The Judiciary Continued



From McLEAN’s Edition, New York.



HAMILTON





To the People of the State of New York:



The erection of a new government, whatever care or wisdom may

distinguish the work, cannot fail to originate questions of intricacy

and nicety; and these may, in a particular manner, be expected to flow

from the establishment of a constitution founded upon the total or

partial incorporation of a number of distinct sovereignties. ’T is time

only that can mature and perfect so compound a system, can liquidate

the meaning of all the parts, and can adjust them to each other in a

harmonious and consistent WHOLE.



Such questions, accordingly, have arisen upon the plan proposed by the

convention, and particularly concerning the judiciary department. The

principal of these respect the situation of the State courts in regard

to those causes which are to be submitted to federal jurisdiction. Is

this to be exclusive, or are those courts to possess a concurrent

jurisdiction? If the latter, in what relation will they stand to the

national tribunals? These are inquiries which we meet with in the

mouths of men of sense, and which are certainly entitled to attention.



The principles established in a former paper[1] teach us that the

States will retain all PRE-EXISTING authorities which may not be

exclusively delegated to the federal head; and that this exclusive

delegation can only exist in one of three cases: where an exclusive

authority is, in express terms, granted to the Union; or where a

particular authority is granted to the Union, and the exercise of a

like authority is prohibited to the States; or where an authority is

granted to the Union, with which a similar authority in the States

would be utterly incompatible. Though these principles may not apply

with the same force to the judiciary as to the legislative power, yet I

am inclined to think that they are, in the main, just with respect to

the former, as well as the latter. And under this impression, I shall

lay it down as a rule, that the State courts will RETAIN the

jurisdiction they now have, unless it appears to be taken away in one

of the enumerated modes.



The only thing in the proposed Constitution, which wears the appearance

of confining the causes of federal cognizance to the federal courts, is

contained in this passage: “The JUDICIAL POWER of the United States

SHALL BE VESTED in one Supreme Court, and in SUCH inferior courts as

the Congress shall from time to time ordain and establish.” This might

either be construed to signify, that the supreme and subordinate courts

of the Union should alone have the power of deciding those causes to

which their authority is to extend; or simply to denote, that the

organs of the national judiciary should be one Supreme Court, and as

many subordinate courts as Congress should think proper to appoint; or

in other words, that the United States should exercise the judicial

power with which they are to be invested, through one supreme tribunal,

and a certain number of inferior ones, to be instituted by them. The

first excludes, the last admits, the concurrent jurisdiction of the

State tribunals; and as the first would amount to an alienation of

State power by implication, the last appears to me the most natural and

the most defensible construction.



But this doctrine of concurrent jurisdiction is only clearly applicable

to those descriptions of causes of which the State courts have previous

cognizance. It is not equally evident in relation to cases which may

grow out of, and be PECULIAR to, the Constitution to be established;

for not to allow the State courts a right of jurisdiction in such

cases, can hardly be considered as the abridgment of a pre-existing

authority. I mean not therefore to contend that the United States, in

the course of legislation upon the objects intrusted to their

direction, may not commit the decision of causes arising upon a

particular regulation to the federal courts solely, if such a measure

should be deemed expedient; but I hold that the State courts will be

divested of no part of their primitive jurisdiction, further than may

relate to an appeal; and I am even of opinion that in every case in

which they were not expressly excluded by the future acts of the

national legislature, they will of course take cognizance of the causes

to which those acts may give birth. This I infer from the nature of

judiciary power, and from the general genius of the system. The

judiciary power of every government looks beyond its own local or

municipal laws, and in civil cases lays hold of all subjects of

litigation between parties within its jurisdiction, though the causes

of dispute are relative to the laws of the most distant part of the

globe. Those of Japan, not less than of New York, may furnish the

objects of legal discussion to our courts. When in addition to this we

consider the State governments and the national governments, as they

truly are, in the light of kindred systems, and as parts of ONE WHOLE,

the inference seems to be conclusive, that the State courts would have

a concurrent jurisdiction in all cases arising under the laws of the

Union, where it was not expressly prohibited.



Here another question occurs: What relation would subsist between the

national and State courts in these instances of concurrent

jurisdiction? I answer, that an appeal would certainly lie from the

latter, to the Supreme Court of the United States. The Constitution in

direct terms gives an appellate jurisdiction to the Supreme Court in

all the enumerated cases of federal cognizance in which it is not to

have an original one, without a single expression to confine its

operation to the inferior federal courts. The objects of appeal, not

the tribunals from which it is to be made, are alone contemplated. From

this circumstance, and from the reason of the thing, it ought to be

construed to extend to the State tribunals. Either this must be the

case, or the local courts must be excluded from a concurrent

jurisdiction in matters of national concern, else the judiciary

authority of the Union may be eluded at the pleasure of every plaintiff

or prosecutor. Neither of these consequences ought, without evident

necessity, to be involved; the latter would be entirely inadmissible,

as it would defeat some of the most important and avowed purposes of

the proposed government, and would essentially embarrass its measures.

Nor do I perceive any foundation for such a supposition. Agreeably to

the remark already made, the national and State systems are to be

regarded as ONE WHOLE. The courts of the latter will of course be

natural auxiliaries to the execution of the laws of the Union, and an

appeal from them will as naturally lie to that tribunal which is

destined to unite and assimilate the principles of national justice and

the rules of national decisions. The evident aim of the plan of the

convention is, that all the causes of the specified classes shall, for

weighty public reasons, receive their original or final determination

in the courts of the Union. To confine, therefore, the general

expressions giving appellate jurisdiction to the Supreme Court, to

appeals from the subordinate federal courts, instead of allowing their

extension to the State courts, would be to abridge the latitude of the

terms, in subversion of the intent, contrary to every sound rule of

interpretation.



But could an appeal be made to lie from the State courts to the

subordinate federal judicatories? This is another of the questions

which have been raised, and of greater difficulty than the former. The

following considerations countenance the affirmative. The plan of the

convention, in the first place, authorizes the national legislature “to

constitute tribunals inferior to the Supreme Court.”[2] It declares, in

the next place, that “the JUDICIAL POWER of the United States SHALL BE

VESTED in one Supreme Court, and in such inferior courts as Congress

shall ordain and establish”; and it then proceeds to enumerate the

cases to which this judicial power shall extend. It afterwards divides

the jurisdiction of the Supreme Court into original and appellate, but

gives no definition of that of the subordinate courts. The only

outlines described for them, are that they shall be “inferior to the

Supreme Court,” and that they shall not exceed the specified limits of

the federal judiciary. Whether their authority shall be original or

appellate, or both, is not declared. All this seems to be left to the

discretion of the legislature. And this being the case, I perceive at

present no impediment to the establishment of an appeal from the State

courts to the subordinate national tribunals; and many advantages

attending the power of doing it may be imagined. It would diminish the

motives to the multiplication of federal courts, and would admit of

arrangements calculated to contract the appellate jurisdiction of the

Supreme Court. The State tribunals may then be left with a more entire

charge of federal causes; and appeals, in most cases in which they may

be deemed proper, instead of being carried to the Supreme Court, may be

made to lie from the State courts to district courts of the Union.



PUBLIUS.



 [1] No. 32.



 [2] Section 8, Article 1.









THE FEDERALIST.