>FEDERALIST No. 81 (Hamilton)                                  .



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,

DPA2@@``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.

But it does not follow that the re-examination of a fact once

 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 mode4; 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. I.

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.





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