It is intended to enable the National Government to in-
stitute or authorize, in each State or district of the
* This power has been absurdly evident design of the provision is,
represented as intended to abolish to enable the institution of local
all the County Courts in the several Courts, subordinate to the Supreme,
States, which are commonly called either in States or larger districts.
Inferior Courts. But the expres- It is ridiculous to imagine that
sions of the Constitution are, to con- County Courts were in contempla-
stitute "tribunals infeuiok to tion.— PuWh(S.
"the Supkeme Court ; " and the
The Fcederalist. 565
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 sub-
stance of the power in question may still be regarded as
a necessary part of the plan, if it were only to em-
power the National Legislature to commit to them the
cognizance of causes arising out of the National Con-
stitution. 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 preva-
lency 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 subor-
dinate 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,
566 The FoBderalist.
I should consider everything calculated to give, in prac-
tice, an unrestrained course to appeals, as a source of
public and private inconvenience.
I am not sure, but that it will be found highly expe-
dient and useful, to divide the United States into four,
or five, or half a dozen districts ; and to institute a
Foederal 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 cu'cuits for the trial of causes
in the several parts of the respective districts. Justice
through them may be administered with ease and de-
spatch ; and appeals may be safely circumscribed within
a narrow compass. This plan appears to me at pres-
ent 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 ex-
tent in which it is to be found in the proposed Constitu-
tion.
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 ju-
risdiction, only " in cases affecting Ambassadors, other
" public Ministers, and Consuls, and those in w^hich a
" State shall be a party." Public Ministers of every class
are the immediate representatives o£ 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 Foederalist. 567
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 imme-
diate 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 sug-
gested that an assignment of the public securities of one
State to the citizens of another would enable them to
prosecute that State in the Foederal 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 Conven-
tion, it will remain with the States, and the danger inti-
mated must be merely ideal. The circumstances which
are necessary to produce an alienation of State sover-
eignty, were discussed in considering the Article of tax-
ation, 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 obliga-
tions 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 pm-pose would it be to
568 The Faderalist.
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 con-
tracting State ; and to ascribe to the Fcederal Courts, by
mere implication, and in destruction of a preexisting
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
Foederal cognizance, the original jurisdiction would ap-
pertain to the inferior tribunals ; and the Supreme Court
would have nothing more than an appellate jurisdiction,
" with such exceptions, and under such reg'ulations, 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 con-
sider 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, Probates, and Chancery. A
technical sense has been affixed to the term " appellate,"
which, in our law parlance, is commonly used in refer-
ence to ai:>peals 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 ap-
peal from one jury to another, is familiar both in lan-
guage 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
The Foederalist. 569
shows the impropriety of a technical interpretation de-
rived 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 pro-
ceedings 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 de-
pend on the latter,) and may be with or without the aid
of a jury, as may be judged advisable. If, therefore, the
reexamination of a fact once determined by a jury,-
should in any case be admitted under the proposed Con-
stitution, it may be so regulated as to be done by a sec-
ond 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 reexamination 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 con-
cerning the fact, but it takes cognizance of it as it ap-
pears upon the record, and pronounces the law arising
upon it.* 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 jurisdic-
tion of both fact and law; and accordingly when
the former is agreed in the pleadings, they have no re-
course 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 reexamination in the Supreme Court
of facts decided by jmies in the inferior Courts.
* This word is composed of jus ing or prououncing of the law. —
and TiiCTio, juris dictio, or a speak- Publius.
570 The Faederalist.
The following train of ideas may well be imagined to
have influenced the Convention, in relation to this par-
ticular provision. The appellate jurisdiction of the Su-
preme Court (it may have been argued) will extend to
causes detei;minable 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 reexamination 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 neces-
sary, 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 ; * 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
inconveniences, it will be safest to declare generally,
that the Supreme Court shall possess appellate jurisdic-
tion, 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 un-
true. The Legislature of the United States would cer-
tainly have full power to provide, that in appeals to the
Supreme Court there should be no reexamination of facts,
* I hold that the States will have in many cases of FcEcIeral cogni-
concurrent jurisdiction with the zance, as will be explained in my
subordinate Fcederal judicatories, next paper. — Publius,
The Fcederalist. 571
where they had been tried in the original causes by
juries. This would certainly be an authorized excep«
tion ; 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 mani-
festly proper for the cognizance of the National Judica-
ture ; that in the partition of this authority, a very small
portion of original jurisdiction has been reserved to the
Supreme Court, and the rest consigned to the subordinate
tribunals; that the Supreme Court will possess an appel-
late jurisdiction both as to law and fact, in all the cases
referred to them, but subject to any exceptions and regu-
lations which may be thought advisable ; that this ap-
pellate jurisdiction does, in no case, abolish the trial by
jury ; and that an ordinary degree of prudence and in-
tegrity in the National Councils, will insure us solid ad-
vantages from the establishment of the proposed Judici-
ary, without exposing us to any of the inconveniences
which have been predicted from that source.
PUBLIUS.
\_From M'Lean's Edition, New York, M.DCC.LXXXVIIL]
[THE FCEDERALIST.] No. LXXXIL
[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 intricjicy and nicety; and these
572 The Foederalist.
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. 'Tis time only that can mature and per-
fect 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 con-
cerning 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 Foederal
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 at-
tention.
The principles established in a former paper* teach
us that the States will retain ail preexisting authorities
which may not be exclusively delegated to the Foederal
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 par-
ticular authority is granted to the Union, and the exer-
cise 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 in-
compatible. Though these principles may not apply
with the same force to the Judiciary, as to the Legisla-
tive 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 jurisdic-
tion they now have, unless it appears to be taken away
in one of the enumerated modes.
* No. XXXI. — Puhlius.
The Foederalist. 573
The only thing in the proposed Constitution, which
wears the appearance of confining the causes of Foederal
cognizance to the Foederal Courts, is contained is this
passage : — " The Judicial power of the United States
" shall be vested in one Supreme Court, and in such in-
" ferior 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 Judi-
ciary should be one Supreme Court, and as many sub-
ordinate Courts as Congress should think proper to ap-
point ; 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 jurisdic-
tion 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 preexisting 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 Foederal
Courts, solely, if such a measure should be deemed ex-
pedient; but I hold that the State Courts will be di-
574 The Foederalist.
vested of no part of their primitive jurisdiction, further
than may relate to an appeal ; and I am e.ven 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 Govern-
ment looks beyond its own local or municipal laws, and
in civil cases lays hold of all subjects of litigation be-
tween 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 conclu-
sive, that the State Courts would have a concurrent juris-
diction, in all cases arising under the laws of the Union,
where it was not expressly prohibited.
Here another question occurs : What relation w^ould
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 Su-
preme Court of the United States. The Constitution
in direct terms gives an appellate jurisdiction to the
Supreme Court in all the enumerated cases of Fcederal
cognizance, in which it is not to have an original one,
without a single expression to confine its operation to
the inferior Foederal 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 concm-rent
The Faderalist. ^Ib
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. Agree-
ably 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 exe-
cution 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, re-
ceive their orig-inal or final determination in the Courts
of the Union. To confine, therefore, the general expres-
sions giving appellate jurisdiction to the Supreme
Court, to appeals from the subordinate Foederal Courts,
instead of allowing their extension to the State Courts,
would be to abridge the latitude of the terms, in subver-
sion of the intent, contrary to every sound rule of in-
terpretation.
But could an appeal be made to lie from the State
Courts to the subordinate Fcederal judicatories ? This is
another of the questions which have been raised, and of
greater difficulty than the former. The following con-
siderations countenance the affirmative. The plan of
the Convention, in the first jilace, authorizes the Nation-
al Legislature " to constitute tribunals inferior to the
*' Supreme Court." * It declares, in the next place, that
" the Judicial power of the United States shall be vestea
* Sec. 8th, Art. 1st. — Publius.
576 The Foederalist.
"in one Supreme Court, and in such inferior Courts as
" Congress shall ordain and establish ; " and it then pro-
ceeds 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 Foederal 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 Foederal Courts, and
would admit of ai-rangements calculated to contract the
appellate jurisdiction of the Supreme Court. The State
tribunals may then be left with a more entire charge
of Foederal 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.
IFrom M'Lean's Edition, New York, M.DCC.LXXXVni.]
[THE FCEDERALIST.] No. LXXXIII.
[To THE People of the State of New York :]
THE objection to the plan of the Convention, which
has met with most success in this State, and per-
haps in several of the other States, is that relative to the
Tlie FosderalisL 577
vxint of a constitutional provision for the trial by jury in
civil cases. The disingenuous form in which this objec-
tion is usually stated, has been repeatedly adverted to
and exposed; but continues to be pursued in all the con-
versations and writings of the opponents of the plan.
The mere silence of the Constitution in regard to civil
causes, is represented as an abolition of the trial by jury ;
and the declamations to which it has afforded a pretext
are artfully calculated to induce a persuasion, that this
pretended abolition is complete and universal ; extending
not only to every species of civil, but even to criminal
causes. To argue with respect to the latter, would, how-
ever, be as vain and fruitless, as to attempt the serious
proof of the existence of matter, or to demonstrate any
of tho:5e propositions, which, by their own internal evi-