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FEDERALIST. No. 81

The Judiciary Continued, and the Distribution of the Judicial
 Authority
From McLEAN's Edition, New York.

HAMILTON

To the People of the State of New York:
LET US now return to the partition of the judiciary authority
 between different courts, and their relations to each other,
DPA2@@``The judicial power of the United States is'' (by the plan of
 the convention) ``to be vested in one Supreme Court, and in such
 inferior courts as the Congress may, from time to time, ordain and
 establish.''1
That there ought to be one court of supreme and final
 jurisdiction, is a proposition which is not likely to be contested.
 The reasons for it have been assigned in another place, and are too
 obvious to need repetition. The only question that seems to have
 been raised concerning it, is, whether it ought to be a distinct
 body or a branch of the legislature. The same contradiction is
 observable in regard to this matter which has been remarked in
 several other cases. The very men who object to the Senate as a
 court of impeachments, on the ground of an improper intermixture of
 powers, advocate, by implication at least, the propriety of vesting
 the ultimate decision of all causes, in the whole or in a part of
 the legislative body.
The arguments, or rather suggestions, upon which this charge is
 founded, are to this effect: ``The authority of the proposed
 Supreme Court of the United States, which is to be a separate and
 independent body, will be superior to that of the legislature. The
 power of construing the laws according to the SPIRIT of the
 Constitution, will enable that court to mould them into whatever
 shape it may think proper; especially as its decisions will not be
 in any manner subject to the revision or correction of the
 legislative body. This is as unprecedented as it is dangerous. In
 Britain, the judical power, in the last resort, resides in the House
 of Lords, which is a branch of the legislature; and this part of
 the British government has been imitated in the State constitutions
 in general. The Parliament of Great Britain, and the legislatures
 of the several States, can at any time rectify, by law, the
 exceptionable decisions of their respective courts. But the errors
 and usurpations of the Supreme Court of the United States will be
 uncontrollable and remediless.'' This, upon examination, will be
 found to be made up altogether of false reasoning upon misconceived
 fact.
In the first place, there is not a syllable in the plan under
 consideration which DIRECTLY empowers the national courts to
 construe the laws according to the spirit of the Constitution, or
 which gives them any greater latitude in this respect than may be
 claimed by the courts of every State. I admit, however, that the
 Constitution ought to be the standard of construction for the laws,
 and that wherever there is an evident opposition, the laws ought to
 give place to the Constitution. But this doctrine is not deducible
 from any circumstance peculiar to the plan of the convention, but
 from the general theory of a limited Constitution; and as far as it
 is true, is equally applicable to most, if not to all the State
 governments. There can be no objection, therefore, on this account,
 to the federal judicature which will not lie against the local
 judicatures in general, and which will not serve to condemn every
 constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist
 in the particular organization of the Supreme Court; in its being
 composed of a distinct body of magistrates, instead of being one of
 the branches of the legislature, as in the government of Great
 Britain and that of the State. To insist upon this point, the
 authors of the objection must renounce the meaning they have labored
 to annex to the celebrated maxim, requiring a separation of the
 departments of power. It shall, nevertheless, be conceded to them,
 agreeably to the interpretation given to that maxim in the course of
 these papers, that it is not violated by vesting the ultimate power
 of judging in a PART of the legislative body. But though this be
 not an absolute violation of that excellent rule, yet it verges so
 nearly upon it, as on this account alone to be less eligible than
 the mode preferred by the convention. From a body which had even a
 partial agency in passing bad laws, we could rarely expect a
 disposition to temper and moderate them in the application. The
 same spirit which had operated in making them, would be too apt in
 interpreting them; still less could it be expected that men who had
 infringed the Constitution in the character of legislators, would be
 disposed to repair the breach in the character of judges. Nor is
 this all. Every reason which recommends the tenure of good behavior
 for judicial offices, militates against placing the judiciary power,
 in the last resort, in a body composed of men chosen for a limited
 period. There is an absurdity in referring the determination of
 causes, in the first instance, to judges of permanent standing; in
 the last, to those of a temporary and mutable constitution. And
 there is a still greater absurdity in subjecting the decisions of
 men, selected for their knowledge of the laws, acquired by long and
 laborious study, to the revision and control of men who, for want of
 the same advantage, cannot but be deficient in that knowledge. The
 members of the legislature will rarely be chosen with a view to
 those qualifications which fit men for the stations of judges; and
 as, on this account, there will be great reason to apprehend all the
 ill consequences of defective information, so, on account of the
 natural propensity of such bodies to party divisions, there will be
 no less reason to fear that the pestilential breath of faction may
 poison the fountains of justice. The habit of being continually
 marshalled on opposite sides will be too apt to stifle the voice
 both of law and of equity.
These considerations teach us to applaud the wisdom of those
 States who have committed the judicial power, in the last resort,
 not to a part of the legislature, but to distinct and independent
 bodies of men. Contrary to the supposition of those who have
 represented the plan of the convention, in this respect, as novel
 and unprecedented, it is but a copy of the constitutions of New
 Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland,
 Virginia, North Carolina, South Carolina, and Georgia; and the
 preference which has been given to those models is highly to be
 commended.
It is not true, in the second place, that the Parliament of
 Great Britain, or the legislatures of the particular States, can
 rectify the exceptionable decisions of their respective courts, in
 any other sense than might be done by a future legislature of the
 United States. The theory, neither of the British, nor the State
 constitutions, authorizes the revisal of a judicial sentence by a
 legislative act. Nor is there any thing in the proposed
 Constitution, more than in either of them, by which it is forbidden.
 In the former, as well as in the latter, the impropriety of the
 thing, on the general principles of law and reason, is the sole
 obstacle. A legislature, without exceeding its province, cannot
 reverse a determination once made in a particular case; though it
 may prescribe a new rule for future cases. This is the principle,
 and it applies in all its consequences, exactly in the same manner
 and extent, to the State governments, as to the national government
 now under consideration. Not the least difference can be pointed
 out in any view of the subject.
It may in the last place be observed that the supposed danger of
 judiciary encroachments on the legislative authority, which has been
 upon many occasions reiterated, is in reality a phantom. Particular
 misconstructions and contraventions of the will of the legislature
 may now and then happen; but they can never be so extensive as to
 amount to an inconvenience, or in any sensible degree to affect the
 order of the political system. This may be inferred with certainty,
 from the general nature of the judicial power, from the objects to
 which it relates, from the manner in which it is exercised, from its
 comparative weakness, and from its total incapacity to support its
 usurpations by force. And the inference is greatly fortified by the
 consideration of the important constitutional check which the power
 of instituting impeachments in one part of the legislative body, and
 of determining upon them in the other, would give to that body upon
 the members of the judicial department. This is alone a complete
 security. There never can be danger that the judges, by a series of
 deliberate usurpations on the authority of the legislature, would
 hazard the united resentment of the body intrusted with it, while
 this body was possessed of the means of punishing their presumption,
 by degrading them from their stations. While this ought to remove
 all apprehensions on the subject, it affords, at the same time, a
 cogent argument for constituting the Senate a court for the trial of
 impeachments.
Having now examined, and, I trust, removed the objections to the
 distinct and independent organization of the Supreme Court, I
 proceed to consider the propriety of the power of constituting
 inferior courts,2 and the relations which will subsist between
 these and the former.
The power of constituting inferior courts is evidently
 calculated to obviate the necessity of having recourse to the
 Supreme Court in every case of federal cognizance. It is intended
 to enable the national government to institute or AUTHORUZE, in each
 State or district of the United States, a tribunal competent to the
 determination of matters of national jurisdiction within its limits.
But why, it is asked, might not the same purpose have been
 accomplished by the instrumentality of the State courts? This
 admits of different answers. Though the fitness and competency of
 those courts should be allowed in the utmost latitude, yet the
 substance of the power in question may still be regarded as a
 necessary part of the plan, if it were only to empower the national
 legislature to commit to them the cognizance of causes arising out
 of the national Constitution. To confer the power of determining
 such causes upon the existing courts of the several States, would
 perhaps be as much ``to constitute tribunals,'' as to create new
 courts with the like power. But ought not a more direct and
 explicit provision to have been made in favor of the State courts?
 There are, in my opinion, substantial reasons against such a
 provision: the most discerning cannot foresee how far the
 prevalency of a local spirit may be found to disqualify the local
 tribunals for the jurisdiction of national causes; whilst every man
 may discover, that courts constituted like those of some of the
 States would be improper channels of the judicial authority of the
 Union. State judges, holding their offices during pleasure, or from
 year to year, will be too little independent to be relied upon for
 an inflexible execution of the national laws. And if there was a
 necessity for confiding the original cognizance of causes arising
 under those laws to them there would be a correspondent necessity
 for leaving the door of appeal as wide as possible. In proportion
 to the grounds of confidence in, or distrust of, the subordinate
 tribunals, ought to be the facility or difficulty of appeals. And
 well satisfied as I am of the propriety of the appellate
 jurisdiction, in the several classes of causes to which it is
 extended by the plan of the convention. I should consider every
 thing calculated to give, in practice, an UNRESTRAINED COURSE to
 appeals, as a source of public and private inconvenience.
I am not sure, but that it will be found highly expedient and
 useful, to divide the United States into four or five or half a
 dozen districts; and to institute a federal court in each district,
 in lieu of one in every State. The judges of these courts, with the
 aid of the State judges, may hold circuits for the trial of causes
 in the several parts of the respective districts. Justice through
 them may be administered with ease and despatch; and appeals may be
 safely circumscribed within a narrow compass. This plan appears to
 me at present the most eligible of any that could be adopted; and
 in order to it, it is necessary that the power of constituting
 inferior courts should exist in the full extent in which it is to be
 found in the proposed Constitution.
These reasons seem sufficient to satisfy a candid mind, that the
 want of such a power would have been a great defect in the plan.
 Let us now examine in what manner the judicial authority is to be
 distributed between the supreme and the inferior courts of the Union.
 The Supreme Court is to be invested with original jurisdiction,
 only ``in cases affecting ambassadors, other public ministers, and
 consuls, and those in which A STATE shall be a party.'' Public
 ministers of every class are the immediate representatives of their
 sovereigns. All questions in which they are concerned are so
 directly connected with the public peace, that, as well for the
 preservation of this, as out of respect to the sovereignties they
 represent, it is both expedient and proper that such questions
 should be submitted in the first instance to the highest judicatory
 of the nation. Though consuls have not in strictness a diplomatic
 character, yet as they are the public agents of the nations to which
 they belong, the same observation is in a great measure applicable
 to them. In cases in which a State might happen to be a party, it
 would ill suit its dignity to be turned over to an inferior tribunal.
 Though it may rather be a digression from the immediate subject
 of this paper, I shall take occasion to mention here a supposition
 which has excited some alarm upon very mistaken grounds. It has
 been suggested that an assignment of the public securities of one
 State to the citizens of another, would enable them to prosecute
 that State in the federal courts for the amount of those securities;
 a suggestion which the following considerations prove to be without
 foundation.
It is inherent in the nature of sovereignty not to be amenable
 to the suit of an individual WITHOUT ITS CONSENT. This is the
 general sense, and the general practice of mankind; and the
 exemption, as one of the attributes of sovereignty, is now enjoyed
 by the government of every State in the Union. Unless, therefore,
 there is a surrender of this immunity in the plan of the convention,
 it will remain with the States, and the danger intimated must be
 merely ideal. The circumstances which are necessary to produce an
 alienation of State sovereignty were discussed in considering the
 article of taxation, and need not be repeated here. A recurrence to
 the principles there established will satisfy us, that there is no
 color to pretend that the State governments would, by the adoption
 of that plan, be divested of the privilege of paying their own debts
 in their own way, free from every constraint but that which flows
 from the obligations of good faith. The contracts between a nation
 and individuals are only binding on the conscience of the sovereign,
 and have no pretensions to a compulsive force. They confer no right
 of action, independent of the sovereign will. To what purpose would
 it be to authorize suits against States for the debts they owe? How
 could recoveries be enforced? It is evident, it could not be done
 without waging war against the contracting State; and to ascribe to
 the federal courts, by mere implication, and in destruction of a
 pre-existing right of the State governments, a power which would
 involve such a consequence, would be altogether forced and
 unwarrantable.
Let us resume the train of our observations. We have seen that
 the original jurisdiction of the Supreme Court would be confined to
 two classes of causes, and those of a nature rarely to occur. In
 all other cases of federal cognizance, the original jurisdiction
 would appertain to the inferior tribunals; and the Supreme Court
 would have nothing more than an appellate jurisdiction, ``with such
 EXCEPTIONS and under such REGULATIONS as the Congress shall make.''
The propriety of this appellate jurisdiction has been scarcely
 called in question in regard to matters of law; but the clamors
 have been loud against it as applied to matters of fact. Some
 well-intentioned men in this State, deriving their notions from the
 language and forms which obtain in our courts, have been induced to
 consider it as an implied supersedure of the trial by jury, in favor
 of the civil-law mode of trial, which prevails in our courts of
 admiralty, probate, and chancery. A technical sense has been
 affixed to the term ``appellate,'' which, in our law parlance, is
 commonly used in reference to appeals in the course of the civil law.
 But if I am not misinformed, the same meaning would not be given
 to it in any part of New England. There an appeal from one jury to
 another, is familiar both in language and practice, and is even a
 matter of course, until there have been two verdicts on one side.
 The word ``appellate,'' therefore, will not be understood in the
 same sense in New England as in New York, which shows the
 impropriety of a technical interpretation derived from the
 jurisprudence of any particular State. The expression, taken in the
 abstract, denotes nothing more than the power of one tribunal to
 review the proceedings of another, either as to the law or fact, or
 both. The mode of doing it may depend on ancient custom or
 legislative provision (in a new government it must depend on the
 latter), and may be with or without the aid of a jury, as may be
 judged advisable. If, therefore, the re-examination of a fact once
 determined by a jury, should in any case be admitted under the
 proposed Constitution, it may be so regulated as to be done by a
 second jury, either by remanding the cause to the court below for a
 second trial of the fact, or by directing an issue immediately out
 of the Supreme Court.
But it does not follow that the re-examination of a fact once
 ascertained by a jury, will be permitted in the Supreme Court. Why
 may not it be said, with the strictest propriety, when a writ of
 error is brought from an inferior to a superior court of law in this
 State, that the latter has jurisdiction of the fact as well as the
 law? It is true it cannot institute a new inquiry concerning the
 fact, but it takes cognizance of it as it appears upon the record,
 and pronounces the law arising upon it.3 This is jurisdiction
 of both fact and law; nor is it even possible to separate them.
 Though the common-law courts of this State ascertain disputed facts
 by a jury, yet they unquestionably have jurisdiction of both fact
 and law; and accordingly when the former is agreed in the
 pleadings, they have no recourse to a jury, but proceed at once to
 judgment. I contend, therefore, on this ground, that the
 expressions, ``appellate jurisdiction, both as to law and fact,'' do
 not necessarily imply a re-examination in the Supreme Court of facts
 decided by juries in the inferior courts.
The following train of ideas may well be imagined to have
 influenced the convention, in relation to this particular provision.
 The appellate jurisdiction of the Supreme Court (it may have been
 argued) will extend to causes determinable in different modes, some
 in the course of the COMMON LAW, others in the course of the CIVIL
 LAW. In the former, the revision of the law only will be, generally
 speaking, the proper province of the Supreme Court; in the latter,
 the re-examination of the fact is agreeable to usage, and in some
 cases, of which prize causes are an example, might be essential to
 the preservation of the public peace. It is therefore necessary
 that the appellate jurisdiction should, in certain cases, extend in
 the broadest sense to matters of fact. It will not answer to make
 an express exception of cases which shall have been originally tried
 by a jury, because in the courts of some of the States ALL CAUSES
 are tried in this mode4; and such an exception would preclude
 the revision of matters of fact, as well where it might be proper,
 as where it might be improper. To avoid all inconveniencies, it
 will be safest to declare generally, that the Supreme Court shall
 possess appellate jurisdiction both as to law and FACT, and that
 this jurisdiction shall be subject to such EXCEPTIONS and
 regulations as the national legislature may prescribe. This will
 enable the government to modify it in such a manner as will best
 answer the ends of public justice and security.
This view of the matter, at any rate, puts it out of all doubt
 that the supposed ABOLITION of the trial by jury, by the operation
 of this provision, is fallacious and untrue. The legislature of the
 United States would certainly have full power to provide, that in
 appeals to the Supreme Court there should be no re-examination of
 facts where they had been tried in the original causes by juries.
 This would certainly be an authorized exception; but if, for the
 reason already intimated, it should be thought too extensive, it
 might be qualified with a limitation to such causes only as are
 determinable at common law in that mode of trial.
The amount of the observations hitherto made on the authority of
 the judicial department is this: that it has been carefully
 restricted to those causes which are manifestly proper for the
 cognizance of the national judicature; that in the partition of
 this authority a very small portion of original jurisdiction has
 been preserved to the Supreme Court, and the rest consigned to the
 subordinate tribunals; that the Supreme Court will possess an
 appellate jurisdiction, both as to law and fact, in all the cases
 referred to them, both subject to any EXCEPTIONS and REGULATIONS
 which may be thought advisable; that this appellate jurisdiction
 does, in no case, ABOLISH the trial by jury; and that an ordinary
 degree of prudence and integrity in the national councils will
 insure us solid advantages from the establishment of the proposed
 judiciary, without exposing us to any of the inconveniences which
 have been predicted from that source.
PUBLIUS.
1 Article 3, sec. I.
2 This power has been absurdly represented as intended to
 abolish all the county courts in the several States, which are
 commonly called inferior courts. But the expressions of the
 Constitution are, to constitute ``tribunals INFERIOR TO THE SUPREME
 COURT''; and the evident design of the provision is to enable the
 institution of local courts, subordinate to the Supreme, either in
 States or larger districts. It is ridiculous to imagine that county
 courts were in contemplation.
3 This word is composed of JUS and DICTIO, juris dictio or a
 speaking and pronouncing of the law.
4 I hold that the States will have concurrent jurisdiction with
 the subordinate federal judicatories, in many cases of federal
 cognizance, as will be explained in my next paper.