FEDERALIST No. 80

The Powers of the Judiciary

From McLEAN's Edition, New York.

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 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; 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 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 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.