The Judiciary Continued
From McLEAN's Edition, New York.
Wednesday, May 28, 1788


To the People of the State of New York:

THE erection of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of intricacy
and nicety; and these may, in a particular manner, be expected to flow
from the establishment of a constitution founded upon the total or
partial incorporation of a number of distinct sovereignties. 'Tis time
only that can mature and perfect so compound a system, can liquidate the
meaning of all the parts, and can adjust them to each other in a
harmonious and consistent WHOLE.

Such questions, accordingly, have arisen upon the plan proposed by the
convention, and particularly concerning the judiciary department. The
principal of these respect the situation of the State courts in regard
to those causes which are to be submitted to federal jurisdiction. Is
this to be exclusive, or are those courts to possess a concurrent
jurisdiction? If the latter, in what relation will they stand to the
national tribunals? These are inquiries which we meet with in the mouths
of men of sense, and which are certainly entitled to attention.

The principles established in a former paper[1] teach us that the States
will retain all pre-existing authorities which may not be exclusively
delegated to the federal head; and that this exclusive delegation can
only exist in one of three cases: where an exclusive authority is, in
express terms, granted to the Union; or where a particular authority is
granted to the Union, and the exercise of a like authority is prohibited
to the States; or where an authority is granted to the Union, with which
a similar authority in the States would be utterly incompatible. Though
these principles may not apply with the same force to the judiciary as
to the legislative power, yet I am inclined to think that they are, in
the main, just with respect to the former, as well as the latter. And
under this impression, I shall lay it down as a rule, that the State
courts will retain the jurisdiction they now have, unless it appears to
be taken away in one of the enumerated modes.

The only thing in the proposed Constitution, which wears the appearance
of confining the causes of federal cognizance to the federal courts, is
contained in this passage: "THE JUDICIAL POWER of the United States
shall be vested in one Supreme Court, and in such inferior courts as the
Congress shall from time to time ordain and establish." This might
either be construed to signify, that the supreme and subordinate courts
of the Union should alone have the power of deciding those causes to
which their authority is to extend; or simply to denote, that the organs
of the national judiciary should be one Supreme Court, and as many
subordinate courts as Congress should think proper to appoint; or in
other words, that the United States should exercise the judicial power
with which they are to be invested, through one supreme tribunal, and a
certain number of inferior ones, to be instituted by them. The first
excludes, the last admits, the concurrent jurisdiction of the State
tribunals; and as the first would amount to an alienation of State power
by implication, the last appears to me the most natural and the most
defensible construction.

But this doctrine of concurrent jurisdiction is only clearly applicable
to those descriptions of causes of which the State courts have previous
cognizance. It is not equally evident in relation to cases which may
grow out of, and be peculiar to, the Constitution to be established; for
not to allow the State courts a right of jurisdiction in such cases, can
hardly be considered as the abridgment of a pre-existing authority. I
mean not therefore to contend that the United States, in the course of
legislation upon the objects intrusted to their direction, may not
commit the decision of causes arising upon a particular regulation to
the federal courts solely, if such a measure should be deemed expedient;
but I hold that the State courts will be divested of no part of their
primitive jurisdiction, further than may relate to an appeal; and I am
even of opinion that in every case in which they were not expressly
excluded by the future acts of the national legislature, they will of
course take cognizance of the causes to which those acts may give birth.
This I infer from the nature of judiciary power, and from the general
genius of the system. The judiciary power of every government looks
beyond its own local or municipal laws, and in civil cases lays hold of
all subjects of litigation between parties within its jurisdiction,
though the causes of dispute are relative to the laws of the most
distant part of the globe. Those of Japan, not less than of New York,
may furnish the objects of legal discussion to our courts. When in
addition to this we consider the State governments and the national
governments, as they truly are, in the light of kindred systems, and as
parts of ONE WHOLE, the inference seems to be conclusive, that the State
courts would have a concurrent jurisdiction in all cases arising under
the laws of the Union, where it was not expressly prohibited.

Here another question occurs: What relation would subsist between the
national and State courts in these instances of concurrent jurisdiction?
I answer, that an appeal would certainly lie from the latter, to the
Supreme Court of the United States. The Constitution in direct terms
gives an appellate jurisdiction to the Supreme Court in all the
enumerated cases of federal cognizance in which it is not to have an
original one, without a single expression to confine its operation to
the inferior federal courts. The objects of appeal, not the tribunals
from which it is to be made, are alone contemplated. From this
circumstance, and from the reason of the thing, it ought to be construed
to extend to the State tribunals. Either this must be the case, or the
local courts must be excluded from a concurrent jurisdiction in matters
of national concern, else the judiciary authority of the Union may be
eluded at the pleasure of every plaintiff or prosecutor. Neither of
these consequences ought, without evident necessity, to be involved; the
latter would be entirely inadmissible, as it would defeat some of the
most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national
and State systems are to be regarded as ONE WHOLE. The courts of the
latter will of course be natural auxiliaries to the execution of the
laws of the Union, and an appeal from them will as naturally lie to that
tribunal which is destined to unite and assimilate the principles of
national justice and the rules of national decisions. The evident aim of
the plan of the convention is, that all the causes of the specified
classes shall, for weighty public reasons, receive their original or
final determination in the courts of the Union. To confine, therefore,
the general expressions giving appellate jurisdiction to the Supreme
Court, to appeals from the subordinate federal courts, instead of
allowing their extension to the State courts, would be to abridge the
latitude of the terms, in subversion of the intent, contrary to every
sound rule of interpretation.

But could an appeal be made to lie from the State courts to the
subordinate federal judicatories? This is another of the questions which
have been raised, and of greater difficulty than the former. The
following considerations countenance the affirmative. The plan of the
convention, in the first place, authorizes the national legislature "to
constitute tribunals inferior to the Supreme Court."[2] It declares, in
the next place, that "the JUDICIAL POWER of the United States shall be
vested in one Supreme Court, and in such inferior courts as Congress
shall ordain and establish"; and it then proceeds to enumerate the cases
to which this judicial power shall extend. It afterwards divides the
jurisdiction of the Supreme Court into original and appellate, but gives
no definition of that of the subordinate courts. The only outlines
described for them, are that they shall be "inferior to the Supreme
Court," and that they shall not exceed the specified limits of the
federal judiciary. Whether their authority shall be original or
appellate, or both, is not declared. All this seems to be left to the
discretion of the legislature. And this being the case, I perceive at
present no impediment to the establishment of an appeal from the State
courts to the subordinate national tribunals; and many advantages
attending the power of doing it may be imagined. It would diminish the
motives to the multiplication of federal courts, and would admit of
arrangements calculated to contract the appellate jurisdiction of the
Supreme Court. The State tribunals may then be left with a more entire
charge of federal causes; and appeals, in most cases in which they may
be deemed proper, instead of being carried to the Supreme Court, may be
made to lie from the State courts to district courts of the Union.


1. No. 31.

2. Sec. 8, Art. 1.