The Judiciary Continued, and the Distribution of the Judicial
From McLEAN's Edition, New York.
Wednesday, May 28, 1788


To the People of the State of New York:

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

"The judicial power of the United States is" (by the plan of the
convention) "to be vested in one Supreme Court, and in such inferior
courts as the Congress may, from time to time, ordain and establish."[1]

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, advocate, by implication at least, 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 proposed Supreme Court of the
United States, which is to be a separate and independent 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 whatever 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 judical 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 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 respective courts. But the errors and usurpations of
the Supreme Court of the United States will be uncontrollable and
remediless." This, upon examination, will be found to be made up
altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under
consideration which directly empowers the national courts to construe
the laws according 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

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 that of the
State. To insist upon this point, the authors of the objection must
renounce the meaning they have labored 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 in
interpreting them; 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 the character of judges. Nor is this
all. Every reason which recommends the tenure of good behavior 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 standing; 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 their
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 of 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 New Hampshire, Massachusetts, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina, South Carolina, and
Georgia; and the preference which has been given to those 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 proposed Constitution, more than in either of them, by
which it is forbidden. In the former, as well as in the latter, the
impropriety of the thing, on the general principles of law and reason,
is the sole obstacle. A legislature, without exceeding its province,
cannot reverse a determination once made in a particular case; though it
may prescribe a new rule for future cases. This is the principle, and it
applies in all its consequences, exactly in the same manner and extent,
to the State governments, as to the national government now under
consideration. Not the least difference can be pointed out in any view
of the subject.

It may in the last place be observed that the supposed danger of
judiciary encroachments on the legislative authority, which has been
upon many occasions reiterated, is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may
now and then happen; but they can never be so extensive as to amount to
an inconvenience, or in any sensible degree to affect the order of the
political system. This may be inferred with certainty, from the general
nature of the judicial power, from the objects to which it relates, from
the manner in which it is exercised, from its comparative weakness, and
from its total incapacity to support its usurpations by force. And the
inference is greatly fortified by the consideration of the important
constitutional check which the power of instituting impeachments in one
part of the legislative body, and of determining upon them in the other,
would give to that body upon the members of the judicial department.
This is alone a complete security. There never can be danger that the
judges, by a series of deliberate usurpations on the authority of the
legislature, would hazard the united resentment of the body intrusted
with it, while this body was possessed of the means of punishing their
presumption, by degrading them from their stations. While this ought to
remove all apprehensions on the subject, it affords, at the same time, a
cogent argument for constituting the Senate a court for the trial of

Having now examined, and, I trust, removed the objections to the
distinct and independent organization of the Supreme Court, I proceed to
consider the propriety of the power of constituting inferior courts,[2]
and the relations which will subsist between these and the former.

The power of constituting inferior courts is evidently calculated to
obviate the necessity of having recourse to the Supreme Court in every
case of federal cognizance. It is intended to enable the national
government to institute or authorize, in each State or district of the
United States, a tribunal competent to the determination of matters of
national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished
by the instrumentality of the State courts? This admits of different
answers. Though the fitness and competency of those courts should be
allowed in the utmost latitude, yet the substance of the power in
question may still be regarded as a necessary part of the plan, if it
were only to empower the national legislature to commit to them the
cognizance of causes arising out of the national Constitution. To confer
the power of determining such causes upon the existing courts of the
several States, would perhaps be as much "to constitute tribunals," as
to create new courts with the like power. But ought not a more direct
and explicit provision to have been made in favor of the State courts?
There are, in my opinion, substantial reasons against such a provision:
the most discerning cannot foresee how far the prevalency of a local
spirit may be found to disqualify the local tribunals for the
jurisdiction of national causes; whilst every man may discover, that
courts constituted like those of some of the States would be improper
channels of the judicial authority of the Union. State judges, holding
their offices during pleasure, or from year to year, will be too little
independent to be relied upon for an inflexible execution of the
national laws. And if there was a necessity for confiding the original
cognizance of causes arising under those laws to them there would be a
correspondent necessity for leaving the door of appeal as wide as
possible. In proportion to the grounds of confidence in, or distrust of,
the subordinate tribunals, ought to be the facility or difficulty of
appeals. And well satisfied as I am of the propriety of the appellate
jurisdiction, in the several classes of causes to which it is extended
by the plan of the convention. I should consider every thing calculated
to give, in practice, an unrestrained course to appeals, as a source of
public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful, to
divide the United States into four or five or half a dozen districts;
and to institute a federal court in each district, in lieu of one in
every State. The judges of these courts, with the aid of the State
judges, may hold circuits for the trial of causes in the several parts
of the respective districts. Justice through them may be administered
with ease and despatch; and appeals may be safely circumscribed within a
narrow compass. This plan appears to me at present the most eligible of
any that could be adopted; and in order to it, it is necessary that the
power of constituting inferior courts should exist in the full extent in
which it is to be found in the proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want of
such a power would have been a great defect in the plan. Let us now
examine in what manner the judicial authority is to be distributed
between the supreme and the inferior courts of the Union.

The Supreme Court is to be invested with original jurisdiction, only "in
cases affecting ambassadors, other public ministers, and consuls, and
those in which A STATE shall be a party." Public ministers of every
class are the immediate representatives of their sovereigns. All
questions in which they are concerned are so directly connected with the
public peace, that, as well for the preservation of this, as out of
respect to the sovereignties they represent, it is both expedient and
proper that such questions should be submitted in the first instance to
the highest judicatory of the nation. Though consuls have not in
strictness a diplomatic character, yet as they are the public agents of
the nations to which they belong, the same observation is in a great
measure applicable to them. In cases in which a State might happen to be
a party, it would ill suit its dignity to be turned over to an inferior

Though it may rather be a digression from the immediate subject of this
paper, I shall take occasion to mention here a supposition which has
excited some alarm upon very mistaken grounds. It has been suggested
that an assignment of the public securities of one State to the citizens
of another, would enable them to prosecute that State in the federal
courts for the amount of those securities; a suggestion which the
following considerations prove to be without foundation.

It is inherent in the nature of sovereignty not to be amenable to the
suit of an individual without its consent. This is the general sense,
and the general practice of mankind; and the exemption, as one of the
attributes of sovereignty, is now enjoyed by the government of every
State in the Union. Unless, therefore, there is a surrender of this
immunity in the plan of the convention, it will remain with the States,
and the danger intimated must be merely ideal. The circumstances which
are necessary to produce an alienation of State sovereignty were
discussed in considering the article of taxation, and need not be
repeated here. A recurrence to the principles there established will
satisfy us, that there is no color to pretend that the State governments
would, by the adoption of that plan, be divested of the privilege of
paying their own debts in their own way, free from every constraint but
that which flows from the obligations of good faith. The contracts
between a nation and individuals are only binding on the conscience of
the sovereign, and have no pretensions to a compulsive force. They
confer no right of action, independent of the sovereign will. To what
purpose would it be to authorize suits against States for the debts they
owe? How could recoveries be enforced? It is evident, it could not be
done without waging war against the contracting State; and to ascribe to
the federal courts, by mere implication, and in destruction of a
pre-existing right of the State governments, a power which would involve
such a consequence, would be altogether forced and unwarrantable.

Let us resume the train of our observations. We have seen that the
original jurisdiction of the Supreme Court would be confined to two
classes of causes, and those of a nature rarely to occur. In all other
cases of federal cognizance, the original jurisdiction would appertain
to the inferior tribunals; and the Supreme Court would have nothing more
than an appellate jurisdiction, "with such exceptions and under such
regulations as the Congress shall make."

The propriety of this appellate jurisdiction has been scarcely called in
question in regard to matters of law; but the clamors have been loud
against it as applied to matters of fact. Some well-intentioned men in
this State, deriving their notions from the language and forms which
obtain in our courts, have been induced to consider it as an implied
supersedure of the trial by jury, in favor of the civil-law mode of
trial, which prevails in our courts of admiralty, probate, and chancery.
A technical sense has been affixed to the term "appellate," which, in
our law parlance, is commonly used in reference to appeals in the course
of the civil law. But if I am not misinformed, the same meaning would
not be given to it in any part of New England. There an appeal from one
jury to another, is familiar both in language and practice, and is even
a matter of course, until there have been two verdicts on one side. The
word "appellate," therefore, will not be understood in the same sense in
New England as in New York, which shows the impropriety of a technical
interpretation derived from the jurisprudence of any particular State.
The expression, taken in the abstract, denotes nothing more than the
power of one tribunal to review the proceedings of another, either as to
the law or fact, or both. The mode of doing it may depend on ancient
custom or legislative provision (in a new government it must depend on
the latter), and may be with or without the aid of a jury, as may be
judged advisable. If, therefore, the re-examination of a fact once
determined by a jury, should in any case be admitted under the proposed
Constitution, it may be so regulated as to be done by a second jury,
either by remanding the cause to the court below for a second trial of
the fact, or by directing an issue immediately out of the Supreme Court.

But it does not follow that the re-examination of a fact once
ascertained by a jury, will be permitted in the Supreme Court. Why may
not it be said, with the strictest propriety, when a writ of error is
brought from an inferior to a superior court of law in this State, that
the latter has jurisdiction of the fact as well as the law? It is true
it cannot institute a new inquiry concerning the fact, but it takes
cognizance of it as it appears upon the record, and pronounces the law
arising upon it.[3] This is jurisdiction of both fact and law; nor is it
even possible to separate them. Though the common-law courts of this
State ascertain disputed facts by a jury, yet they unquestionably have
jurisdiction of both fact and law; and accordingly when the former is
agreed in the pleadings, they have no recourse to a jury, but proceed at
once to judgment. I contend, therefore, on this ground, that the
expressions, "appellate jurisdiction, both as to law and fact," do not
necessarily imply a re-examination in the Supreme Court of facts decided
by juries in the inferior courts.

The following train of ideas may well be imagined to have influenced the
convention, in relation to this particular provision. The appellate
jurisdiction of the Supreme Court (it may have been argued) will extend
to causes determinable in different modes, some in the course of the
COMMON LAW, others in the course of the CIVIL LAW. In the former, the
revision of the law only will be, generally speaking, the proper
province of the Supreme Court; in the latter, the re-examination of the
fact is agreeable to usage, and in some cases, of which prize causes are
an example, might be essential to the preservation of the public peace.
It is therefore necessary that the appellate jurisdiction should, in
certain cases, extend in the broadest sense to matters of fact. It will
not answer to make an express exception of cases which shall have been
originally tried by a jury, because in the courts of some of the States
all causes are tried in this mode[4]; and such an exception would
preclude the revision of matters of fact, as well where it might be
proper, as where it might be improper. To avoid all inconveniencies, it
will be safest to declare generally, that the Supreme Court shall
possess appellate jurisdiction both as to law and fact, and that this
jurisdiction shall be subject to such exceptions and regulations as the
national legislature may prescribe. This will enable the government to
modify it in such a manner as will best answer the ends of public
justice and security.

This view of the matter, at any rate, puts it out of all doubt that the
supposed abolition of the trial by jury, by the operation of this
provision, is fallacious and untrue. The legislature of the United
States would certainly have full power to provide, that in appeals to
the Supreme Court there should be no re-examination of facts where they
had been tried in the original causes by juries. This would certainly be
an authorized exception; but if, for the reason already intimated, it
should be thought too extensive, it might be qualified with a limitation
to such causes only as are determinable at common law in that mode of

The amount of the observations hitherto made on the authority of the
judicial department is this: that it has been carefully restricted to
those causes which are manifestly proper for the cognizance of the
national judicature; that in the partition of this authority a very
small portion of original jurisdiction has been preserved to the Supreme
Court, and the rest consigned to the subordinate tribunals; that the
Supreme Court will possess an appellate jurisdiction, both as to law and
fact, in all the cases referred to them, both subject to any exceptions
and regulations which may be thought advisable; that this appellate
jurisdiction does, in no case, abolish the trial by jury; and that an
ordinary degree of prudence and integrity in the national councils will
insure us solid advantages from the establishment of the proposed
judiciary, without exposing us to any of the inconveniences which have
been predicted from that source.


1. Article 3, Sec. 1.

2. This power has been absurdly represented as intended to abolish all
the county courts in the several States, which are commonly called
inferior courts. But the expressions of the Constitution are, to
constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident design of the provision is to enable the institution of local courts,
subordinate to the Supreme, either in States or larger districts. It is
ridiculous to imagine that county courts were in contemplation.

3. This word is composed of JUS and DICTIO, juris dictio or a speaking
and pronouncing of the law.

4. I hold that the States will have concurrent jurisdiction with the
subordinate federal judicatories, in many cases of federal cognizance,
as will be explained in my next paper.