FEDERALIST No. 81



The Judiciary Continued, and the Distribution of the Judicial

Authority

From McLEAN's Edition, New York.

Wednesday, May 28, 1788



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.



"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 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 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 mode[4]; and such an exception would

preclude the revision of matters of fact, as well where it might be

proper, as where it might be improper. To avoid all inconveniencies, it

will be safest to declare generally, that the Supreme Court shall

possess appellate jurisdiction both as to law and fact, and that this

jurisdiction shall be subject to such exceptions and regulations as the

national legislature may prescribe. This will enable the government to

modify it in such a manner as will best answer the ends of public

justice and security.



This view of the matter, at any rate, puts it out of all doubt that the

supposed abolition of the trial by jury, by the operation of this

provision, is fallacious and untrue. The legislature of the United

States would certainly have full power to provide, that in appeals to

the Supreme Court there should be no re-examination of facts where they

had been tried in the original causes by juries. This would certainly be

an authorized exception; but if, for the reason already intimated, it

should be thought too extensive, it might be qualified with a limitation

to such causes only as are determinable at common law in that mode of

trial.



The amount of the observations hitherto made on the authority of the

judicial department is this: that it has been carefully restricted to

those causes which are manifestly proper for the cognizance of the

national judicature; that in the partition of this authority a very

small portion of original jurisdiction has been preserved to the Supreme

Court, and the rest consigned to the subordinate tribunals; that the

Supreme Court will possess an appellate jurisdiction, both as to law and

fact, in all the cases referred to them, both subject to any exceptions

and regulations which may be thought advisable; that this appellate

jurisdiction does, in no case, abolish the trial by jury; and that an

ordinary degree of prudence and integrity in the national councils will

insure us solid advantages from the establishment of the proposed

judiciary, without exposing us to any of the inconveniences which have

been predicted from that source.



PUBLIUS



1. Article 3, Sec. 1.



2. This power has been absurdly represented as intended to abolish all

the county courts in the several States, which are commonly called

inferior courts. But the expressions of the Constitution are, to

constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident

design of the provision is to enable the institution of local courts,

subordinate to the Supreme, either in States or larger districts. It is

ridiculous to imagine that county courts were in contemplation.



3. This word is composed of JUS and DICTIO, juris dictio or a speaking

and pronouncing of the law.



4. I hold that the States will have concurrent jurisdiction with the

subordinate federal judicatories, in many cases of federal cognizance,

as will be explained in my next paper.