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The Powers of the Judiciary
To the People of the State of New York:
It seems scarcely to admit of controversy, that the judicary
authority of the Union ought to extend to these several descriptions
of cases: 1st, to all those which arise out of the laws of the
United States, passed in pursuance of their just and constitutional
powers of legislation; 2d, to all those which concern the execution
of the provisions expressly contained in the articles of Union; 3d,
to all those in which the United States are a party; 4th, to all
those which involve the peace of the confederacy, whether they
relate to the intercourse between the United States and foreign
nations, or to that between the States themselves; 5th, to all
those which originate on the high seas, and are of admiralty or
maritime jurisdiction; and, lastly, to all those in which the State
tribunals cannot be supposed to be impartial and unbiased.
The first point depends upon this obvious consideration, that
there ought always to be a constitutional method of giving efficacy
to constitutional provisions. What, for instance, would avail
restrictions on the authority of the State legislatures, without
some constitutional mode of enforcing the observance of them? The
States, by the plan of the convention, are prohibited from doing a
variety of things, some of which are incompatible with the interests
of the Union, and others with the principles of good government.
The imposition of duties on imported articles, and the emission of
paper money, are specimens of each kind. No man of sense will
believe, that such prohibitions would be scrupulously regarded,
without some effectual power in the government to restrain or
correct the infractions of them. This power must either be a direct
negative on the State laws, or an authority in the federal courts to
overrule such as might be in manifest contravention of the articles
of Union. There is no third course that I can imagine. The latter
appears to have been thought by the convention preferable to the
former, and, I presume, will be most agreeable to the States.
As to the second point, it is impossible, by any argument or
comment, to make it clearer than it is in itself. If there are such
things as political axioms, the propriety of the judicial power of a
government being coextensive with its legislative, may be ranked
among the number. The mere necessity of uniformity in the
interpretation of the national laws, decides the question. Thirteen
independent courts of final jurisdiction over the same causes,
arising upon the same laws, is a hydra in government, from which
nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point.
Controversies between the nation and its members or citizens, can
only be properly referred to the national tribunals. Any other plan
would be contrary to reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace
of the whole ought not to be left at the disposal of a part. The
Union will undoubtedly be answerable to foreign powers for the
conduct of its members. And the responsibility for an injury ought
ever to be accompanied with the faculty of preventing it. As the
denial or perversion of justice by the sentences of courts, as well
as in any other manner, is with reason classed among the just causes
of war, it will follow that the federal judiciary ought to have
cognizance of all causes in which the citizens of other countries
are concerned. This is not less essential to the preservation of
the public faith, than to the security of the public tranquillity.
A distinction may perhaps be imagined between cases arising upon
treaties and the laws of nations and those which may stand merely on
the footing of the municipal law. The former kind may be supposed
proper for the federal jurisdiction, the latter for that of the
States. But it is at least problematical, whether an unjust
sentence against a foreigner, where the subject of controversy was
wholly relative to the lex loci, would not, if unredressed, be
an aggression upon his sovereign, as well as one which violated the
stipulations of a treaty or the general law of nations. And a still
greater objection to the distinction would result from the immense
difficulty, if not impossibility, of a practical discrimination
between the cases of one complexion and those of the other. So
great a proportion of the cases in which foreigners are parties,
involve national questions, that it is by far most safe and most
expedient to refer all those in which they are concerned to the
national tribunals.
The power of determining causes between two States, between one
State and the citizens of another, and between the citizens of
different States, is perhaps not less essential to the peace of the
Union than that which has been just examined. History gives us a
horrid picture of the dissensions and private wars which distracted
and desolated Germany prior to the institution of the Imperial
Chamber by Maximilian, towards the close of the fifteenth century;
and informs us, at the same time, of the vast influence of that
institution in appeasing the disorders and establishing the
tranquillity of the empire. This was a court invested with
authority to decide finally all differences among the members of the
Germanic body.
A method of terminating territorial disputes between the States,
under the authority of the federal head, was not unattended to, even
in the imperfect system by which they have been hitherto held
together. But there are many other sources, besides interfering
claims of boundary, from which bickerings and animosities may spring
up among the members of the Union. To some of these we have been
witnesses in the course of our past experience. It will readily be
conjectured that I allude to the fraudulent laws which have been
passed in too many of the States. And though the proposed
Constitution establishes particular guards against the repetition of
those instances which have heretofore made their appearance, yet it
is warrantable to apprehend that the spirit which produced them will
assume new shapes, that could not be foreseen nor specifically
provided against. Whatever practices may have a tendency to disturb
the harmony between the States, are proper objects of federal
superintendence and control.
It may be esteemed the basis of the Union, that ``the citizens
of each State shall be entitled to all the privileges and immunities
of citizens of the several States.'' And if it be a just principle
that every government ought to possess the means of executing its
own provisions by its own authority, it will follow, that in order
to the inviolable maintenance of that equality of privileges and
immunities to which the citizens of the Union will be entitled, the
national judiciary ought to preside in all cases in which one State
or its citizens are opposed to another State or its citizens. To
secure the full effect of so fundamental a provision against all
evasion and subterfuge, it is necessary that its construction should
be committed to that tribunal which, having no local attachments,
will be likely to be impartial between the different States and
their citizens, and which, owing its official existence to the
Union, will never be likely to feel any bias inauspicious to the
principles on which it is founded.
The fifth point will demand little animadversion. The most
bigoted idolizers of State authority have not thus far shown a
disposition to deny the national judiciary the cognizances of
maritime causes. These so generally depend on the laws of nations,
and so commonly affect the rights of foreigners, that they fall
within the considerations which are relative to the public peace.
The most important part of them are, by the present Confederation,
submitted to federal jurisdiction.
The reasonableness of the agency of the national courts in cases
in which the State tribunals cannot be supposed to be impartial,
speaks for itself. No man ought certainly to be a judge in his own
cause, or in any cause in respect to which he has the least interest
or bias. This principle has no inconsiderable weight in designating
the federal courts as the proper tribunals for the determination of
controversies between different States and their citizens. And it
ought to have the same operation in regard to some cases between
citizens of the same State. Claims to land under grants of
different States, founded upon adverse pretensions of boundary, are
of this description. The courts of neither of the granting States
could be expected to be unbiased. The laws may have even prejudged
the question, and tied the courts down to decisions in favor of the
grants of the State to which they belonged. And even where this had
not been done, it would be natural that the judges, as men, should
feel a strong predilection to the claims of their own government.
Having thus laid down and discussed the principles which ought
to regulate the constitution of the federal judiciary, we will
proceed to test, by these principles, the particular powers of
which, according to the plan of the convention, it is to be composed.
It is to comprehend ``all cases in law and equity arising under
the Constitution, the laws of the United States, and treaties made,
or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers, and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to
which the United States shall be a party; to controversies between
two or more States; between a State and citizens of another State;
between citizens of different States; between citizens of the same
State claiming lands and grants of different States; and between a
State or the citizens thereof and foreign states, citizens, and
subjects.'' This constitutes the entire mass of the judicial
authority of the Union. Let us now review it in detail. It is,
then, to extend:
First. To all cases in law and equity, arising under the
constitution and the laws of the United States. This corresponds
with the two first classes of causes, which have been enumerated, as
proper for the jurisdiction of the United States. It has been
asked, what is meant by ``cases arising under the Constitution,'' in
contradiction from those ``arising under the laws of the United
States''? The difference has been already explained. All the
restrictions upon the authority of the State legislatures furnish
examples of it. They are not, for instance, to emit paper money;
but the interdiction results from the Constitution, and will have
no connection with any law of the United States. Should paper
money, notwithstanding, be emited, the controversies concerning it
would be cases arising under the Constitution and not the laws of
the United States, in the ordinary signification of the terms. This
may serve as a sample of the whole.
It has also been asked, what need of the word ``equity''. What
equitable causes can grow out of the Constitution and laws of the
United States? There is hardly a subject of litigation between
individuals, which may not involve those ingredients of fraud,
accident, trust, or hardship, which would render the matter an
object of equitable rather than of legal jurisdiction, as the
distinction is known and established in several of the States. It
is the peculiar province, for instance, of a court of equity to
relieve against what are called hard bargains: these are contracts
in which, though there may have been no direct fraud or deceit,
sufficient to invalidate them in a court of law, yet there may have
been some undue and unconscionable advantage taken of the
necessities or misfortunes of one of the parties, which a court of
equity would not tolerate. In such cases, where foreigners were
concerned on either side, it would be impossible for the federal
judicatories to do justice without an equitable as well as a legal
jurisdiction. Agreements to convey lands claimed under the grants
of different States, may afford another example of the necessity of
an equitable jurisdiction in the federal courts. This reasoning may
not be so palpable in those States where the formal and technical
distinction between law and equity is not maintained, as in this
State, where it is exemplified by every day's practice.
The judiciary authority of the Union is to extend:
From this review of the particular powers of the federal
judiciary, as marked out in the Constitution, it appears that they
are all conformable to the principles which ought to have governed
the structure of that department, and which were necessary to the
perfection of the system. If some partial inconviences should
appear to be connected with the incorporation of any of them into
the plan, it ought to be recollected that the national legislature
will have ample authority to make such exceptions, and to prescribe
such regulations as will be calculated to obviate or remove these
inconveniences. The possibility of particular mischiefs can never
be viewed, by a wellinformed mind, as a solid objection to a general
principle, which is calculated to avoid general mischiefs and to
obtain general advantages.
Publius.
Hamilton From McLean's Edition, New York.
To judge with accuracy of the proper extent of the federal
judicature, it will be necessary to consider, in the first place,
what are its proper objects.
Second. To treaties made, or which shall be made, under the
authority of the United States, and to all cases affecting
ambassadors, other public ministers, and consuls. These belong to
the fourth class of the enumerated cases, as they have an evident
connection with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction.
These form, altogether, the fifth of the enumerated classes of
causes proper for the cognizance of the national courts.
Fourth. To controversies to which the United States shall be
a party. These constitute the third of those classes.
Fifth. To controversies between two or more States; between
a State and citizens of another State; between citizens of
different States. These belong to the fourth of those classes, and
partake, in some measure, of the nature of the last.
Sixth. To cases between the citizens of the same State,
claiming lands under grants of different states. These fall within
the last class, and are the only instances in which the proposed
constitution directly contemplates the cognizance of disputes
between the citizens of the same state.
Seventh. To cases between a State and the citizens thereof,
and foreign States, citizens, or subjects. These have been already
explained to belong to the fourth of the enumerated classes, and
have been shown to be, in a peculiar manner, the proper subjects of
the national judicature.