 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Leon Meyer. The Federalist Papers. Federalist number 78 by Alexander Hamilton. The Judiciary Department. From McLean's Edition, New York. Wednesday, May 28, 1788. To the people of the State of New York. We proceed now to an examination of the Judiciary Department of the proposed government. In unfolding the defects of the existing confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed. The only questions which have been raised being relative to the manner of constituting it and to its extent. To these points, therefore, our observation shall be confined. The manner of constituting it seems to embrace these several objects. First, the mode of appointing the judges. Second, the tenure by which they are to hold their places. Third, the partition of the judiciary authority between different courts and their relations to each other. First, as to the mode of appointing the judges, this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the last two numbers that nothing can be said there which would not be useless repetition. Second, as to the tenure by which the judges are to hold their places. This chiefly concerns their duration in office, their provisions for their support, their precautions for their responsibility. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior, which is conformable to the most approved of the state constitutions and among the rest to that of this state. Its propriety having been drawn into question by the adversaries of that plan is no light symptom or the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the Prince. In a republic it is a no less excellent barrier to the encroachments and impressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different apartments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution, because it will be least in the capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either or the other two, and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that, though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter. I mean so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree that, quote, there is no liberty if the power of judging be not separated from the legislative and executive powers. And it proves in the last place that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union from either of the other departments, that as from the natural feebleness of the judiciary it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches, and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and in a great measure as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority, such, for instance, as they shall pass no bills of attainder, no expo's facto laws, and the like. Limitations of this kind can be preserved and practiced no other way than through the medium of course of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution, void. Without this all the reservation of particular rights or privileges would amount to nothing. Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which arrest cannot be unacceptable. There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than its principal, that the servant is above his master, that the representatives of the people are superior to the people themselves, that men acting by virtue of powers may do not only what their powers did not authorize, but they forbid. If it be said that the legislative bodies are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the constitution. It is not otherwise to be supposed that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has a superior obligation and validity ought, of course, to be preferred. Or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislator declared in its statutes stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. This exercise of judicial discretion and determining between two contradictory laws is exemplified in a familiar instance. It not uncommonly happens that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case it is the province of the courts to liquidate and fix their meaning in operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done. Where this is impracticable, it becomes a matter of necessity to give effect to one and exclusion of the other. The rule which is obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the discretion of their conduct is interpreters of the law. They thought it reasonable that between the interfering acts of an equal authority, that which is the last indication of its will, should have the preference. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority. And that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. They have no way to say that the courts on the pretense of a repugnancy may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes, or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove anything, would prove that there ought to be no judges distinct from that body. If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices. Since nothing will contribute so much of this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the constitution and the rights of the individuals from the effects of those ill-humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminated among the people themselves, although they speedily give place to better information and more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minor party in the community. Though I trust the friends of the proposed constitution will never concur with its enemies in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle that the representatives of the people whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible to provisions in the existing constitution would, on that account, be justifiable in a violation of those provisions or that the courts would be under a greater obligation to connive it in fractions in this shape than when they had preceded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, is binding upon themselves collectively, as well as individually, and no presumption or even knowledge of their sentiments can warrant their representatives and departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it have been instigated by the major voice of the community. But it is not with a view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of an occasional ill-humour in the society. These sometimes extend no farther than to the injury the private rights of particular classes of citizens by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operations of such laws. It not only serves to moderate the immediate mischiefs of those who may have been passed, but it operates as a check upon the legislative body and passing them, who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the court, are in a manner compelled by the very motives of the injustice they mediate to qualify their attempts. This is a circumstance calculated to have more influence upon the character-bar government than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more states than one, and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate man of every description ought to prize whatever will tend to be get or fortified that temper in the courts, as no man can be sure that he may not be tomorrow the victim of a spirit of injustice by which he may be a gainer today. And every man must now feel that the inevitable tendency of such a spirit is to set the foundations of public and private confidence and to introduce in its stead universal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution and of individuals which we now perceive to be indispensable in the courts of justice can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or another be fatal to the necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complacence to the branch which possessed it. If to both, there would be an unwillingness to hazard the displeasure of either. If to the people, or to persons chosen by them for special purpose, there would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted by the Constitution and the laws. There is yet a further and weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked with great propriety that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. It will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk, unless demand long and laborious study to acquire competent knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprises that the government can have no great option between fit character, and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear, but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenor of their judicial offices in point of duration, and that so far from being blameable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution. The judiciary continued from McLean's Edition, New York, Wednesday, May 28th, 1788, to the people of the State of New York. Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial from the legislative power in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every state have seen cause to limit the want of precise and explicit precautions in the state constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges, but the experiment has in some instances shown that such expressions are not sufficiently definite to produce legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States, quote, shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office, end quote. This, all circumstances considered, is the most eligible provision that could have been devised. It will be readily understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the constitution inadmissible. What might be extravagant today might in half a century be painerious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations and circumstances, yet under such restrictions as to put out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. A clause which has been quoted combines both advantages. The salaries of judicial officers may, from time to time, be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges. That of the former can neither be increased nor diminished. That of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary fixed at the commencement of that period will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend which would be very sufficient at their first appointment would become too small in the progress of their service. This provision for the support of the judges bears every mark of prudence and efficacy, and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states in regards to their own judges. The precautions for the responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives and tried by the Senate, and, if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges. The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer in a good purpose. The minceration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary, and insanity, without any formal or express provision, may safely be pronounced to be a virtual disqualification. The Constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove this provision. There is no station in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period and men who survive it, and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic where fortunes are not affluent, and pensions not expedient, the dismissions of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. Publius End of Federalist No. 79 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. First, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation. Second, to all those which concern the execution of the provisions expressly contained in the Articles of Union. Third, to all those in which the United States are a party. Fourth, 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. Fifth, 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 omission 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 co-extensive 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 upon 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 tranquility. 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 Lexlochi, 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 greater 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 toward the close of the 15th century, and informs us at the same time of the vast influence of that institution in appeasing the disorders and establishing the tranquility of the empire. This was a court invested with authority to decide finally all differences between the members of the German 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 to the basis of the union that the citizens of each state shall be entitled to all the privileges and immunities of citizens of 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 animate version. 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 even have 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 introduction results from the constitution and will have no connection with any law of the United States. Should paper money not withstanding be emitted, the controversies concerning it would be cases arising under the constitution and not the laws of the United States in the ordinary signification of those 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 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 these 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 already been 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 inconveniences 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 well-informed mind as a solid objection to a general principle which is calculated to avoid general mischief and to obtain general advantages. Publius. End of Federalist No. 80. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, visit LibriVox.org. Recorded by Kirsten Ferrari. The Federalist Papers. Federalist No. 81 by Alexander Hamilton. To the people of the State of New York. Let us now return to the partition of the judiciary authority between the different courts and their relation 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. 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 the 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 mold 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 judicial 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 remedy-less. 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, it 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 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 still a 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 marshaled 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 exceptional 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 anything 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 on 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 inferences 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 can never 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 entrusted 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, 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 authorize, 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 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 prevalence 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 whilst 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 everything 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 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 on 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 proved 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 freed 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 that 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 superscedure 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 it not 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 enquiry concerning the fact but it takes cognizance of it as it appears on the record and pronounces the law arising upon it. 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 will only 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 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 inconveniences 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 appellation 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 have 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 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 ensure 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. End of Federalist No. 81. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer visit LibriVox.org Recorded by Kirsten Ferreri The Federalist Papers Federalist No. 82 by Alexander 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 soventies tis 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 principle 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 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 may 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 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 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 that 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 the Congress should think proper to a point 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 sensible 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 entrusted 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 in 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 and 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. 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 to 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 and a Federalist number 82.