fp82.txt

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. 'T is 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.