in the presence of a magistrate. In such a
case there can be no doubt but the specification would amount to an
exclusion of any other mode of conveyance, because the woman having no
previous power to alienate her property, the specification determines
the particular mode which she is, for that purpose, to avail herself
of. But let us further suppose that in a subsequent part of the same
act it should be declared that no woman should dispose of any estate of
a determinate value without the consent of three of her nearest
relations, signified by their signing the deed; could it be inferred
from this regulation that a married woman might not procure the
approbation of her relations to a deed for conveying property of
inferior value? The position is too absurd to merit a refutation, and
yet this is precisely the position which those must establish who
contend that the trial by juries in civil cases is abolished, because
it is expressly provided for in cases of a criminal nature.
From these observations it must appear unquestionably true, that trial
by jury is in no case abolished by the proposed Constitution, and it is
equally true, that in those controversies between individuals in which
the great body of the people are likely to be interested, that
institution will remain precisely in the same situation in which it is
placed by the State constitutions, and will be in no degree altered or
influenced by the adoption of the plan under consideration. The
foundation of this assertion is, that the national judiciary will have
no cognizance of them, and of course they will remain determinable as
heretofore by the State courts only, and in the manner which the State
constitutions and laws prescribe. All land causes, except where claims
under the grants of different States come into question, and all other
controversies between the citizens of the same State, unless where they
depend upon positive violations of the articles of union, by acts of
the State legislatures, will belong exclusively to the jurisdiction of
the State tribunals. Add to this, that admiralty causes, and almost all
those which are of equity jurisdiction, are determinable under our own
government without the intervention of a jury, and the inference from
the whole will be, that this institution, as it exists with us at
present, cannot possibly be affected to any great extent by the
proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if they
agree in nothing else, concur at least in the value they set upon the
trial by jury; or if there is any difference between them it consists
in this: the former regard it as a valuable safeguard to liberty; the
latter represent it as the very palladium of free government. For my
own part, the more the operation of the institution has fallen under my
observation, the more reason I have discovered for holding it in high
estimation; and it would be altogether superfluous to examine to what
extent it deserves to be esteemed useful or essential in a
representative republic, or how much more merit it may be entitled to,
as a defense against the oppressions of an hereditary monarch, than as
a barrier to the tyranny of popular magistrates in a popular
government. Discussions of this kind would be more curious than
beneficial, as all are satisfied of the utility of the institution, and
of its friendly aspect to liberty. But I must acknowledge that I cannot
readily discern the inseparable connection between the existence of
liberty, and the trial by jury in civil cases. Arbitrary impeachments,
arbitrary methods of prosecuting pretended offenses, and arbitrary
punishments upon arbitrary convictions, have ever appeared to me to be
the great engines of judicial despotism; and these have all relation to
criminal proceedings. The trial by jury in criminal cases, aided by the
habeas-corpus act, seems therefore to be alone concerned in the
question. And both of these are provided for, in the most ample manner,
in the plan of the convention.
It has been observed, that trial by jury is a safeguard against an
oppressive exercise of the power of taxation. This observation deserves
to be canvassed.
It is evident that it can have no influence upon the legislature, in
regard to the AMOUNT of taxes to be laid, to the OBJECTS upon which
they are to be imposed, or to the RULE by which they are to be
apportioned. If it can have any influence, therefore, it must be upon
the mode of collection, and the conduct of the officers intrusted with
the execution of the revenue laws.