1787 Federalist 82 · Founding Made Plain

11787 Federalist No. 82

2The Judiciary Continued

3From McLEAN's Edition, New York.

4HAMILTON

5To the People of the State of New York:

6THE erection of a new government,

7 whatever care or wisdom may distinguish the work,

8 cannot fail to originate questions

9 of intricacy and nicety;

10 and these may, in a particular manner,

11 be expected to flow from the establishment

12 of a constitution founded upon

13 the total or partial incorporation

14 of a number of distinct sovereignties.

15'T is time only that can mature and perfect

16 so compound a system,

17 can liquidate the meaning of all the parts,

18 and can adjust them to each other

19 in a harmonious and consistent WHOLE.

20Such questions, accordingly,

21 have arisen upon the plan proposed by the convention,

22 and particularly concerning the judiciary department.

23The principal of these respect the situation

24 of the State courts

25 in regard to those causes

26 which are to be submitted to federal jurisdiction.

27Is this to be exclusive,

28 or are those courts to possess

29 a concurrent jurisdiction?

30If the latter,

31 in what relation will they stand

32 to the national tribunals?

33These are inquiries which we meet with

34 in the mouths of men of sense,

35 and which are certainly entitled to attention.

36The principles established in a former paper 1

37 teach us that the States will retain

38 all PRE-EXISTING authorities

39 which may not be exclusively delegated

40 to the federal head;

41 and that this exclusive delegation

42 can only exist in one of three cases:

43 where an exclusive authority is, in express terms,

44 granted to the Union;

45 or where a particular authority

46 is granted to the Union,

47 and the exercise of a like authority

48 is prohibited to the States;

49 or where an authority is granted to the Union,

50 with which a similar authority in the States

51 would be utterly incompatible.

52Though these principles may not apply

53 with the same force to the judiciary

54 as to the legislative power,

55 yet I am inclined to think that they are, in the main,

56 just with respect to the former,

57 as well as the latter.

58And under this impression, I shall lay it down as a rule,

59 that the State courts will RETAIN

60 the jurisdiction they now have,

61 unless it appears to be taken away

62 in one of the enumerated modes.

63The only thing in the proposed Constitution,

64 which wears the appearance of confining

65 the causes of federal cognizance

66 to the federal courts,

67 is contained in this passage:

68 "The JUDICIAL POWER of the United States

69 SHALL BE VESTED in one Supreme Court,

70 and in SUCH inferior courts

71 as the Congress shall from time to time

72 ordain and establish."

73This might either be construed to signify,

74 that the supreme and subordinate courts of the Union

75 should alone have the power

76 of deciding those causes

77 to which their authority is to extend;

78 or simply to denote,

79 that the organs of the national judiciary

80 should be one Supreme Court,

81 and as many subordinate courts

82 as Congress should think proper to appoint;

83 or in other words,

84 that the United States should exercise

85 the judicial power with which they

86 are to be invested,

87 through one supreme tribunal,

88 and a certain number of inferior ones,

89 to be instituted by them.

90The first excludes, the last admits,

91 the concurrent jurisdiction of the State tribunals;

92 and as the first would amount

93 to an alienation of State power by implication,

94 the last appears to me the most natural

95 and the most defensible construction.

96But this doctrine of concurrent jurisdiction

97 is only clearly applicable

98 to those descriptions of causes

99 of which the State courts have previous cognizance.

100It is not equally evident in relation to cases

101 which may grow out of, and be PECULIAR to,

102 the Constitution to be established;

103 for not to allow the State courts

104 a right of jurisdiction

105 in such cases,

106 can hardly be considered as the abridgment

107 of a pre-existing authority.

108I mean not therefore to contend

109 that the United States,

110 in the course of legislation

111 upon the objects intrusted to their direction,

112 may not commit the decision of causes

113 arising upon a particular regulation

114 to the federal courts solely,

115 if such a measure should be deemed expedient;

116 but I hold that the State courts

117 will be divested of no part

118 of their primitive jurisdiction,

119 further than may relate to an appeal;

120 and I am even of opinion

121 that in every case in which they were not

122 expressly excluded

123 by the future acts of the national legislature,

124 they will of course take cognizance

125 of the causes to which those acts may give birth.

126This I infer from the nature of judiciary power,

127 and from the general genius of the system.

128The judiciary power of every government

129 looks beyond its own local or municipal laws,

130 and in civil cases lays hold of all subjects

131 of litigation

132 between parties within its jurisdiction,

133 though the causes of dispute

134 are relative to the laws

135 of the most distant part of the globe.

136Those of Japan, not less than of New York,

137 may furnish the objects of legal discussion

138 to our courts.

139When in addition to this we consider

140 the State governments and the national governments,

141 as they truly are,

142 in the light of kindred systems,

143 and as parts of ONE WHOLE,

144 the inference seems to be conclusive,

145 that the State courts would have

146 a concurrent jurisdiction

147 in all cases arising under the laws of the Union,

148 where it was not expressly prohibited.

149Here another question occurs:

150What relation would subsist

151 between the national and State courts

152 in these instances of concurrent jurisdiction?

153I answer, that an appeal would certainly lie

154 from the latter,

155 to the Supreme Court of the United States.

156The Constitution in direct terms

157 gives an appellate jurisdiction to the Supreme Court

158 in all the enumerated cases of federal cognizance

159 in which it is not to have an original one,

160 without a single expression

161 to confine its operation

162 to the inferior federal courts.

163The objects of appeal,

164 not the tribunals from which it is to be made,

165 are alone contemplated.

166From this circumstance, and from the reason of the thing,

167 it ought to be construed to extend

168 to the State tribunals.

169Either this must be the case,

170 or the local courts must be excluded

171 from a concurrent jurisdiction

172 in matters of national concern,

173 else the judiciary authority of the Union

174 may be eluded at the pleasure

175 of every plaintiff or prosecutor.

176Neither of these consequences ought,

177 without evident necessity, to be involved;

178 the latter would be entirely inadmissible,

179 as it would defeat some of the most important

180 and avowed purposes of the proposed government,

181 and would essentially embarrass its measures.

182Nor do I perceive any foundation for such a supposition.

183Agreeably to the remark already made,

184 the national and State systems

185 are to be regarded as ONE WHOLE.

186The courts of the latter will of course

187 be natural auxiliaries

188 to the execution of the laws of the Union,

189 and an appeal from them will as naturally lie

190 to that tribunal which is destined

191 to unite and assimilate the principles

192 of national justice

193 and the rules of national decisions.

194The evident aim of the plan of the convention is,

195 that all the causes of the specified classes shall,

196 for weighty public reasons,

197 receive their original or final determination

198 in the courts of the Union.

199To confine, therefore, the general expressions

200 giving appellate jurisdiction to the Supreme Court,

201 to appeals from the subordinate federal courts,

202 instead of allowing their extension

203 to the State courts,

204 would be to abridge the latitude of the terms,

205 in subversion of the intent,

206 contrary to every sound rule of interpretation.

207But could an appeal be made to lie

208 from the State courts

209 to the subordinate federal judicatories?

210This is another of the questions which have been raised,

211 and of greater difficulty than the former.

212The following considerations countenance the affirmative.

213The plan of the convention, in the first place,

214 authorizes the national legislature

215 "to constitute tribunals inferior

216 to the Supreme Court." 2

217It declares, in the next place,

218 that "the JUDICIAL POWER of the United States

219 SHALL BE VESTED in one Supreme Court,

220 and in such inferior courts

221 as Congress shall ordain and establish";

222 and it then proceeds to enumerate the cases

223 to which this judicial power shall extend.

224It afterwards divides the jurisdiction of the Supreme Court

225 into original and appellate,

226 but gives no definition of that

227 of the subordinate courts.

228The only outlines described for them,

229 are that they shall be "inferior to the Supreme Court,"

230 and that they shall not exceed

231 the specified limits of the federal judiciary.

232Whether their authority shall be original or appellate,

233 or both, is not declared.

234All this seems to be left to the discretion

235 of the legislature.

236And this being the case,

237 I perceive at present no impediment

238 to the establishment of an appeal

239 from the State courts

240 to the subordinate national tribunals;

241 and many advantages attending the power of doing it

242 may be imagined.

243It would diminish the motives

244 to the multiplication of federal courts,

245 and would admit of arrangements calculated

246 to contract the appellate jurisdiction

247 of the Supreme Court.

248The State tribunals may then be left

249 with a more entire charge of federal causes;

250 and appeals, in most cases in which they may be deemed

251 proper, instead of being carried

252 to the Supreme Court,

253 may be made to lie from the State courts

254 to district courts of the Union.

255PUBLIUS.

2561 No. 31.

2572 Sec. 8th art. 1st.