1787 Federalist 80 · Founding Made Plain

11787 Federalist No. 80

2The Powers of the Judiciary

3From McLEAN's Edition, New York.

4HAMILTON

5To the People of the State of New York:

6To JUDGE with accuracy of the proper extent

7 of the federal judicature,

8 it will be necessary to consider, in the first place,

9 what are its proper objects.

10It seems scarcely to admit of controversy,

11 that the judicary authority of the Union

12 ought to extend to these several

13 descriptions of cases:

14 1st, to all those which arise out of the laws

15 of the United States,

16 passed in pursuance of their just

17 and constitutional

18 powers of legislation;

19 2d, to all those which concern the execution

20 of the provisions expressly contained

21 in the articles of Union;

22 3d, to all those in which the United States

23 are a party;

24 4th, to all those which involve the PEACE

25 of the CONFEDERACY,

26 whether they relate to the intercourse

27 between the United States and foreign nations,

28 or to that between the States themselves;

29 5th, to all those which originate on the high seas,

30 and are of admiralty or maritime jurisdiction;

31 and, lastly, to all those

32 in which the State tribunals

33 cannot be supposed to be impartial and unbiased.

34The first point depends upon this obvious consideration,

35 that there ought always to be a constitutional method

36 of giving efficacy to constitutional provisions.

37What, for instance, would avail restrictions

38 on the authority of the State legislatures,

39 without some constitutional mode

40 of enforcing the observance of them?

41The States, by the plan of the convention,

42 are prohibited from doing a variety of things,

43 some of which are incompatible

44 with the interests of the Union,

45 and others with the principles of good government.

46The imposition of duties on imported articles,

47 and the emission of paper money,

48 are specimens of each kind.

49No man of sense will believe,

50 that such prohibitions would be scrupulously regarded,

51 without some effectual power in the government

52 to restrain or correct the infractions of them.

53This power must either be a direct negative

54 on the State laws,

55 or an authority in the federal courts

56 to overrule such as might be

57 in manifest contravention of the articles of Union.

58There is no third course that I can imagine.

59The latter appears to have been thought

60 by the convention preferable to the former,

61 and, I presume, will be most agreeable to the States.

62As to the second point,

63 it is impossible, by any argument or comment,

64 to make it clearer than it is in itself.

65If there are such things as political axioms,

66 the propriety of the judicial power of a government

67 being coextensive with its legislative,

68 may be ranked among the number.

69The mere necessity of uniformity

70 in the interpretation of the national laws,

71 decides the question.

72Thirteen independent courts of final jurisdiction

73 over the same causes, arising upon the same laws,

74 is a hydra in government,

75 from which nothing but contradiction and confusion

76 can proceed.

77Still less need be said in regard to the third point.

78Controversies between the nation

79 and its members or citizens,

80 can only be properly referred

81 to the national tribunals.

82Any other plan would be contrary to reason,

83 to precedent, and to decorum.

84The fourth point rests on this plain proposition,

85 that the peace of the WHOLE

86 ought not to be left at the disposal of a PART.

87The Union will undoubtedly be answerable

88 to foreign powers for the conduct of its members.

89And the responsibility for an injury

90 ought ever to be accompanied with the faculty

91 of preventing it.

92As the denial or perversion of justice

93 by the sentences of courts,

94 as well as in any other manner,

95 is with reason classed among

96 the just causes of war,

97 it will follow that the federal judiciary

98 ought to have cognizance of all causes

99 in which the citizens of other countries

100 are concerned.

101This is not less essential

102 to the preservation of the public faith,

103 than to the security of the public tranquillity.

104A distinction may perhaps be imagined

105 between cases arising upon treaties

106 and the laws of nations

107 and those which may stand merely

108 on the footing of the municipal law.

109The former kind may be supposed proper

110 for the federal jurisdiction,

111 the latter for that of the States.

112But it is at least problematical,

113 whether an unjust sentence against a foreigner,

114 where the subject of controversy

115 was wholly relative to the lex loci,

116 would not, if unredressed,

117 be an aggression upon his sovereign,

118 as well as one which violated the stipulations

119 of a treaty or the general law of nations.

120And a still greater objection to the distinction

121 would result from the immense difficulty,

122 if not impossibility,

123 of a practical discrimination

124 between the cases of one complexion

125 and those of the other.

126So great a proportion of the cases

127 in which foreigners are parties,

128 involve national questions,

129 that it is by far most safe and most expedient

130 to refer all those in which they are concerned

131 to the national tribunals.

132The power of determining causes between two States,

133 between one State and the citizens of another,

134 and between the citizens of different States,

135 is perhaps not less essential to the peace of the Union

136 than that which has been just examined.

137History gives us a horrid picture

138 of the dissensions and private wars

139 which distracted and desolated Germany

140 prior to the institution of the Imperial Chamber

141 by Maximilian,

142 towards the close of the fifteenth century;

143 and informs us, at the same time,

144 of the vast influence of that institution

145 in appeasing the disorders

146 and establishing the tranquillity of the empire.

147This was a court invested with authority

148 to decide finally all differences

149 among the members of the Germanic body.

150A method of terminating territorial disputes

151 between the States,

152 under the authority of the federal head,

153 was not unattended to, even in the imperfect system

154 by which they have been hitherto held together.

155But there are many other sources,

156 besides interfering claims of boundary,

157 from which bickerings and animosities may spring up

158 among the members of the Union.

159To some of these we have been witnesses

160 in the course of our past experience.

161It will readily be conjectured

162 that I allude to the fraudulent laws

163 which have been passed in too many of the States.

164And though the proposed Constitution

165 establishes particular guards

166 against the repetition of those instances

167 which have heretofore made their appearance,

168 yet it is warrantable to apprehend

169 that the spirit which produced them

170 will assume new shapes,

171 that could not be foreseen

172 nor specifically provided against.

173Whatever practices may have a tendency

174 to disturb the harmony between the States,

175 are proper objects of federal superintendence

176 and control.

177It may be esteemed the basis of the Union,

178 that "the citizens of each State

179 shall be entitled to all the privileges

180 and immunities

181 of citizens of the several States."

182And if it be a just principle

183 that every government

184 OUGHT TO POSSESS THE MEANS OF EXECUTING

185 ITS OWN PROVISIONS BY ITS OWN AUTHORITY,

186 it will follow,

187 that in order to the inviolable maintenance

188 of that equality of privileges and immunities

189 to which the citizens of the Union

190 will be entitled,

191 the national judiciary ought to preside

192 in all cases in which one State or its citizens

193 are opposed to another State or its citizens.

194To secure the full effect of so fundamental a provision

195 against all evasion and subterfuge,

196 it is necessary that its construction

197 should be committed to that tribunal

198 which, having no local attachments,

199 will be likely to be impartial

200 between the different States and their citizens,

201 and which, owing its official existence

202 to the Union,

203 will never be likely to feel any bias

204 inauspicious to the principles

205 on which it is founded.

206The fifth point will demand little animadversion.

207The most bigoted idolizers of State authority

208 have not thus far shown a disposition

209 to deny the national judiciary

210 the cognizances of maritime causes.

211These so generally depend on the laws of nations,

212 and so commonly affect the rights of foreigners,

213 that they fall within the considerations

214 which are relative to the public peace.

215The most important part of them are,

216 by the present Confederation,

217 submitted to federal jurisdiction.

218The reasonableness of the agency of the national courts

219 in cases in which the State tribunals

220 cannot be supposed to be impartial,

221 speaks for itself.

222No man ought certainly to be a judge in his own cause,

223 or in any cause in respect to which

224 he has the least interest or bias.

225This principle has no inconsiderable weight

226 in designating the federal courts

227 as the proper tribunals

228 for the determination of controversies

229 between different States and their citizens.

230And it ought to have the same operation

231 in regard to some cases between citizens

232 of the same State.

233Claims to land under grants of different States,

234 founded upon adverse pretensions of boundary,

235 are of this description.

236The courts of neither of the granting States

237 could be expected to be unbiased.

238The laws may have even prejudged the question,

239 and tied the courts down to decisions

240 in favor of the grants of the State

241 to which they belonged.

242And even where this had not been done,

243 it would be natural that the judges, as men,

244 should feel a strong predilection

245 to the claims of their own government.

246Having thus laid down and discussed the principles

247 which ought to regulate the constitution

248 of the federal judiciary,

249 we will proceed to test, by these principles,

250 the particular powers of which,

251 according to the plan of the convention,

252 it is to be composed.

253It is to comprehend

254 "all cases in law and equity arising under

255 the Constitution, the laws of the United States,

256 and treaties made, or which shall be made,

257 under their authority;

258 to all cases affecting ambassadors,

259 other public ministers, and consuls;

260 to all cases of admiralty

261 and maritime jurisdiction;

262 to controversies to which the United States

263 shall be a party;

264 to controversies between two or more States;

265 between a State and citizens of another State;

266 between citizens of different States;

267 between citizens of the same State

268 claiming lands and grants of different States;

269 and between a State or the citizens thereof

270 and foreign states, citizens, and subjects."

271This constitutes the entire mass

272 of the judicial authority of the Union.

273Let us now review it in detail.

274It is, then, to extend:

275First. To all cases in law and equity,

276 ARISING UNDER THE CONSTITUTION

277 and THE LAWS OF THE UNITED STATES.

278This corresponds with the two first classes of causes,

279 which have been enumerated,

280 as proper for the jurisdiction

281 of the United States.

282It has been asked, what is meant by

283 "cases arising under the Constitution,"

284 in contradiction from those

285 "arising under the laws of the United States"?

286The difference has been already explained.

287All the restrictions upon the authority

288 of the State legislatures furnish examples of it.

289They are not, for instance, to emit paper money;

290 but the interdiction results from the Constitution,

291 and will have no connection

292 with any law of the United States.

293Should paper money, notwithstanding, be emited,

294 the controversies concerning it

295 would be cases arising under the Constitution

296 and not the laws of the United States,

297 in the ordinary signification of the terms.

298This may serve as a sample of the whole.

299It has also been asked,

300 what need of the word "equity

301 What equitable causes can grow out of

302 the Constitution and laws of the United States?

303There is hardly a subject of litigation

304 between individuals,

305 which may not involve those ingredients

306 of FRAUD, ACCIDENT, TRUST, or HARDSHIP,

307 which would render the matter an object

308 of equitable rather than of legal jurisdiction,

309 as the distinction is known and established

310 in several of the States.

311It is the peculiar province, for instance,

312 of a court of equity to relieve against

313 what are called hard bargains:

314 these are contracts in which,

315 though there may have been no direct

316 fraud or deceit,

317 sufficient to invalidate them in a court of law,

318 yet there may have been some undue

319 and unconscionable advantage taken

320 of the necessities or misfortunes

321 of one of the parties,

322 which a court of equity would not tolerate.

323In such cases, where foreigners were concerned

324 on either side,

325 it would be impossible for the federal judicatories

326 to do justice without an equitable

327 as well as a legal jurisdiction.

328Agreements to convey lands

329 claimed under the grants of different States,

330 may afford another example

331 of the necessity of an equitable jurisdiction

332 in the federal courts.

333This reasoning may not be so palpable

334 in those States where the formal

335 and technical distinction

336 between LAW and EQUITY is not maintained,

337 as in this State,

338 where it is exemplified by every day's practice.

339The judiciary authority of the Union is to extend:

340Second. To treaties made, or which shall be made,

341 under the authority of the United States,

342 and to all cases affecting ambassadors,

343 other public ministers, and consuls.

344These belong to the fourth class of the enumerated cases,

345 as they have an evident connection

346 with the preservation of the national peace.

347Third. To cases of admiralty and maritime jurisdiction.

348These form, altogether,

349 the fifth of the enumerated classes of causes

350 proper for the cognizance of the national courts.

351Fourth. To controversies to which the United States

352 shall be a party.

353These constitute the third of those classes.

354Fifth. To controversies between two or more States;

355 between a State and citizens of another State;

356 between citizens of different States.

357These belong to the fourth of those classes,

358 and partake, in some measure,

359 of the nature of the last.

360Sixth. To cases between the citizens of the same State,

361 CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES.

362These fall within the last class,

363 and ARE THE ONLY INSTANCES IN WHICH

364 THE PROPOSED CONSTITUTION DIRECTLY CONTEMPLATES

365 THE COGNIZANCE OF DISPUTES

366 BETWEEN THE CITIZENS OF THE SAME STATE.

367Seventh. To cases between a State and the citizens thereof,

368 and foreign States, citizens, or subjects.

369These have been already explained

370 to belong to the fourth of the enumerated classes,

371 and have been shown to be, in a peculiar manner,

372 the proper subjects of the national judicature.

373From this review of the particular powers

374 of the federal judiciary,

375 as marked out in the Constitution,

376 it appears that they are all conformable

377 to the principles which ought to have governed

378 the structure of that department,

379 and which were necessary to the perfection

380 of the system.

381If some partial inconviences should appear

382 to be connected with the incorporation

383 of any of them into the plan,

384 it ought to be recollected

385 that the national legislature

386 will have ample authority to make such EXCEPTIONS,

387 and to prescribe such regulations

388 as will be calculated to obviate or remove

389 these inconveniences.

390The possibility of particular mischiefs

391 can never be viewed, by a wellinformed mind,

392 as a solid objection to a general principle,

393 which is calculated to avoid general mischiefs

394 and to obtain general advantages.

395PUBLIUS.