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 judiciary
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; 2nd, to all those which concern the execution
of the provisions expressly contained in the articles of Union; 3rd,
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 an 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 pretentions 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
contradistinction 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 emitted, 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 mischief can never be
viewed, by a well-informed mind, as a solid objection to a general
principle, which is calculated to avoid general mischiefs and to
obtain general advantages.
Signed "PUBLIUS"
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