FEDERALIST No. 82

 The Judiciary Continued.

 

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

 

HAMILTON

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 incorporation¹ of a number of distinct sovereignties. 'Tis time only that can mature and perfect so compound a system, can liquidate² the meaning of all the parts, and can adjust them to each other in a harmonious³ 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 jurisdiction⁴. Is this to be exclusive, or are those courts to possess a concurrent⁵ jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries⁶ 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 delegation⁷ 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 utterly⁸ incompatible⁹. Though these principles may not apply with the same force to the judiciary as to the legislative¹⁰ 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 enumerated¹² 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 JUDICIAL¹³ POWER of the United States shall be vested in one Supreme¹⁴ Court, and in such inferior courts as the Congress shall from time to time ordain¹⁵ and establish." This might either be construed¹⁶ 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 alienation¹⁷ of State power by implication, the last appears to me the most natural and the most defensible construction.

But this doctrine¹⁸ 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 peculiar¹⁹ 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 abridgment²⁰ 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 solely²¹, if such a measure should be deemed expedient²²; but I hold that the State courts will be divested²³ of no part of their primitive²⁴ 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 conclusive²⁵, 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 subsist²⁶ 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 contemplated²⁷. 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 eluded²⁸ at the pleasure of every plaintiff or prosecutor²⁹. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely³⁰ inadmissible, as it would defeat some of the most important and avowed³¹ purposes of the proposed government, and would essentially³² 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 auxiliaries³³ to the execution of the laws of the union, and an appeal from them will as naturally lie to that tribunal which is destined³⁴ 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 specified³⁵ 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 abridge³⁶ the latitude³⁷ of the terms, in subversion³⁸ of the intent, contrary to every sound rule of interpretation³⁹.

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 countenance⁴⁰ the affirmative. The plan of the convention, in the first place, authorizes⁴¹ 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 enumerate¹¹ 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 discretion⁴² 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 motives⁴³ to the multiplication⁴⁴ 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.

PUBLIUS

1. No. 31.

2. Sec. 8, Art. 1.

1 incorporation   

n.设立，合并，法人组织

参考例句：

• The incorporation of air bubbles in the glass spoiled it.玻璃含有气泡，使它质量降低。
• The company will be retooled after the incorporation.合并之后的公司要进行重组。

2 liquidate   

v.偿付，清算，扫除；整理，破产

参考例句：

• A unanimous vote was taken to liquidate the company.全体投票一致通过停业清理公司。
• They have not hesitated in the past to liquidate their rivals.过去他们曾毫不犹豫地铲除对手。

3 harmonious   

adj.和睦的，调和的，和谐的，协调的

参考例句：

• Their harmonious relationship resulted in part from their similar goals.他们关系融洽的部分原因是他们有着相似的目标。
• The room was painted in harmonious colors.房间油漆得色彩调和。

4 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

5 concurrent   

adj.同时发生的，一致的

参考例句：

• You can't attend two concurrent events!你不能同时参加两项活动！
• The twins had concurrent birthday. 双胞胎生日在同一天。

6 inquiries   

n.调查( inquiry的名词复数 )；疑问；探究；打听

参考例句：

• He was released on bail pending further inquiries. 他获得保释，等候进一步调查。
• I have failed to reach them by postal inquiries. 我未能通过邮政查询与他们取得联系。 来自《现代汉英综合大词典》

7 delegation   

n.代表团；派遣

参考例句：

• The statement of our delegation was singularly appropriate to the occasion.我们代表团的声明非常适合时宜。
• We shall inform you of the date of the delegation's arrival.我们将把代表团到达的日期通知你。

8 utterly   

adv.完全地，绝对地

参考例句：

• Utterly devoted to the people,he gave his life in saving his patients.他忠于人民，把毕生精力用于挽救患者的生命。
• I was utterly ravished by the way she smiled.她的微笑使我完全陶醉了。

9 incompatible   

adj.不相容的，不协调的，不相配的

参考例句：

• His plan is incompatible with my intent.他的计划与我的意图不相符。
• Speed and safety are not necessarily incompatible.速度和安全未必不相容。

10 legislative   

n.立法机构，立法权；adj.立法的，有立法权的

参考例句：

• Congress is the legislative branch of the U.S. government.国会是美国政府的立法部门。
• Today's hearing was just the first step in the legislative process.今天的听证会只是展开立法程序的第一步。

11 enumerate   

v.列举，计算，枚举，数

参考例句：

• The heroic deeds of the people's soldiers are too numerous to enumerate.人民子弟兵的英雄事迹举不胜举。
• Its applications are too varied to enumerate.它的用途不胜枚举。

12 enumerated   

v.列举，枚举，数( enumerate的过去式和过去分词 )

参考例句：

• A spokesperson enumerated the strikers' demands. 发言人列数罢工者的要求。 来自《简明英汉词典》
• He enumerated the capitals of the 50 states. 他列举了50个州的首府。 来自《现代汉英综合大词典》

13 judicial   

adj.司法的，法庭的，审判的，明断的，公正的

参考例句：

• He is a man with a judicial mind.他是个公正的人。
• Tom takes judicial proceedings against his father.汤姆对他的父亲正式提出诉讼。

14 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

15 ordain   

vi.颁发命令；vt.命令，授以圣职，注定，任命

参考例句：

• The church's ruling body voted to ordain women as priests.该教会的管理机构投票通过接纳女性为牧师。
• The essence of management refers to its internal inevitable ordain quality,and is also called ultimate attribute.管理的本质是指管理自身内在的必然的规定性，即根本属性。

16 construed   

v.解释（陈述、行为等）( construe的过去式和过去分词 )；翻译，作句法分析

参考例句：

• He considered how the remark was to be construed. 他考虑这话该如何理解。
• They construed her silence as meaning that she agreed. 他们把她的沉默解释为表示赞同。 来自《简明英汉词典》

17 alienation   

n.疏远；离间；异化

参考例句：

• The new policy resulted in the alienation of many voters.新政策导致许多选民疏远了。
• As almost every conceivable contact between human beings gets automated,the alienation index goes up.随着人与人之间几乎一切能想到的接触方式的自动化，感情疏远指数在不断上升。

18 doctrine   

n.教义；主义；学说

参考例句：

• He was impelled to proclaim his doctrine.他不得不宣扬他的教义。
• The council met to consider changes to doctrine.宗教议会开会考虑更改教义。

19 peculiar   

adj.古怪的，异常的；特殊的，特有的

参考例句：

• He walks in a peculiar fashion.他走路的样子很奇特。
• He looked at me with a very peculiar expression.他用一种很奇怪的表情看着我。

20 abridgment   

n.删节，节本

参考例句：

• An abridgment of the book has been published for young readers.他们为年轻读者出版了这本书的节本。
• This abridgment provides a concise presentation of this masterpiece of Buddhist literature.这个删节本提供了简明介绍佛教文学的杰作。

21 solely   

adv.仅仅，唯一地

参考例句：

• Success should not be measured solely by educational achievement.成功与否不应只用学业成绩来衡量。
• The town depends almost solely on the tourist trade.这座城市几乎完全靠旅游业维持。

22 expedient   

adj.有用的，有利的；n.紧急的办法，权宜之计

参考例句：

• The government found it expedient to relax censorship a little.政府发现略微放宽审查是可取的。
• Every kind of expedient was devised by our friends.我们的朋友想出了各种各样的应急办法。

23 divested   

v.剥夺( divest的过去式和过去分词 )；脱去（衣服）；2。从…取去…；1。（给某人）脱衣服

参考例句：

• He divested himself of his jacket. 他脱去了短上衣。
• He swiftly divested himself of his clothes. 他迅速脱掉衣服。 来自《简明英汉词典》

24 primitive   

adj.原始的；简单的；n.原(始)人，原始事物

参考例句：

• It is a primitive instinct to flee a place of danger.逃离危险的地方是一种原始本能。
• His book describes the march of the civilization of a primitive society.他的著作描述了一个原始社会的开化过程。

25 conclusive   

adj.最后的，结论的；确凿的，消除怀疑的

参考例句：

• They produced some fairly conclusive evidence.他们提供了一些相当确凿的证据。
• Franklin did not believe that the French tests were conclusive.富兰克林不相信这个法国人的实验是结论性的。

26 subsist   

vi.生存，存在，供养

参考例句：

• We are unable to subsist without air and water.没有空气和水我们就活不下去。
• He could subsist on bark and grass roots in the isolated island.在荒岛上他只能靠树皮和草根维持生命。

27 contemplated   

adj. 预期的 动词contemplate的过去分词形式

参考例句：

• The doctor contemplated the difficult operation he had to perform. 医生仔细地考虑他所要做的棘手的手术。
• The government has contemplated reforming the entire tax system. 政府打算改革整个税收体制。

28 eluded   

v.（尤指机敏地）避开( elude的过去式和过去分词 )；逃避；躲避；使达不到

参考例句：

• The sly fox nimbly eluded the dogs. 那只狡猾的狐狸灵活地躲避开那群狗。 来自《现代汉英综合大词典》
• The criminal eluded the police. 那个罪犯甩掉了警察的追捕。 来自《现代英汉综合大词典》

29 prosecutor   

n.起诉人；检察官，公诉人

参考例句：

• The defender argued down the prosecutor at the court.辩护人在法庭上驳倒了起诉人。
• The prosecutor would tear your testimony to pieces.检查官会把你的证言驳得体无完肤。

30 entirely   

ad.全部地，完整地；完全地，彻底地

参考例句：

• The fire was entirely caused by their neglect of duty. 那场火灾完全是由于他们失职而引起的。
• His life was entirely given up to the educational work. 他的一生统统献给了教育工作。

31 avowed   

adj.公开声明的，承认的v.公开声明，承认( avow的过去式和过去分词)

参考例句：

• An aide avowed that the President had known nothing of the deals. 一位助理声明，总统对这些交易一无所知。
• The party's avowed aim was to struggle against capitalist exploitation. 该党公开宣称的宗旨是与资本主义剥削斗争。 来自《简明英汉词典》

32 essentially   

adv.本质上，实质上，基本上

参考例句：

• Really great men are essentially modest.真正的伟人大都很谦虚。
• She is an essentially selfish person.她本质上是个自私自利的人。

33 auxiliaries   

n.助动词 ( auxiliary的名词复数 )；辅助工，辅助人员

参考例句：

• These auxiliaries have made our work much easier. 有了这些辅助人员，我们的工作才顺利多了。 来自《现代汉英综合大词典》
• In English the future tense is often rendered by means of auxiliaries. 在英语中，将来时常用助动词来表现。 来自辞典例句

34 destined   

adj.命中注定的；(for)以…为目的地的

参考例句：

• It was destined that they would marry.他们结婚是缘分。
• The shipment is destined for America.这批货物将运往美国。

35 specified   

adj.特定的

参考例句：

• The architect specified oak for the wood trim. 那位建筑师指定用橡木做木饰条。
• It is generated by some specified means. 这是由某些未加说明的方法产生的。

36 abridge   

v.删减，删节，节略，缩短

参考例句：

• They are going to abridge that dictionary.他们将要精简那本字典。
• He decided to abridge his stay here after he received a letter from home.他接到家信后决定缩短在这里的逗留时间。

37 latitude   

n.纬度，行动或言论的自由(范围)，(pl.)地区

参考例句：

• The latitude of the island is 20 degrees south.该岛的纬度是南纬20度。
• The two cities are at approximately the same latitude.这两个城市差不多位于同一纬度上。

38 subversion   

n.颠覆，破坏

参考例句：

• He was arrested in parliament on charges of subversion for organizing the demonstration.他因组织示威活动在议会上被以颠覆破坏罪名逮捕。
• It had a cultural identity relatively immune to subversion from neighboring countries.它的文化同一性使它相对地不易被邻国所颠覆。

39 interpretation   

n.解释，说明，描述；艺术处理

参考例句：

• His statement admits of one interpretation only.他的话只有一种解释。
• Analysis and interpretation is a very personal thing.分析与说明是个很主观的事情。

40 countenance   

n.脸色，面容；面部表情；vt.支持，赞同

参考例句：

• At the sight of this photograph he changed his countenance.他一看见这张照片脸色就变了。
• I made a fierce countenance as if I would eat him alive.我脸色恶狠狠地，仿佛要把他活生生地吞下去。

41 authorizes   

授权，批准，委托( authorize的名词复数 )

参考例句：

• The dictionary authorizes the two spellings 'traveler' and 'traveller'. 字典裁定traveler和traveller两种拼法都对。
• The dictionary authorizes the two spellings "honor" and "honour.". 字典裁定 honor 及 honour 两种拼法均可。

42 discretion   

n.谨慎；随意处理

参考例句：

• You must show discretion in choosing your friend.你择友时必须慎重。
• Please use your best discretion to handle the matter.请慎重处理此事。

43 motives   

n.动机，目的( motive的名词复数 )

参考例句：

• to impeach sb's motives 怀疑某人的动机
• His motives are unclear. 他的用意不明。

44 multiplication   

n.增加，增多，倍增；增殖，繁殖；乘法

参考例句：

• Our teacher used to drum our multiplication tables into us.我们老师过去老是让我们反覆背诵乘法表。
• The multiplication of numbers has made our club building too small.会员的增加使得我们的俱乐部拥挤不堪。