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Bui why, it is asked, might not the same purpose have been accoinplished by the instrumentality of the state courts? This admits of different answers. Though the fitness and competency of these 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 authorize the national legislature to commit to them the cognizance of causes arising out of the national constitution. To confor upon the existing courts of the several states the power of determining such causes, would perhaps be as much “to constitute tribunals," as to creato now courts with the like power. But ought not a more direct and explicit provision to have been made in favour of the state courts ?
There are, in my opinion, substantial reasons against such a provision: The most discerning cannot forosee 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 to them the original cognizance of causes arising under those laws, 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 appellato 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.
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 may
hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be adminis. tered with ease and dispatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to mo at presont tho 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 wbich it is seen 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.
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 tho 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 sovereigntios they represent, it is both expodient 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.
Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which bas excited some alarm upon very mistaken grounds: It has boon suggested that an assignment of the public securities of ono 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.
It is inherent in the nature of sovereignty, not to be amen. able 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 tho 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 colour 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 soveroign, and have no pretension 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 that it could not be done, without waging war against the contracting state: and to ascribe to the fodoral 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.
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.”
The propriety of this appellate jurisdiction has been scarcely
called in question in regard to matters of law; but the clamours 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 favour of the civil law mode of trial, which prevails 1a our courts of admiralty, probates, 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, tho same meaning would not be given to it in any part of NewEngland. 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 a 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.
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 it not 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
* This word is a compound of jus and Dictio.juris, dictio, or a speaking or pronouncing of the law.
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. 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, bút proceed at once to judgmont. 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 pro- . vision. 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 agrecable to usage, and in some cases, of which prize causos aro an oxamplo, might bo ossontial to the preservation of the public peace. It is therefore necessary, that the appellate jurisdiction should, in certain cases, extend in the broadest eonse to matters of fact. It will not answer to make au express exception of cases which shall have been originally tried by a jury, bocause in the courts of some of the states, all causes are triod in this modo;* 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 inconveniences, it will be safest to declare generally, that the supreme court shall possess appellate jurisdiction, both as to law and
* I hold, that the states will have concurrent jurisdiction with the subordiDate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper.