The Powers of the Judiciary
From McLEAN's Edition, New York.
Wednesday, May 28, 1788


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 judicary 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

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

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

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 inconviences 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.