>FEDERALIST No. 80 (Hamilton)                                  .

The Powers of the Judiciary

From McLEAN's Edition, New York.



HAMILTON



To the People of the State of New York:

To JUDGE with accuracy of the proper extent of the federal

 judicature, it will be necessary to consider, in the first place,

 what are its proper objects.

It seems scarcely to admit of controversy, that the judicary

 authority of the Union ought to extend to these several descriptions

 of cases: 1st, to all those which arise out of the laws of the

 United States, passed in pursuance of their just and constitutional

 powers of legislation; 2d, to all those which concern the execution

 of the provisions expressly contained in the articles of Union; 3d,

 to all those in which the United States are a party; 4th, to all

 those which involve the PEACE of the CONFEDERACY, whether they

 relate to the intercourse between the United States and foreign

 nations, or to that between the States themselves; 5th, to all

 those which originate on the high seas, and are of admiralty or

 maritime jurisdiction; and, lastly, to all those in which the State

 tribunals cannot be supposed to be impartial and unbiased.

The first point depends upon this obvious consideration, that

 there ought always to be a constitutional method of giving efficacy

 to constitutional provisions. What, for instance, would avail

 restrictions on the authority of the State legislatures, without

 some constitutional mode of enforcing the observance of them? The

 States, by the plan of the convention, are prohibited from doing a

 variety of things, some of which are incompatible with the interests

 of the Union, and others with the principles of good government.

 The imposition of duties on imported articles, and the emission of

 paper money, are specimens of each kind. No man of sense will

 believe, that such prohibitions would be scrupulously regarded,

 without some effectual power in the government to restrain or

 correct the infractions of them. This power must either be a direct

 negative on the State laws, or an authority in the federal courts to

 overrule such as might be in manifest contravention of the articles

 of Union. There is no third course that I can imagine. The latter

 appears to have been thought by the convention preferable to the

 former, and, I presume, will be most agreeable to the States.

As to the second point, it is impossible, by any argument or

 comment, to make it clearer than it is in itself. If there are such

 things as political axioms, the propriety of the judicial power of a

 government being coextensive with its legislative, may be ranked

 among the number. The mere necessity of uniformity in the

 interpretation of the national laws, decides the question. Thirteen

 independent courts of final jurisdiction over the same causes,

 arising upon the same laws, is a hydra in government, from which

 nothing but contradiction and confusion can proceed.

Still less need be said in regard to the third point.

 Controversies between the nation and its members or citizens, can

 only be properly referred to the national tribunals. Any other plan

 would be contrary to reason, to precedent, and to decorum.

The fourth point rests on this plain proposition, that the peace

 of the WHOLE ought not to be left at the disposal of a PART. The

 Union will undoubtedly be answerable to foreign powers for the

 conduct of its members. And the responsibility for an injury ought

 ever to be accompanied with the faculty of preventing it. As the

 denial or perversion of justice by the sentences of courts, as well

 as in any other manner, is with reason classed among the just causes

 of war, it will follow that the federal judiciary ought to have

 cognizance of all causes in which the citizens of other countries

 are concerned. This is not less essential to the preservation of

 the public faith, than to the security of the public tranquillity.

 A distinction may perhaps be imagined between cases arising upon

 treaties and the laws of nations and those which may stand merely on

 the footing of the municipal law. The former kind may be supposed

 proper for the federal jurisdiction, the latter for that of the

 States. But it is at least problematical, whether an unjust

 sentence against a foreigner, where the subject of controversy was

 wholly relative to the lex loci, would not, if unredressed, be

 an aggression upon his sovereign, as well as one which violated the

 stipulations of a treaty or the general law of nations. And a still

 greater objection to the distinction would result from the immense

 difficulty, if not impossibility, of a practical discrimination

 between the cases of one complexion and those of the other. So

 great a proportion of the cases in which foreigners are parties,

 involve national questions, that it is by far most safe and most

 expedient to refer all those in which they are concerned to the

 national tribunals.

The power of determining causes between two States, between one

 State and the citizens of another, and between the citizens of

 different States, is perhaps not less essential to the peace of the

 Union than that which has been just examined. History gives us a

 horrid picture of the dissensions and private wars which distracted

 and desolated Germany prior to the institution of the Imperial

 Chamber by Maximilian, towards the close of the fifteenth century;

 and informs us, at the same time, of the vast influence of that

 institution in appeasing the disorders and establishing the

 tranquillity of the empire. This was a court invested with

 authority to decide finally all differences among the members of the

 Germanic body.

A method of terminating territorial disputes between the States,

 under the authority of the federal head, was not unattended to, even

 in the imperfect system by which they have been hitherto held

 together. But there are many other sources, besides interfering

 claims of boundary, from which bickerings and animosities may spring

 up among the members of the Union. To some of these we have been

 witnesses in the course of our past experience. It will readily be

 conjectured that I allude to the fraudulent laws which have been

 passed in too many of the States. And though the proposed

 Constitution establishes particular guards against the repetition of

 those instances which have heretofore made their appearance, yet it

 is warrantable to apprehend that the spirit which produced them will

 assume new shapes, that could not be foreseen nor specifically

 provided against. Whatever practices may have a tendency to disturb

 the harmony between the States, are proper objects of federal

 superintendence and control.

It may be esteemed the basis of the Union, that ``the citizens

 of each State shall be entitled to all the privileges and immunities

 of citizens of the several States.'' And if it be a just principle

 that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS

 OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order

 to the inviolable maintenance of that equality of privileges and

 immunities to which the citizens of the Union will be entitled, the

 national judiciary ought to preside in all cases in which one State

 or its citizens are opposed to another State or its citizens. To

 secure the full effect of so fundamental a provision against all

 evasion and subterfuge, it is necessary that its construction should

 be committed to that tribunal which, having no local attachments,

 will be likely to be impartial between the different States and

 their citizens, and which, owing its official existence to the

 Union, will never be likely to feel any bias inauspicious to the

 principles on which it is founded.

The fifth point will demand little animadversion. The most

 bigoted idolizers of State authority have not thus far shown a

 disposition to deny the national judiciary the cognizances of

 maritime causes. These so generally depend on the laws of nations,

 and so commonly affect the rights of foreigners, that they fall

 within the considerations which are relative to the public peace.

 The most important part of them are, by the present Confederation,

 submitted to federal jurisdiction.

The reasonableness of the agency of the national courts in cases

 in which the State tribunals cannot be supposed to be impartial,

 speaks for itself. No man ought certainly to be a judge in his own

 cause, or in any cause in respect to which he has the least interest

 or bias. This principle has no inconsiderable weight in designating

 the federal courts as the proper tribunals for the determination of

 controversies between different States and their citizens. And it

 ought to have the same operation in regard to some cases between

 citizens of the same State. Claims to land under grants of

 different States, founded upon adverse pretensions of boundary, are

 of this description. The courts of neither of the granting States

 could be expected to be unbiased. The laws may have even prejudged

 the question, and tied the courts down to decisions in favor of the

 grants of the State to which they belonged. And even where this had

 not been done, it would be natural that the judges, as men, should

 feel a strong predilection to the claims of their own government.

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.





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