The Federalist Papers
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.