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The Judiciary Continued, and the Distribution of the Judicial
Authority
To the People of the State of New York:
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 authorize, 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 mode[4]; 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.
Notes:
Hamilton From McLean's Edition, New York.
LET US now return to the partition of the judiciary authority
between different courts, and their relations to each other,
``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]