tained, 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 or other public ministers and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connexion 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 the 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 inconveniencies 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 inconveniencies. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a principle which is calculated to avoid general mischiefs, and to obtain general advantages.

PUBLIUS.

NUMBER LXXXI.

BY MR. HAMILTON

A further view of the judicial department, in relation to the distribution of its authority.

Let us now return to the partition of the judiciary authority between different courts, and their relations to each other.

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may

"The judicial power of the United States is to be vested in 66 one supreme court, and in such inferior courts as the congress from time to time ordain and establish."* 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, are advocates, by implication at least, for 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 supreme "court of the United States, which is to be a separate and inde"pendent 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 what"ever 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

66

Article 3. Sect. 1.

"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 re"spective courts. But the errors and usurpations of the supreme "court of the United States, will be uncontrollable and remedi"less." This, upon examination, will be found to be altogether made up of false reasoning upon misconceived facts.

In the first place, there is not a syllable in the plan, which directly empowers the national courts to construe the laws ac cording 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 in that of this state. To insist upon this point, the authors of the objection must renounce the meaning they have laboured 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 to influence their construction: 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 that of judges. Nor is this all: every reason which recommends the tenure of good behaviour 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 atanding; 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 the 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 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 NewHampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia ; and the preference which has been given to these 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 propsed constitution, more than in either of them, by which it is forbidden. In the former, as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle.

tained, 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 or other public ministers and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connexion 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 the 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 inconveniencies 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 inconveniencies. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a principle which is calculated to avoid general mischiefs, and to obtain general advantages.

PUBLIUS.