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FEDERALIST No. 82

The Judiciary Continued
From McLEAN's Edition, New York.

HAMILTON

To the People of the State of New York:
THE erection of a new government, whatever care or wisdom may
 distinguish the work, cannot fail to originate questions of
 intricacy and nicety; and these may, in a particular manner, be
 expected to flow from the establishment of a constitution founded
 upon the total or partial incorporation of a number of distinct
 sovereignties. 'T is time only that can mature and perfect so
 compound a system, can liquidate the meaning of all the parts, and
 can adjust them to each other in a harmonious and consistent WHOLE.
Such questions, accordingly, have arisen upon the plan proposed
 by the convention, and particularly concerning the judiciary
 department. The principal of these respect the situation of the
 State courts in regard to those causes which are to be submitted to
 federal jurisdiction. Is this to be exclusive, or are those courts
 to possess a concurrent jurisdiction? If the latter, in what
 relation will they stand to the national tribunals? These are
 inquiries which we meet with in the mouths of men of sense, and
 which are certainly entitled to attention.
The principles established in a former paper1 teach us that
 the States will retain all PRE-EXISTING authorities which may not be
 exclusively delegated to the federal head; and that this exclusive
 delegation can only exist in one of three cases: where an exclusive
 authority is, in express terms, granted to the Union; or where a
 particular authority is granted to the Union, and the exercise of a
 like authority is prohibited to the States; or where an authority
 is granted to the Union, with which a similar authority in the
 States would be utterly incompatible. Though these principles may
 not apply with the same force to the judiciary as to the legislative
 power, yet I am inclined to think that they are, in the main, just
 with respect to the former, as well as the latter. And under this
 impression, I shall lay it down as a rule, that the State courts
 will RETAIN the jurisdiction they now have, unless it appears to be
 taken away in one of the enumerated modes.
The only thing in the proposed Constitution, which wears the
 appearance of confining the causes of federal cognizance to the
 federal courts, is contained in this passage:  ``The JUDICIAL POWER
 of the United States SHALL BE VESTED in one Supreme Court, and in
 SUCH inferior courts as the Congress shall from time to time ordain
 and establish.'' This might either be construed to signify, that
 the supreme and subordinate courts of the Union should alone have
 the power of deciding those causes to which their authority is to
 extend; or simply to denote, that the organs of the national
 judiciary should be one Supreme Court, and as many subordinate
 courts as Congress should think proper to appoint; or in other
 words, that the United States should exercise the judicial power
 with which they are to be invested, through one supreme tribunal,
 and a certain number of inferior ones, to be instituted by them.
 The first excludes, the last admits, the concurrent jurisdiction of
 the State tribunals; and as the first would amount to an alienation
 of State power by implication, the last appears to me the most
 natural and the most defensible construction.
But this doctrine of concurrent jurisdiction is only clearly
 applicable to those descriptions of causes of which the State courts
 have previous cognizance. It is not equally evident in relation to
 cases which may grow out of, and be PECULIAR to, the Constitution to
 be established; for not to allow the State courts a right of
 jurisdiction in such cases, can hardly be considered as the
 abridgment of a pre-existing authority. I mean not therefore to
 contend that the United States, in the course of legislation upon
 the objects intrusted to their direction, may not commit the
 decision of causes arising upon a particular regulation to the
 federal courts solely, if such a measure should be deemed expedient;
 but I hold that the State courts will be divested of no part of
 their primitive jurisdiction, further than may relate to an appeal;
 and I am even of opinion that in every case in which they were not
 expressly excluded by the future acts of the national legislature,
 they will of course take cognizance of the causes to which those
 acts may give birth. This I infer from the nature of judiciary
 power, and from the general genius of the system. The judiciary
 power of every government looks beyond its own local or municipal
 laws, and in civil cases lays hold of all subjects of litigation
 between parties within its jurisdiction, though the causes of
 dispute are relative to the laws of the most distant part of the
 globe. Those of Japan, not less than of New York, may furnish the
 objects of legal discussion to our courts. When in addition to this
 we consider the State governments and the national governments, as
 they truly are, in the light of kindred systems, and as parts of ONE
 WHOLE, the inference seems to be conclusive, that the State courts
 would have a concurrent jurisdiction in all cases arising under the
 laws of the Union, where it was not expressly prohibited.
Here another question occurs: What relation would subsist
 between the national and State courts in these instances of
 concurrent jurisdiction? I answer, that an appeal would certainly
 lie from the latter, to the Supreme Court of the United States. The
 Constitution in direct terms gives an appellate jurisdiction to the
 Supreme Court in all the enumerated cases of federal cognizance in
 which it is not to have an original one, without a single expression
 to confine its operation to the inferior federal courts. The
 objects of appeal, not the tribunals from which it is to be made,
 are alone contemplated. From this circumstance, and from the reason
 of the thing, it ought to be construed to extend to the State
 tribunals. Either this must be the case, or the local courts must
 be excluded from a concurrent jurisdiction in matters of national
 concern, else the judiciary authority of the Union may be eluded at
 the pleasure of every plaintiff or prosecutor. Neither of these
 consequences ought, without evident necessity, to be involved; the
 latter would be entirely inadmissible, as it would defeat some of
 the most important and avowed purposes of the proposed government,
 and would essentially embarrass its measures. Nor do I perceive any
 foundation for such a supposition. Agreeably to the remark already
 made, the national and State systems are to be regarded as ONE WHOLE.
 The courts of the latter will of course be natural auxiliaries to
 the execution of the laws of the Union, and an appeal from them will
 as naturally lie to that tribunal which is destined to unite and
 assimilate the principles of national justice and the rules of
 national decisions. The evident aim of the plan of the convention
 is, that all the causes of the specified classes shall, for weighty
 public reasons, receive their original or final determination in the
 courts of the Union. To confine, therefore, the general expressions
 giving appellate jurisdiction to the Supreme Court, to appeals from
 the subordinate federal courts, instead of allowing their extension
 to the State courts, would be to abridge the latitude of the terms,
 in subversion of the intent, contrary to every sound rule of
 interpretation.
But could an appeal be made to lie from the State courts to the
 subordinate federal judicatories? This is another of the questions
 which have been raised, and of greater difficulty than the former.
 The following considerations countenance the affirmative. The plan
 of the convention, in the first place, authorizes the national
 legislature ``to constitute tribunals inferior to the Supreme
 Court.''2 It declares, in the next place, that ``the JUDICIAL
 POWER of the United States SHALL BE VESTED in one Supreme Court, and
 in such inferior courts as Congress shall ordain and establish'';
 and it then proceeds to enumerate the cases to which this judicial
 power shall extend. It afterwards divides the jurisdiction of the
 Supreme Court into original and appellate, but gives no definition
 of that of the subordinate courts. The only outlines described for
 them, are that they shall be ``inferior to the Supreme Court,'' and
 that they shall not exceed the specified limits of the federal
 judiciary. Whether their authority shall be original or appellate,
 or both, is not declared. All this seems to be left to the
 discretion of the legislature. And this being the case, I perceive
 at present no impediment to the establishment of an appeal from the
 State courts to the subordinate national tribunals; and many
 advantages attending the power of doing it may be imagined. It
 would diminish the motives to the multiplication of federal courts,
 and would admit of arrangements calculated to contract the appellate
 jurisdiction of the Supreme Court. The State tribunals may then be
 left with a more entire charge of federal causes; and appeals, in
 most cases in which they may be deemed proper, instead of being
 carried to the Supreme Court, may be made to lie from the State
 courts to district courts of the Union.
PUBLIUS.
1 No. 31.
2 Sec. 8th art. 1st.