>FEDERALIST No. 82 (Hamilton)                                  .



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 paper1 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. 31.

2 Sec. 8th art. 1st.





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