Posted on 02/07/2011 7:58:41 AM PST by Publius
On the same day that Melancton Smith made his second speech to New York’s ratifying convention at Poughkeepsie, Alexander Hamilton’s third essay on the Judiciary appeared in print.
1 To the People of the State of New York:
2 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.
3 It seems scarcely to admit of controversy that the judiciary authority of the Union ought to extend to these several descriptions of cases:
4 The first point depends upon this obvious consideration: that there ought always to be a constitutional method of giving efficacy to constitutional provisions.
5 What, for instance, would avail restrictions on the authority of the state legislatures without some constitutional mode of enforcing the observance of them?
6 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.
7 The imposition of duties on imported articles and the emission of paper money are specimens of each kind.
8 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.
9 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.
10 There is no third course that I can imagine.
11 The latter appears to have been thought by the Convention preferable to the former and, I presume, will be most agreeable to the states.
12 As to the second point, it is impossible by any argument or comment to make it clearer than it is in itself.
13 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.
14 The mere necessity of uniformity in the interpretation of the national laws decides the question.
15 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.
16 Still less need be said in regard to the third point.
17 Controversies between the nation and its members or citizens can only be properly referred to the national tribunals.
18 Any other plan would be contrary to reason, to precedent and to decorum.
19 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.
20 The Union will undoubtedly be answerable to foreign powers for the conduct of its members.
21 And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.
22 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.
23 This is not less essential to the preservation of the public faith than to the security of the public tranquillity.
24 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.
25 The former kind may be supposed proper for the federal jurisdiction, the latter for that of the states.
26 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.
27 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.
28 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.
29 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.
30 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.
31 This was a court invested with authority to decide finally all differences among the members of the Germanic body.
32 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.
33 But there are many other sources, besides interfering claims of boundary, from which bickering and animosities may spring up among the members of the Union.
34 To some of these we have been witnesses in the course of our past experience.
35 It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the states.
36 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.
37 Whatever practices may have a tendency to disturb the harmony between the states are proper objects of federal superintendence and control.
38 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.”
39 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.
40 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.
41 The fifth point will demand little animadversion.
42 The most bigoted idolizers of state authority have not thus far shown a disposition to deny the National Judiciary the cognizance of maritime causes.
43 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.
44 The most important part of them are, by the present Confederation, submitted to federal jurisdiction.
45 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.
46 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.
47 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.
48 And it ought to have the same operation in regard to some cases between citizens of the same state.
49 Claims to land under grants of different states founded upon adverse pretensions of boundary are of this description.
50 The courts of neither of the granting states could be expected to be unbiased.
51 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.
52 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.
53 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.
54 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.”
55 This constitutes the entire mass of the judicial authority of the Union.
56 Let us now review it in detail.
57 It is, then, to extend:
58 First: To all cases in law and equity, arising under the Constitution and the laws of the United States.
59 This corresponds with the two first classes of causes, which have been enumerated as proper for the jurisdiction of the United States.
60 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”?
61 The difference has been already explained.
62 All the restrictions upon the authority of the state legislatures furnish examples of it.
63 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.
64 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.
65 This may serve as a sample of the whole.
66 It has also been asked: what need of the word “equity”?
67 What equitable causes can grow out of the Constitution and laws of the United States?
68 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.
69 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.
70 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.
71 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.
72 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.
73 The judiciary authority of the Union is to extend:
74 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.
75 These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.
76 Third: To cases of admiralty and maritime jurisdiction.
77 These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.
78 Fourth: To controversies to which the United States shall be a party.
79 These constitute the third of those classes.
80 Fifth: To controversies between two or more states, between a state and citizens of another state, between citizens of different states.
81 These belong to the fourth of those classes and partake in some measure of the nature of the last.
82 Sixth: To cases between the citizens of the same state, claiming lands under grants of different states.
83 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.
84 Seventh: To cases between a state and the citizens thereof, and foreign states, citizens, or subjects.
85 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.
86 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.
87 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.
88 The possibility of particular mischiefs 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.
Hamilton’s Critique
Hamilton has returned to his consideration of Article III of the proposed Constitution in what will be a three-part treatise on the foundations of jurisprudence within the United States. It is a lawyer holding forth on legal theory; hence of all of the Federalist Papers these compose the toughest going for lay readers.
It also concludes Hamilton’s justification of the structures of government within the overall Constitution. It will become clearer as this series continues that he was presenting his closing arguments in this trial, and at its conclusion there will be two concluding Federalist Papers and then silence, their purpose having been fulfilled with the ratification of the Constitution.
Once again Hamilton makes his analytical plan clear at the outset. There are six subject areas that describe cases he considers properly rendered to the National Judiciary, several of which are matters more of definition than controversy (3).
The first class of cases considered “arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation,” and here there is at least the whiff of controversy, for these are the first acknowledgments that the National Judiciary will, as several of the anti-Federalists such as Brutus and Bryan have already pointed out, be a body superior to the high courts within the various states. Hamilton specifically justifies these cases as the ability to enforce “restrictions on the authority of the state legislatures” (5), and at 9 his formulation strikes the modern ear somewhat oddly.
9 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.
11 The latter appears to have been thought by the Convention preferable to the former and, I presume, will be most agreeable to the states.
To Hamilton, and apparently to his contemporary readers, this was a finely drawn distinction; in application over the succeeding two centuries it became a distinction with very little difference.
The second class of cases is more definitional. It is an argument for centralized judicial power in the interest of uniformity in national law, bolstered by the commonsense point that a government must be able to adjudicate where it can legislate (13).
The third class is definitional as well, inasmuch as it refers to disputes between citizens and the federal government under matters of federal law. The complications arising from any attempt to adjudicate these within the differing state systems are so obvious that even the anti-Federalists did not care to dispute them.
The fourth class, however, is similar in tone but quite different in application, and here the anti-Federalists did find cause for objection. There are two parts: first, those cases in which the federal government must find itself the intermediary between states and a foreign power, where a common responsibility toward other nations must imply a common authority (21). That, however, carries an implication of what Brutus regarded as a clear breach of state sovereignty.
22 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.
There is, to be sure, valid reasoning behind this point, and even under the Articles of Confederation there were limits to the states’ abilities to proceed independently with foreign powers. Even so, this constituted a direct reach within the state court systems that Brutus, obviously an attorney himself, considered a blatant grab for power. Hamilton acknowledges the argument.
24 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.
25 The former kind may be supposed proper for the federal jurisdiction, the latter for that of the states.
Unfortunately that won’t do, says Hamilton. There are already difficulties with lex loci (26), a legal term meaning the determination of which locality’s laws pertain when the disputants are from two different localities with different legal codes. There are, as well, complexities arising from the difficulty in drawing a definitional line between the two categories named in 25 and 27. Hamilton falls back onto the argument of expediency.
28 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.
It is an argument hardly likely to mollify such critics as Brutus, who have interpreted this more bluntly as a bit of state sovereignty given up for convenience’ sake.
The second part of the fourth category of cases pertains to disputes between the states themselves, a potential minefield defused largely because such disputes had already arisen – boundary disputes between Vermont and New Hampshire for example, which had been referred to King George II and had no provision for judicial settlement within the Articles of Confederation. Hamilton’s characterization “essential to the peace of the union” (29) was no exaggeration: such disputes between states had already threatened on occasion to resort to force of arms. Nor need these be restricted to boundary disputes (33). Hamilton regards these to fall under broad principle.
37 Whatever practices may have a tendency to disturb the harmony between the states are proper objects of federal superintendence and control.
In context its meaning is obvious, but it is the sort of Hamiltonian throwaway comment that caused anti-Federalist eyebrows to raise. It is, in fact, a rather broad and potentially dangerous principle. Disputes between states, however, do demand a forum. Hamilton reminds the reader of the stability conferred onto a chaotic Holy Roman Empire by the inception of such a central court system known variously as the Imperial Chamber or Reichskammergericht.
31 This was a court invested with authority to decide finally all differences among the members of the Germanic body.
It was also a court notorious – although not entirely fairly so – for taking hundreds of years to close certain cases. Nevertheless, it was a forum preferable to the battlefield.
The fifth category of cases is perhaps the least controversial. Nevertheless, the contentious Hamilton simply cannot resist a gratuitous dig at his opponents.
42 The most bigoted idolizers of state authority have not thus far shown a disposition to deny the National Judiciary the cognizance of maritime causes.
The reader may be forgiven for wondering what might constitute a “bigoted idolizer of federal authority,” under the suspicion that Hamilton might find one in a nearby mirror. Nevertheless, the point is not under dispute; even under the Confederation such matters were federal (44).
The last of the six groups of cases involve those in which state courts may not be regarded as impartial, either because of cross jurisdiction or because they have had their hands tied by their respective state legislatures (51). Hamilton does not refer to any objection present to this matter, it being in his view a “reasonable” agency (45), a natural function for the federal courts.
Having established these categories of case and defended such as he considered under dispute, Hamilton now turns to classifying under the rubrics of these categories the sundry powers granted the Federal Judiciary. The reader enters a lawyer’s world, a world of precise definitions of terms such as “law” and “equity,” which serve to identify and place legal matters in their proper provinces.
It is apparent that the anti-Federalists have made their point to Hamilton regarding loss of state sovereignty, for one of these examples is worded in an unmistakably defensive manner.
82 Sixth: To cases between the citizens of the same state, claiming lands under grants of different states.
83 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.
Here Hamilton is specifying that the federal courts will not be so structured as to invade the established territory of the state courts. It is, however, an empty reassurance based on what he says next.
87 If some partial inconveniences should appear to be connected with the incorporation of any of them [the powers] 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.
What Hamilton is saying is that should the powers of the Federal Judiciary be found inconvenient, they may be trimmed by the Legislative branch. What is not said, but is implied, is what Brutus stated outright in his #11: that either the Legislative or the Judicial itself might just as easily and legally extend those powers.
Brutus #11-59 Every extension of the power of the General Legislature, as well as of the judicial powers, will increase the powers of the courts, and the dignity and importance of the judges will be in proportion to the extent and magnitude of the powers they exercise.
Brutus #11-71 When the courts will have a precedent before them of a court [in Great Britain] which extended its jurisdiction in opposition to an act of the Legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the Constitution expressly against it, and they are authorized to construe its meaning and are not under any control?
It is, in fact, one of those contingencies against which it is difficult to guard. In Hamilton’s estimation it is a potential “mischief” that does not weigh against the potential good sufficiently to dismiss the overall plan.
88 The possibility of particular mischiefs 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.
That, as Brutus might counter, is a matter of opinion, and not of the legal sort. But it is clear at least that Hamilton has considered these matters deeply and has come to the conclusion that the hazards do not outweigh the gains. How deeply he has considered it will appear in his next two papers.
Discussion Topics
Thanks!
Thanks for the ping; post(s). Another great thread/discussion. Thanks to all linkers/thinkers/researchers/educators/historians.
federalist/anti-federalist BUMP!
tyranny/liberty BUMP!
I subscribe to a Federalist Papers group on Facebook. I really enjoy seeing the correspondence and the deliberations involved in the US Constitution’s drafting. 36 Pages, 10 years. Not 2200 pages, 2 months as is now the case in our federal governments shameful presence nowadays.
I am all about restoring our founding fathers, which includes the Federalist Papers. I suggest reading the “5,000 Year Leap” by Cleon Skousen.
I have been trying to find the entire text of Federalist #81. Alexander Hamilton. All I can find is a summary. Do you have access to it?
I've been meaning to get my hands on a copy since I've heard so much about it. ONE of these days...
We’re posting Federalist #81 on Thursday morning.
The issues of taxation and paying for national defense etc, which was authorized but not funded, is contemplated in Federalist #21, another article authored by Alexander Hamilton.
Excellent!
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