FEDERALIST. No. 81

The Judiciary Continued, and the Distribution of the Judicial

Authority

From McLEAN's Edition, New York.

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