From McLEAN's Edition, New York. Wednesday, May 28, 1788.
HAMILTON
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 controversy1, that the judiciary 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 intercourse2 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 maritime3 jurisdiction4; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial5 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 restrictions7 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 incompatible8 with the interests of the union, and others with the principles of good government. The imposition of duties on imported articles, and the emission9 of paper money, are specimens10 of each kind. No man of sense will believe, that such prohibitions11 would be scrupulously12 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 propriety13 of the judicial14 power of a government being coextensive with its legislative15, may be ranked among the number. The mere16 necessity of uniformity in the interpretation17 of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra18 in government, from which nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point. Controversies19 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 precedent20, 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 undoubtedly21 be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty22 of preventing it. As the denial or perversion23 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 preservation24 of the public faith, than to the security of the public tranquillity25. 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 aggression26 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 complexion27 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 expedient28 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 horrid29 picture of the dissensions and private wars which distracted and desolated30 Germany prior to the institution of the Imperial Chamber31 by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing32 the disorders33 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 territorial34 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 interfering35 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 conjectured36 that I allude37 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 apprehend38 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 esteemed39 the basis of the union, that "the citizens of each State shall be entitled to all the privileges and immunities40 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 evasion41 and subterfuge42, it is necessary that its construction should be committed to that tribunal which, having no local attachments43, 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 bias6 inauspicious to the principles on which it is founded.
The fifth point will demand little animadversion. The most bigoted44 idolizers of State authority have not thus far shown a disposition45 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 adverse46 pretensions47 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 predilection48 to the claims of their own government.
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 equity49 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 consuls50; 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 enumerated51, 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 interdiction52 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 equitable53 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 peculiar54 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 undue55 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 contemplates56 the cognizance of disputes between the citizens of the same State.
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 judicature.
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 inconveniences should appear to be connected with the incorporation57 of any of them into the plan, it ought to be recollected58 that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate59 or remove these inconveniences. The possibility of particular mischiefs60 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.
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1
controversy
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| n.争论，辩论，争吵 | |
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intercourse
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| n.性交；交流，交往，交际 | |
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maritime
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| adj.海的，海事的，航海的，近海的，沿海的 | |
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jurisdiction
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| n.司法权，审判权，管辖权，控制权 | |
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impartial
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| adj.(in,to)公正的，无偏见的 | |
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bias
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| n.偏见，偏心，偏袒；vt.使有偏见 | |
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restrictions
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| 约束( restriction的名词复数 )； 管制； 制约因素； 带限制性的条件（或规则） | |
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8
incompatible
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| adj.不相容的，不协调的，不相配的 | |
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emission
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| n.发出物，散发物；发出，散发 | |
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10
specimens
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| n.样品( specimen的名词复数 )；范例；（化验的）抽样；某种类型的人 | |
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11
prohibitions
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| 禁令，禁律( prohibition的名词复数 )； 禁酒； 禁例 | |
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12
scrupulously
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| adv.一丝不苟地；小心翼翼地，多顾虑地 | |
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13
propriety
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| n.正当行为；正当；适当 | |
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14
judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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15
legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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16
mere
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| adj.纯粹的；仅仅，只不过 | |
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17
interpretation
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| n.解释，说明，描述；艺术处理 | |
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18
hydra
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| n.水螅；难于根除的祸患 | |
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19
controversies
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| 争论 | |
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20
precedent
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| n.先例，前例；惯例；adj.在前的，在先的 | |
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21
undoubtedly
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| adv.确实地，无疑地 | |
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faculty
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| n.才能；学院，系；(学院或系的)全体教学人员 | |
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23
perversion
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| n.曲解；堕落；反常 | |
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preservation
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| n.保护，维护，保存，保留，保持 | |
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tranquillity
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| n. 平静, 安静 | |
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aggression
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| n.进攻，侵略，侵犯，侵害 | |
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27
complexion
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| n.肤色；情况，局面；气质，性格 | |
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28
expedient
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| adj.有用的，有利的；n.紧急的办法，权宜之计 | |
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29
horrid
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| adj.可怕的；令人惊恐的；恐怖的；极讨厌的 | |
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desolated
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| adj.荒凉的，荒废的 | |
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chamber
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| n.房间，寝室；会议厅；议院；会所 | |
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32
appeasing
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| 安抚，抚慰( appease的现在分词 )； 绥靖（满足另一国的要求以避免战争） | |
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disorders
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| n.混乱( disorder的名词复数 )；凌乱；骚乱；（身心、机能）失调 | |
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territorial
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| adj.领土的，领地的 | |
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interfering
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| adj. 妨碍的 动词interfere的现在分词 | |
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conjectured
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| 推测，猜测，猜想( conjecture的过去式和过去分词 ) | |
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allude
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| v.提及，暗指 | |
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apprehend
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| vt.理解，领悟，逮捕，拘捕，忧虑 | |
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esteemed
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| adj.受人尊敬的v.尊敬( esteem的过去式和过去分词 )；敬重；认为；以为 | |
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immunities
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| 免除，豁免( immunity的名词复数 )； 免疫力 | |
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41
evasion
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| n.逃避，偷漏(税) | |
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42
subterfuge
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| n.诡计；藉口 | |
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43
attachments
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| n.（用电子邮件发送的）附件( attachment的名词复数 )；附着；连接；附属物 | |
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44
bigoted
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| adj.固执己见的，心胸狭窄的 | |
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45
disposition
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| n.性情，性格；意向，倾向；排列，部署 | |
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46
adverse
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| adj.不利的；有害的；敌对的，不友好的 | |
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47
pretensions
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| 自称( pretension的名词复数 )； 自命不凡； 要求； 权力 | |
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48
predilection
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| n.偏好 | |
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49
equity
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| n.公正，公平，（无固定利息的）股票 | |
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50
consuls
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| 领事( consul的名词复数 )； （古罗马共和国时期）执政官 （古罗马共和国及其军队的最高首长，同时共有两位，每年选举一次） | |
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51
enumerated
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| v.列举，枚举，数( enumerate的过去式和过去分词 ) | |
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52
interdiction
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| n.禁止；封锁 | |
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53
equitable
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| adj.公平的；公正的 | |
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54
peculiar
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| adj.古怪的，异常的；特殊的，特有的 | |
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55
undue
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| adj.过分的；不适当的；未到期的 | |
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56
contemplates
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| 深思，细想，仔细考虑( contemplate的第三人称单数 )； 注视，凝视； 考虑接受（发生某事的可能性）； 深思熟虑，沉思，苦思冥想 | |
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57
incorporation
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| n.设立，合并，法人组织 | |
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58
recollected
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| adj.冷静的；镇定的；被回忆起的；沉思默想的v.记起，想起( recollect的过去式和过去分词 ) | |
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59
obviate
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| v.除去，排除，避免，预防 | |
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60
mischiefs
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| 损害( mischief的名词复数 )； 危害； 胡闹； 调皮捣蛋的人 | |
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