The Federalist Papers
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:
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.
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 inconveniences 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
FEDERALIST No. 81
The Judiciary Continued, and the Distribution of the Judicial Authority.
From McLEAN's Edition, New York. Wednesday, May 28, 1788.
HAMILTON
To the People of the State of 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)
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 judicial 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