Federalist No. 81

Federalist No. 81 is the fourth in a series of six essays written by Alexander Hamilton discussing the powers and limitations of the judicial branch (see also 78, 79, 80).   In this paper Hamilton addresses concerns about the separate nature of the Supreme Court and suggestions that trial by jury might be abolished in cases referred to it.   He also explains which types of cases may be taken up by the Supreme Court in original jurisdiction and that, for the most part, the high court is an appellate court.  It is written almost entirely as a rebuttal to Brutus’ anti-Federalist paper on the power of the judiciary.  (Unlike Hamilton’s writing, Brutus’ paper is much easier to read!)

This paper deals with a fair amount of legal language which may make it challenging for non-lawyers.  One of the concepts Hamilton discusses is the difference between a trial of “fact” and a trial of “law.”  Opponents raised the specter of a Supreme Court that abolishes trial by jury.  This leads Hamilton into a somewhat laborious discussion of the roles and responsibilities of the various federal courts with regard to civil and legal trials.  The purpose of a trial of “fact” is to determine whether something existed or some event occurred.  The purpose of a trial of “law” is to determine the applicability of the law.

It is important to note that the Federalist Papers were arguments for ratification of the Constitution prior to the inclusion of the Bill of Rights.   The absence of the 7th Amendment is particularly relevant to Hamilton’s arguments, because although he states that double jeopardy is not to be contemplated, when he wrote this paper it was not explicitly forbidden.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Finally, at one point in the essay, Hamilton refers to prize cases.   The modern reader may not be familiar with this term, although C.S. Forrester or Patrick O’Brian fans probably will.   In the 17th and 18th centuries the taking of prizes was a common feature of naval warfare.  In some cases the legality of taking a prize was disputed.  This is what Hamilton was referring to when he refers to “prize causes”.

On to Federalist 81.

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.

Let us now address how judicial authority should be allocated between the different courts and their interactions.

The Constitution defines one Supreme Court and multiple lower courts.  The lower courts will be created from time to time as required.

Obviously the Supreme Court is, as its name would imply, the final arbiter and holds ultimate authority.  The reasons for this are manifest and have been explained previously.  The only area of dispute that has been raised is whether the Supreme Court should be its own body, or it should be part of the Legislative branch.  It is ironic that the very same men who argue against the Senate’s function as a court of impeachments, because this seems to be an improper mix of legislative and judicial power, advocate for placing the Supreme Court under the purview and jurisdiction of the legislative branch.

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.

Here is the argument being made in favor of making the Supreme Court part of the legislature. Because the Supreme Court is to be a separate and independent body, it will be superior to the legislature.  The power of interpreting  laws according the spirit of the Constitution will let the court mold them into whatever it likes, especially since its decisions are not subject to review or revision by the legislature.  This is as unprecedented as it is dangerous.  In Britain, the Supreme Court is part of the House of Lords, a branch of the legislature.  State constitutions mimic this system for the most part.  Consequently, the Parliament of Great Britain, and similarly State legislatures can override decisions of their courts they deem objectionable.  In contrast, any errors or usurpation of power by the Supreme Court cannot be remedied.  We will demonstrate that this argument is baseless.

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 discretion.

In the first place, nothing in the Constitution empowers federal courts to interpret legislation according to the “spirit of the Constitution”, or gives them any greater power in this arena than that of State courts. I will admit that the Constitution should be used as the standard for making new laws and that if there is a contradiction, the Constitution should take precedence.  But Constitutional supremacy is not a side effect of the convention, but rather endemic in the general theory of a limited Constitution.  Most, if not all State governments already subscribe to this theory.  Therefore, any argument suggesting the impropriety of a federal judiciary working under this assumption, would also invalidate all local courts which seek to restrict legislative discretion over their constitutions.

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.

Maybe the biggest objection is to the organization of the Supreme Court.  The fact that it is to be composed as a distinct body of judges, rather than as one of the branches of the legislature as is the case in Great Britain and the State.  If those making this argument are serious, then they must admit that they really don’t support a separation of powers in general.  Of course, it must be admitted that incorporating supreme judicial authority in part of the legislature does not entirely obviate the separation of powers.  However, it comes close to doing so and is a long way from what was intended by the constitutional convention.  One should not expect impartiality from the legislative branch if they pass bad laws in the first place.  Why should one think that the self-same people that breached the constitution with defective legislation will suddenly do an about face and repair the damage they have wrought as judges of their own actions?  Furthermore, all of the arguments regarding lifetime tenure based on good behavior for judges are reasons for not putting judicial power in the hands of term-limited legislators.  In addition, it’s silly to suggest that the decisions of judges who have an in-depth understanding of the law, acquired by long and laborious study, should be subject to review by people who know a fraction of what they do of the law.  Legislators are popularly elected and are not subject to meeting the same qualifications as judges.  Partisanship will be so prevalent in the legislative branch as to make impartiality in judicial decisions impossible.

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 for these reasons that some states have chosen to separate judicial power from that of the legislature.  Contrary to what opponents of this plan would have you believe, this separation of judicial and legislative authority is not unprecedented or novel.  It is in fact modeled on the state constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,  South Carolina, and Georgia.

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 is also untrue that Great Britain’s Parliament or the legislatures of certain States can repair poor legal rulings of their respective courts, in any way other than might be done by a future United States Congress. Neither do British or State constitutions authorize revising judicial sentences by legislative act.  Nor does the proposed Constitution (any more than they) forbid this.  In all three, it is the impropriety of such an action, general legal principles, and reason which prevent this from occurring.  No legislature, without exceeding its authority, can undue a legal judgment for a particular case; although it may legislate for the future. The new Constitution does not differ in the slightest from the way in which State governments have implemented this principle.

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 impeachments.

The danger of the judicial branch encroaching on legislative authority is nonexistent.   Occasionally, the will of the legislative branch may be thwarted or misinterpreted, but these will be so rare and insignificant that they won’t materially affect the political order.   This is easy to see when one looks at the general nature of judicial power, the sphere of its operation, how judicial power is exercised, and its relative weakness as a result of its inability to enforce its judgements. Furthermore, the legislative branch has the power of impeachment, which may be exercised against the judiciary. This alone provides complete security. It is inconceivable that the judiciary would risk irritating the legislative branch to such a degree that they might be compelled to remove judges from office.  Not only should this remove all apprehensions of the judiciary usurping authority, it also is a great argument for maintaining the power of impeachment within the senate.

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.

Now that the organization and structure of the Supreme court has been resolved, it is time to consider how other courts should be constituted and their operations in relation to the Supreme court.

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.

The power to create lower courts is necessary to avoid requiring the Supreme court to adjudicate every federal case.  These lower courts will be authorized by the federal government to make determinations on national matters within their boundaries.

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.

One might ask why the State courts can’t fulfill this function?  There are several answer to this question.  First, although the caliber of these courts is not in question, it is still necessary for a federal court to adjudicate laws passed by a national legislature.  Power to undo national legislation should not be given to state courts. Such a power would have the affect of making state courts into courts of last resort.  Why shouldn’t the state courts have this power?    There are good reasons for not granting this authority.  For one thing local concerns may conflict with national interests and for another, elected judges are a poor substitute for federal ones with lifetime tenure.  Elected judges lack the independence needed to make the hard decisions that may be needed for national laws. Finally, if there is a need to review legislation, there is a need to appeal such reviews.  A federal court hierarchy is an obvious mechanism for doing so. The more confidence there is in the lower courts the more difficult it should be to appeal,  conversely, the less confidence there is in them, the easier it should be to appeal.  The appellate system set up by the Constitution is appropriate.  Unrestrained access to appeals is a bad thing from both a public and a private standpoint.

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.

It seems as though dividing the United States into 4-6 districts with a federal court in each is preferable to instituting one in every state.  The judges of these courts, along with state judges may travel from location to location in their respective districts.  This will facilitate dispensing justice and allow appeals to be handled within a narrow jurisdiction.   This appears to be the most practical plan and the power to constitute lower courts should be adopted to the full extent specified 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.

It should be obvious now that not having the power to constitute lower courts would have been a big defect in the Constitution.  Next let us examine how judicial authority should be distributed between the supreme and lower federal courts.

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 tribunal.

The Supreme Court should have immediate jurisdiction only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.”  Because public ministers are the immediate subordinates of their sovereigns, it is both expedient and appropriate that cases revolving about them should be submitted immediately to the highest court.   Both respect for the countries represented and the fact that the public peace is directly affected justify such cases going directly before the Supreme Court.  The same argument applies to consuls of foreign powers.

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.

Although it may be a digression from the immediate subject of this paper, there is another issue which bears addressing. It has been suggested (mistakenly) that an assignment of the public securities of one State to the citizens of another would enable them to sue that State in federal courts for the amount of those securities.  This assumption will be proven baseless in the following remarks.

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.

One of the characteristics of sovereignty is that an individual may not bring suit against it without its consent.  Every State in the Union applies this general principle.  Unless explicitly surrendered, this immunity is retained by the States.  Therefore the danger referred to above is a chimera.  These arguments have already been made in the article on taxation and need not be repeated here.   There is nothing to the suggestion that State governments, would, by adopting the Constitution, no longer have the right to pay their own debts in their own way.  The obligations of good faith are the only constraints that would be placed upon them.  The contracts between a nation and individuals are only binding on the conscience of the sovereign.  A nation may not be compelled to submit to an individual.   Since the States are sovereign, what good would it do to authorize suits against them for their debts?  How could judgments be enforced?  It could not be done without waging war and destroying the pre-existing right of State governments.  To do this would be disastrous and unconscionable.

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.”

Returning now to the original discussion, we have shown that Supreme court is the court of first resort only in two rarely occurring types of cases.  In all other federal cases, original jurisdiction would be given to the lower courts.  The Supreme court would serve only as an appellate court of final 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.

Most do not question the propriety of the appellate function with regard to matters of law.  However, there has been loud clamoring with regard to matters of fact.  Some well-intentioned men in this State (NY) have come to the conclusion that  trial by jury is superseded by the Supreme Court.  They have taken literally the term “appellate” as it is applied in the State courts and is commonly used in NY courts of chancery, admiralty and probate. However, it is unlikely that this same meaning would be applied universally throughout New England.  An appeal in various parts of New England does not imply that a jury is not used in the appellate court.  This shows the problem with trying to derive technical interpretations of jurisprudence from any particular State.  The term “appellate” as used in the Constitution simply means the power of one tribunal to review the proceedings of another, either as to the law or fact, or both.   The implementation of it depends entirely on what is deemed appropriate for the particular case.  If the initial trial of a fact was accomplished by jury, then a subsequent review shall also be done by jury, whether by remanding to the court below or by being taken up by 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.

It is not a given that the appeals of cases of fact, once ascertained by a jury, will be taken up in the Supreme Court.   One might ask, is it not true that when a writ of error is brought from a lower to a superior court of law in this State, the latter has jurisdiction of the fact as well as the law?  It is true that a new trial is not permitted regarding a matter of fact (double jeopardy), but the superior court is cognizant of what appears on the record and takes it into consideration when making pronouncements on the law.  This is jurisdiction of both fact and law. Indeed, it is not possible to separate the two.  Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law.   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 mode⁴; 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.

The convention may be safely assumed to have been influenced by the following ideas with regard to this provision.  The appellate jurisdiction of the Supreme Court applies to both COMMON LAW (law derived from judicial precedent and custom rather than from statute) and CIVIL LAW (concerned with private relations between members of the community). In the former, the revision of the law is the proper province of the Supreme Court; in the latter, the re-examination of fact is more likely. Examples of fact trials are prize cases and those essential to preservation of the public peace.  It is not a good idea to make an express exception of cases originally tried by jury because in some states all cases are tried in this mode.  Consequently, such an exception would prohibit the revision of matters of fact, even in circumstances where it is appropriate.  In that it is better to be safe than sorry, it is best 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 goals 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 trial.

It should be absolutely clear now that there is no scheme to abolish trial by jury through the appellate function of the Supreme Court.   The United States Congress can certainly legislate 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.  Should they decide to so stipulate, they might wish to qualify it with a limitation to common law cases in that mode of trial.

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 Congress may think 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.

In summation, the authority of the federal judiciary is carefully restricted to cases obviously appropriate for adjudication by a national court.   Only a very small variety of cases are to be referred directly to the Supreme Court, while the rest are to be assigned to the lower courts.   The Supreme Court will have an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations passed by Congress.   This appellate jurisdiction of the Supreme Court does not abolish trial by jury.  Finally, common sense and honesty in appointment process should be sufficient to guarantee the benefits of the proposed judiciary, without any of the problems which have been predicted.

PUBLIUS
^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.