FEDERALIST No. 82



The Judiciary Continued

From McLEAN's Edition, New York.

Wednesday, May 28, 1788



HAMILTON



To the People of the State of New York:



THE erection of a new government, whatever care or wisdom may

distinguish the work, cannot fail to originate questions of intricacy

and nicety; and these may, in a particular manner, be expected to flow

from the establishment of a constitution founded upon the total or

partial incorporation of a number of distinct sovereignties. '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

principal of these respect the situation of the State courts in regard

to those causes which are to be submitted to federal jurisdiction. Is

this to be exclusive, or are those courts to possess a concurrent

jurisdiction? If the latter, in what relation will they stand to the

national tribunals? These are inquiries which we meet with in the mouths

of men of sense, and which are certainly entitled to attention.



The principles established in a former paper[1] teach us that the States

will retain all pre-existing authorities which may not be exclusively

delegated to the federal head; and that this exclusive delegation can

only exist in one of three cases: where an exclusive authority is, in

express terms, granted to the Union; or where a particular authority is

granted to the Union, and the exercise of a like authority is prohibited

to the States; or where an authority is granted to the Union, with which

a similar authority in the States would be utterly incompatible. Though

these principles may not apply with the same force to the judiciary as

to the legislative power, yet I am inclined to think that they are, in

the main, just with respect to the former, as well as the latter. And

under this impression, I shall lay it down as a rule, that the State

courts will retain the jurisdiction they now have, unless it appears to

be taken away in one of the enumerated modes.



The only thing in the proposed Constitution, which wears the appearance

of confining the causes of federal cognizance to the federal courts, is

contained in this passage: "THE JUDICIAL POWER of the United States

shall be vested in one Supreme Court, and in such inferior courts as the

Congress shall from time to time ordain and establish." This might

either be construed to signify, that the supreme and subordinate courts

of the Union should alone have the power of deciding those causes to

which their authority is to extend; or simply to denote, that the organs

of the national judiciary should be one Supreme Court, and as many

subordinate courts as Congress should think proper to appoint; or in

other words, that the United States should exercise the judicial power

with which they are to be invested, through one supreme tribunal, and a

certain number of inferior ones, to be instituted by them. The first

excludes, the last admits, the concurrent jurisdiction of the State

tribunals; and as the first would amount to an alienation of State power

by implication, the last appears to me the most natural and the most

defensible construction.



But this doctrine of concurrent jurisdiction is only clearly applicable

to those descriptions of causes of which the State courts have previous

cognizance. It is not equally evident in relation to cases which may

grow out of, and be peculiar to, the Constitution to be established; for

not to allow the State courts a right of jurisdiction in such cases, can

hardly be considered as the abridgment of a pre-existing authority. I

mean not therefore to contend that the United States, in the course of

legislation upon the objects intrusted to their direction, may not

commit the decision of causes arising upon a particular regulation to

the federal courts solely, if such a measure should be deemed expedient;

but I hold that the State courts will be divested of no part of their

primitive jurisdiction, further than may relate to an appeal; and I am

even of opinion that in every case in which they were not expressly

excluded by the future acts of the national legislature, they will of

course take cognizance of the causes to which those acts may give birth.

This I infer from the nature of judiciary power, and from the general

genius of the system. The judiciary power of every government looks

beyond its own local or municipal laws, and in civil cases lays hold of

all subjects of litigation between parties within its jurisdiction,

though the causes of dispute are relative to the laws of the most

distant part of the globe. Those of Japan, not less than of New York,

may furnish the objects of legal discussion to our courts. When in

addition to this we consider the State governments and the national

governments, as they truly are, in the light of kindred systems, and as

parts of ONE WHOLE, the inference seems to be conclusive, that the State

courts would have a concurrent jurisdiction in all cases arising under

the laws of the Union, where it was not expressly prohibited.



Here another question occurs: What relation would subsist between the

national and State courts in these instances of concurrent jurisdiction?

I answer, that an appeal would certainly lie from the latter, to the

Supreme Court of the United States. The Constitution in direct terms

gives an appellate jurisdiction to the Supreme Court in all the

enumerated cases of federal cognizance in which it is not to have an

original one, without a single expression to confine its operation to

the inferior federal courts. The objects of appeal, not the tribunals

from which it is to be made, are alone contemplated. From this

circumstance, and from the reason of the thing, it ought to be construed

to extend to the State tribunals. Either this must be the case, or the

local courts must be excluded from a concurrent jurisdiction in matters

of national concern, else the judiciary authority of the Union may be

eluded at the pleasure of every plaintiff or prosecutor. Neither of

these consequences ought, without evident necessity, to be involved; the

latter would be entirely inadmissible, as it would defeat some of the

most important and avowed purposes of the proposed government, and would

essentially embarrass its measures. Nor do I perceive any foundation for

such a supposition. Agreeably to the remark already made, the national

and State systems are to be regarded as ONE WHOLE. The courts of the

latter will of course be natural auxiliaries to the execution of the

laws of the Union, and an appeal from them will as naturally lie to that

tribunal which is destined to unite and assimilate the principles of

national justice and the rules of national decisions. The evident aim of

the plan of the convention is, that all the causes of the specified

classes shall, for weighty public reasons, receive their original or

final determination in the courts of the Union. To confine, therefore,

the general expressions giving appellate jurisdiction to the Supreme

Court, to appeals from the subordinate federal courts, instead of

allowing their extension to the State courts, would be to abridge the

latitude of the terms, in subversion of the intent, contrary to every

sound rule of interpretation.



But could an appeal be made to lie from the State courts to the

subordinate federal judicatories? This is another of the questions which

have been raised, and of greater difficulty than the former. The

following considerations countenance the affirmative. The plan of the

convention, in the first place, authorizes the national legislature "to

constitute tribunals inferior to the Supreme Court."[2] It declares, in

the next place, that "the JUDICIAL POWER of the United States shall be

vested in one Supreme Court, and in such inferior courts as Congress

shall ordain and establish"; and it then proceeds to enumerate the cases

to which this judicial power shall extend. It afterwards divides the

jurisdiction of the Supreme Court into original and appellate, but gives

no definition of that of the subordinate courts. The only outlines

described for them, are that they shall be "inferior to the Supreme

Court," and that they shall not exceed the specified limits of the

federal judiciary. Whether their authority shall be original or

appellate, or both, is not declared. All this seems to be left to the

discretion of the legislature. And this being the case, I perceive at

present no impediment to the establishment of an appeal from the State

courts to the subordinate national tribunals; and many advantages

attending the power of doing it may be imagined. It would diminish the

motives to the multiplication of federal courts, and would admit of

arrangements calculated to contract the appellate jurisdiction of the

Supreme Court. The State tribunals may then be left with a more entire

charge of federal causes; and appeals, in most cases in which they may

be deemed proper, instead of being carried to the Supreme Court, may be

made to lie from the State courts to district courts of the Union.



PUBLIUS



1. No. 31.



2. Sec. 8, Art. 1.