1787 Federalist 81 · Founding Made Plain

11787 Federalist No. 81

2The Judiciary Continued,

3and the Distribution of the Judicial Authority

4From McLEAN's Edition, New York.

5HAMILTON

6To the People of the State of New York:

7LET US now return to the partition

8 of the judiciary authority between different courts,

9 and their relations to each other,

10 "The judicial power of the United States is"

11 (by the plan of the convention)

12 "to be vested in one Supreme Court,

13 and in such inferior courts as the Congress may,

14 from time to time, ordain and establish." 1

15That there ought to be one court

16 of supreme and final jurisdiction,

17 is a proposition which is not likely to be contested.

18The reasons for it have been assigned in another place,

19 and are too obvious to need repetition.

20The only question that seems to have been raised

21 concerning it, is,

22 whether it ought to be a distinct body

23 or a branch of the legislature.

24The same contradiction is observable

25 in regard to this matter

26 which has been remarked in several other cases.

27The very men who object to the Senate

28 as a court of impeachments,

29 on the ground of an improper intermixture of powers,

30 advocate, by implication at least,

31 the propriety of vesting the ultimate decision

32 of all causes,

33 in the whole or in a part of the legislative body.

34The arguments, or rather suggestions,

35 upon which this charge is founded, are to this effect:

36 "The authority of the proposed Supreme Court

37 of the United States,

38 which is to be a separate and independent body,

39 will be superior to that of the legislature.

40The power of construing the laws

41 according to the SPIRIT of the Constitution,

42 will enable that court to mould them

43 into whatever shape it may think proper;

44 especially as its decisions will not be

45 in any manner subject to the revision or correction

46 of the legislative body.

47This is as unprecedented as it is dangerous.

48In Britain, the judical power, in the last resort,

49 resides in the House of Lords,

50 which is a branch of the legislature;

51 and this part of the British government

52 has been imitated in the State constitutions

53 in general.

54The Parliament of Great Britain,

55 and the legislatures of the several States,

56 can at any time rectify, by law,

57 the exceptionable decisions

58 of their respective courts.

59But the errors and usurpations

60 of the Supreme Court of the United States

61 will be uncontrollable and remediless."

62This, upon examination, will be found to be made up

63 altogether of false reasoning upon misconceived fact.

64In the first place,

65 there is not a syllable in the plan under consideration

66 which DIRECTLY empowers the national courts

67 to construe the laws according to the spirit

68 of the Constitution,

69 or which gives them any greater latitude

70 in this respect

71 than may be claimed by the courts of every State.

72I admit, however,

73 that the Constitution ought to be the standard

74 of construction for the laws,

75 and that wherever there is an evident opposition,

76 the laws ought to give place to the Constitution.

77But this doctrine is not deducible

78 from any circumstance peculiar to the plan

79 of the convention,

80 but from the general theory

81 of a limited Constitution;

82 and as far as it is true,

83 is equally applicable to most,

84 if not to all the State governments.

85There can be no objection, therefore,

86 on this account, to the federal judicature

87 which will not lie against the local judicatures

88 in general,

89 and which will not serve to condemn

90 every constitution

91 that attempts to set bounds

92 to legislative discretion.

93But perhaps the force of the objection

94 may be thought to consist

95 in the particular organization

96 of the Supreme Court;

97 in its being composed of a distinct body

98 of magistrates,

99 instead of being one of the branches

100 of the legislature,

101 as in the government of Great Britain

102 and that of the State.

103To insist upon this point,

104 the authors of the objection must renounce the meaning

105 they have labored to annex to the celebrated maxim,

106 requiring a separation of the departments of power.

107It shall, nevertheless, be conceded to them,

108 agreeably to the interpretation given to that maxim

109 in the course of these papers,

110 that it is not violated by vesting

111 the ultimate power of judging

112 in a PART of the legislative body.

113But though this be not an absolute violation

114 of that excellent rule,

115 yet it verges so nearly upon it,

116 as on this account alone to be less eligible

117 than the mode preferred by the convention.

118From a body which had even a partial agency

119 in passing bad laws,

120 we could rarely expect a disposition

121 to temper and moderate them in the application.

122The same spirit which had operated in making them,

123 would be too apt in interpreting them;

124 still less could it be expected

125 that men who had infringed the Constitution

126 in the character of legislators,

127 would be disposed to repair the breach

128 in the character of judges.

129Nor is this all.

130Every reason which recommends the tenure of good behavior

131 for judicial offices,

132 militates against placing the judiciary power,

133 in the last resort,

134 in a body composed of men chosen

135 for a limited period.

136There is an absurdity

137 in referring the determination of causes,

138 in the first instance,

139 to judges of permanent standing;

140 in the last,

141 to those of a temporary and mutable constitution.

142And there is a still greater absurdity

143 in subjecting the decisions of men,

144 selected for their knowledge of the laws,

145 acquired by long and laborious study,

146 to the revision and control of men

147 who, for want of the same advantage,

148 cannot but be deficient in that knowledge.

149The members of the legislature

150 will rarely be chosen with a view

151 to those qualifications

152 which fit men for the stations of judges;

153 and as, on this account,

154 there will be great reason to apprehend

155 all the ill consequences of defective information,

156 so, on account of the natural propensity

157 of such bodies to party divisions,

158 there will be no less reason to fear

159 that the pestilential breath of faction

160 may poison the fountains of justice.

161The habit of being continually marshalled on opposite sides

162 will be too apt to stifle the voice

163 both of law and of equity.

164These considerations teach us to applaud the wisdom

165 of those States who have committed the judicial power,

166 in the last resort,

167 not to a part of the legislature,

168 but to distinct and independent bodies of men.

169Contrary to the supposition of those

170 who have represented the plan of the convention,

171 in this respect, as novel and unprecedented,

172 it is but a copy of the constitutions

173 of New Hampshire, Massachusetts, Pennsylvania,

174 Delaware, Maryland, Virginia, North Carolina,

175 South Carolina, and Georgia;

176 and the preference which has been given to those models

177 is highly to be commended.

178It is not true, in the second place,

179 that the Parliament of Great Britain,

180 or the legislatures of the particular States,

181 can rectify the exceptionable decisions

182 of their respective courts,

183 in any other sense than might be done

184 by a future legislature of the United States.

185The theory, neither of the British,

186 nor the State constitutions,

187 authorizes the revisal of a judicial sentence

188 by a legislative act.

189Nor is there any thing in the proposed Constitution,

190 more than in either of them, by which it is forbidden.

191In the former, as well as in the latter,

192 the impropriety of the thing,

193 on the general principles of law and reason,

194 is the sole obstacle.

195A legislature, without exceeding its province,

196 cannot reverse a determination

197 once made in a particular case;

198 though it may prescribe a new rule

199 for future cases.

200This is the principle,

201 and it applies in all its consequences,

202 exactly in the same manner and extent,

203 to the State governments,

204 as to the national government

205 now under consideration.

206Not the least difference can be pointed out

207 in any view of the subject.

208It may in the last place be observed

209 that the supposed danger of judiciary encroachments

210 on the legislative authority,

211 which has been upon many occasions reiterated,

212 is in reality a phantom.

213Particular misconstructions and contraventions

214 of the will of the legislature

215 may now and then happen;

216 but they can never be so extensive

217 as to amount to an inconvenience,

218 or in any sensible degree

219 to affect the order of the political system.

220This may be inferred with certainty,

221 from the general nature of the judicial power,

222 from the objects to which it relates,

223 from the manner in which it is exercised,

224 from its comparative weakness,

225 and from its total incapacity

226 to support its usurpations by force.

227And the inference is greatly fortified

228 by the consideration of the important

229 constitutional check

230 which the power of instituting impeachments

231 in one part of the legislative body,

232 and of determining upon them in the other,

233 would give to that body

234 upon the members of the judicial department.

235This is alone a complete security.

236There never can be danger that the judges,

237 by a series of deliberate usurpations

238 on the authority of the legislature,

239 would hazard the united resentment

240 of the body intrusted with it,

241 while this body was possessed of the means

242 of punishing their presumption,

243 by degrading them from their stations.

244While this ought to remove all apprehensions

245 on the subject,

246 it affords, at the same time,

247 a cogent argument for constituting the Senate

248 a court for the trial of impeachments.

249Having now examined, and, I trust, removed the objections

250 to the distinct and independent organization

251 of the Supreme Court,

252 I proceed to consider the propriety

253 of the power of constituting inferior courts, 2

254 and the relations which will subsist

255 between these and the former.

256The power of constituting inferior courts

257 is evidently calculated to obviate the necessity

258 of having recourse to the Supreme Court

259 in every case of federal cognizance.

260It is intended to enable the national government

261 to institute or AUTHORUZE,

262 in each State or district of the United States,

263 a tribunal competent to the determination

264 of matters of national jurisdiction

265 within its limits.

266But why, it is asked,

267 might not the same purpose have been accomplished

268 by the instrumentality of the State courts?

269This admits of different answers.

270Though the fitness and competency of those courts

271 should be allowed in the utmost latitude,

272 yet the substance of the power in question

273 may still be regarded as a necessary part

274 of the plan,

275 if it were only to empower the national legislature

276 to commit to them the cognizance of causes

277 arising out of the national Constitution.

278To confer the power of determining such causes

279 upon the existing courts of the several States,

280 would perhaps be as much "to constitute tribunals,"

281 as to create new courts with the like power.

282But ought not a more direct and explicit provision

283 to have been made in favor of the State courts?

284There are, in my opinion,

285 substantial reasons against such a provision:

286 the most discerning cannot foresee

287 how far the prevalency of a local spirit

288 may be found to disqualify the local tribunals

289 for the jurisdiction of national causes;

290 whilst every man may discover,

291 that courts constituted like those

292 of some of the States

293 would be improper channels

294 of the judicial authority of the Union.

295State judges, holding their offices during pleasure,

296 or from year to year,

297 will be too little independent to be relied upon

298 for an inflexible execution of the national laws.

299And if there was a necessity

300 for confiding the original cognizance of causes

301 arising under those laws to them

302 there would be a correspondent necessity

303 for leaving the door of appeal as wide as possible.

304In proportion to the grounds of confidence in,

305 or distrust of, the subordinate tribunals,

306 ought to be the facility or difficulty of appeals.

307And well satisfied as I am of the propriety

308 of the appellate jurisdiction,

309 in the several classes of causes

310 to which it is extended

311 by the plan of the convention.

312I should consider every thing calculated to give,

313 in practice, an UNRESTRAINED COURSE to appeals,

314 as a source of public and private inconvenience.

315I am not sure, but that it will be found

316 highly expedient and useful,

317 to divide the United States

318 into four or five or half a dozen districts;

319 and to institute a federal court in each district,

320 in lieu of one in every State.

321The judges of these courts,

322 with the aid of the State judges,

323 may hold circuits for the trial of causes

324 in the several parts of the respective districts.

325Justice through them may be administered

326 with ease and despatch;

327 and appeals may be safely circumscribed

328 within a narrow compass.

329This plan appears to me at present

330 the most eligible of any that could be adopted;

331 and in order to it, it is necessary

332 that the power of constituting inferior courts

333 should exist in the full extent

334 in which it is to be found

335 in the proposed Constitution.

336These reasons seem sufficient to satisfy a candid mind,

337 that the want of such a power

338 would have been a great defect in the plan.

339Let us now examine in what manner

340 the judicial authority is to be distributed

341 between the supreme and the inferior courts

342 of the Union.

343The Supreme Court is to be invested

344 with original jurisdiction, only

345 "in cases affecting ambassadors,

346 other public ministers, and consuls,

347 and those in which A STATE shall be a party."

348Public ministers of every class

349 are the immediate representatives of their sovereigns.

350All questions in which they are concerned

351 are so directly connected with the public peace,

352 that, as well for the preservation of this,

353 as out of respect to the sovereignties

354 they represent,

355 it is both expedient and proper

356 that such questions should be submitted

357 in the first instance

358 to the highest judicatory of the nation.

359Though consuls have not in strictness

360 a diplomatic character,

361 yet as they are the public agents

362 of the nations to which they belong,

363 the same observation is in a great measure

364 applicable to them.

365In cases in which a State might happen to be a party,

366 it would ill suit its dignity

367 to be turned over to an inferior tribunal.

368Though it may rather be a digression

369 from the immediate subject of this paper,

370 I shall take occasion to mention here a supposition

371 which has excited some alarm

372 upon very mistaken grounds.

373It has been suggested

374 that an assignment of the public securities

375 of one State

376 to the citizens of another,

377 would enable them to prosecute that State

378 in the federal courts for the amount

379 of those securities;

380 a suggestion which the following considerations

381 prove to be without foundation.

382It is inherent in the nature of sovereignty

383 not to be amenable to the suit of an individual

384 WITHOUT ITS CONSENT.

385This is the general sense,

386 and the general practice of mankind;

387 and the exemption, as one of the attributes

388 of sovereignty,

389 is now enjoyed by the government

390 of every State in the Union.

391Unless, therefore,

392 there is a surrender of this immunity

393 in the plan of the convention,

394 it will remain with the States,

395 and the danger intimated must be merely ideal.

396The circumstances which are necessary

397 to produce an alienation of State sovereignty

398 were discussed in considering the article of taxation,

399 and need not be repeated here.

400A recurrence to the principles there established

401 will satisfy us,

402 that there is no color to pretend

403 that the State governments would,

404 by the adoption of that plan,

405 be divested of the privilege

406 of paying their own debts in their own way,

407 free from every constraint

408 but that which flows from the obligations

409 of good faith.

410The contracts between a nation and individuals

411 are only binding on the conscience of the sovereign,

412 and have no pretensions to a compulsive force.

413They confer no right of action,

414 independent of the sovereign will.

415To what purpose would it be

416 to authorize suits against States

417 for the debts they owe?

418How could recoveries be enforced?

419It is evident,

420 it could not be done without waging war

421 against the contracting State;

422 and to ascribe to the federal courts,

423 by mere implication,

424 and in destruction of a pre-existing right

425 of the State governments,

426 a power which would involve such a consequence,

427 would be altogether forced and unwarrantable.

428Let us resume the train of our observations.

429We have seen that the original jurisdiction

430 of the Supreme Court would be confined

431 to two classes of causes,

432 and those of a nature rarely to occur.

433In all other cases of federal cognizance,

434 the original jurisdiction would appertain

435 to the inferior tribunals;

436 and the Supreme Court would have nothing more

437 than an appellate jurisdiction,

438 "with such EXCEPTIONS and under such REGULATIONS

439 as the Congress shall make."

440The propriety of this appellate jurisdiction

441 has been scarcely called in question

442 in regard to matters of law;

443 but the clamors have been loud against it

444 as applied to matters of fact.

445Some well-intentioned men in this State,

446 deriving their notions from the language and forms

447 which obtain in our courts,

448 have been induced to consider it

449 as an implied supersedure of the trial by jury,

450 in favor of the civil-law mode of trial,

451 which prevails in our courts

452 of admiralty, probate, and chancery.

453A technical sense has been affixed to the term "appellate,"

454 which, in our law parlance,

455 is commonly used in reference to appeals

456 in the course of the civil law.

457But if I am not misinformed,

458 the same meaning would not be given to it

459 in any part of New England.

460There an appeal from one jury to another,

461 is familiar both in language and practice,

462 and is even a matter of course,

463 until there have been two verdicts on one side.

464The word "appellate," therefore,

465 will not be understood in the same sense

466 in New England as in New York,

467 which shows the impropriety

468 of a technical interpretation

469 derived from the jurisprudence

470 of any particular State.

471The expression, taken in the abstract,

472 denotes nothing more than the power of one tribunal

473 to review the proceedings of another,

474 either as to the law or fact, or both.

475The mode of doing it may depend

476 on ancient custom or legislative provision

477 (in a new government it must depend on the latter),

478 and may be with or without the aid of a jury,

479 as may be judged advisable.

480If, therefore, the re-examination of a fact

481 once determined by a jury,

482 should in any case be admitted

483 under the proposed Constitution,

484 it may be so regulated as to be done

485 by a second jury,

486 either by remanding the cause to the court below

487 for a second trial of the fact,

488 or by directing an issue immediately

489 out of the Supreme Court.

490But it does not follow

491 that the re-examination of a fact

492 once ascertained by a jury,

493 will be permitted in the Supreme Court.

494Why may not it be said, with the strictest propriety,

495 when a writ of error is brought

496 from an inferior to a superior court of law

497 in this State,

498 that the latter has jurisdiction

499 of the fact as well as the law?

500It is true it cannot institute a new inquiry

501 concerning the fact,

502 but it takes cognizance of it

503 as it appears upon the record,

504 and pronounces the law arising upon it. 3

505This is jurisdiction of both fact and law;

506 nor is it even possible to separate them.

507Though the common-law courts of this State

508 ascertain disputed facts by a jury,

509 yet they unquestionably have jurisdiction

510 of both fact and law;

511 and accordingly when the former is agreed

512 in the pleadings,

513 they have no recourse to a jury,

514 but proceed at once to judgment.

515I contend, therefore, on this ground,

516 that the expressions,

517 "appellate jurisdiction, both as to law and fact,"

518 do not necessarily imply a re-examination

519 in the Supreme Court of facts decided by juries

520 in the inferior courts.

521The following train of ideas

522 may well be imagined to have influenced the convention,

523 in relation to this particular provision.

524The appellate jurisdiction of the Supreme Court

525 (it may have been argued)

526 will extend to causes determinable in different modes,

527 some in the course of the COMMON LAW,

528 others in the course of the CIVIL LAW.

529In the former, the revision of the law only

530 will be, generally speaking,

531 the proper province of the Supreme Court;

532 in the latter, the re-examination of the fact

533 is agreeable to usage,

534 and in some cases,

535 of which prize causes are an example,

536 might be essential to the preservation

537 of the public peace.

538It is therefore necessary

539 that the appellate jurisdiction should,

540 in certain cases,

541 extend in the broadest sense to matters of fact.

542It will not answer to make an express exception

543 of cases which shall have been originally

544 tried by a jury,

545 because in the courts of some of the States

546 ALL CAUSES are tried in this mode; 4

547 and such an exception would preclude

548 the revision of matters of fact,

549 as well where it might be proper,

550 as where it might be improper.

551To avoid all inconveniencies,

552 it will be safest to declare generally,

553 that the Supreme Court shall possess

554 appellate jurisdiction both as to law and FACT,

555 and that this jurisdiction shall be subject

556 to such EXCEPTIONS and regulations

557 as the national legislature may prescribe.

558This will enable the government to modify it

559 in such a manner as will best answer

560 the ends of public justice and security.

561This view of the matter, at any rate,

562 puts it out of all doubt

563 that the supposed ABOLITION of the trial by jury,

564 by the operation of this provision,

565 is fallacious and untrue.

566The legislature of the United States

567 would certainly have full power to provide,

568 that in appeals to the Supreme Court

569 there should be no re-examination of facts

570 where they had been tried

571 in the original causes by juries.

572This would certainly be an authorized exception;

573 but if, for the reason already intimated,

574 it should be thought too extensive,

575 it might be qualified with a limitation

576 to such causes only

577 as are determinable at common law

578 in that mode of trial.

579The amount of the observations hitherto made

580 on the authority of the judicial department is this:

581 that it has been carefully restricted

582 to those causes which are manifestly proper

583 for the cognizance of the national judicature;

584 that in the partition of this authority

585 a very small portion of original jurisdiction

586 has been preserved to the Supreme Court,

587 and the rest consigned

588 to the subordinate tribunals;

589 that the Supreme Court will possess

590 an appellate jurisdiction, both as to law and fact,

591 in all the cases referred to them,

592 both subject to any EXCEPTIONS and REGULATIONS

593 which may be thought advisable;

594 that this appellate jurisdiction does, in no case,

595 ABOLISH the trial by jury;

596 and that an ordinary degree of prudence and integrity

597 in the national councils

598 will insure us solid advantages

599 from the establishment of the proposed judiciary,

600 without exposing us to any of the inconveniences

601 which have been predicted from that source.

602PUBLIUS.

6031 Article 3, sec. I.

6042 This power has been absurdly represented

605 as intended to abolish all the county courts

606 in the several States,

607 which are commonly called inferior courts.

608But the expressions of the Constitution are,

609 to constitute "tribunals

610 INFERIOR TO THE SUPREME COURT";

611 and the evident design of the provision

612 is to enable the institution of local courts,

613 subordinate to the Supreme,

614 either in States or larger districts.

615It is ridiculous to imagine

616 that county courts were in contemplation.

6173 This word is composed of JUS and DICTIO,

618 juris dictio or a speaking and pronouncing of the law.

6194 I hold that the States will have concurrent jurisdiction

620 with the subordinate federal judicatories,

621 in many cases of federal cognizance,

622 as will be explained in my next paper.