Federalist Paper No. 80
The Powers of the Judiciary
From McLEAN's Edition, New York.
HAMILTON
To the People of the State of 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.
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.
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 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.
(Continue to Page 81)
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