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No. 82
A further view of the judicial department, in reference to some miscellaneous questions
by Alexander Hamilton
A further view of the judicial department,
in reference to some miscellaneous questions
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 ?ow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. Time only can mature and perfect so compound a system, liquidate the meaning of all the parts, and adjust them to each other in a harmonious and consistent whole.
Such questions accordingly have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the state courts, in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.
The principles established in a former paper* teach us that the states will retain all pre-existing authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases; where an exclusive authority is, in express terms, granted to the union; or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states; or, where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same
force to the judiciary, as to the legislative power; yet I am inclined to think, that they are in the main, just with respect to the former, as well as the latter. And under this impression I shall lay it down as a rule, that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.
The only thing in the proposed constitution, which wears the appearance of con?ning the causes of federal cognizance, to the federal courts, is contained in this passage: “the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish.” This might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes, to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts, as congress should think proper to appoint; 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 ?rst excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the ?rst would amount to an alienation of state power by implication, the last appears to me the most defensible construction.
But this doctrine of concurrent jurisdiction, is only clearly applicable to those descriptions of causes, of which the state courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the constitution to be established; for not to allow the state courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend, that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation, to the federal courts solely, if such a measure should be deemed expedient; but I hold that the state courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion, that in every case in which they were not expressly excluded by the future acts of the national legislature,laws, and in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the state governments and the national governments, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive, that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the union, where it was not expressly prohibited.
Here another question occurs; what relation would subsist between the national and state courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the supreme court of the United States. The constitution in direct terms gives an appellate jurisdiction to the supreme court in all the enumerated cases of federal cognizance, in which it is not to have an original one, without a single expression to con?ne its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of na-tional concern, else the judiciary authority of the union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor did I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and state systems are to be regarded as one whole. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the union, and an appeal from them will as naturally lie to that tribunal, which is destined to unite and assimilate the principles of national justice and the rules of national decision. The evident aim of the plan of the convention is, that all the causes of the speci?ed classes shall, for weighty public reasons, receive their original or ?nal determination in the courts of the union. To con?ne, therefore, the general expressions which give appellate jurisdiction to the supreme court, to appeals from the subordinate federal courts, instead of allowing their extension to the state
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 courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.
But could an appeal be made to lie from the state courts, to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater dif?culty than the former. The following considera-tions countenance the af?rmative. The plan of the convention, in the ?rst place, authorizes the national legislature “to constitute tribunals inferior to the supreme court.”* It declares in the next place, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress shall ordain and establish;” and it then proceeds to enumerate the cases, to which this judicial power shall extend. It afterwards divides the jurisdiction of the supreme court into original and appellate, but gives no de?nition 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 speci?ed limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the state courts, to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the supreme court. The state tribunals may then be left with a more entire charge of federal causes; and appeals in most cases in which they may be deemed proper, instead of being carried to the supreme court, may be made to lie from the state courts, to district courts of the union.
publius
*No. XXXII.
*Section 8th, Article 1st.
No. 82
续论司法部门
原载１７８８年麦克莱恩版
第八十二篇（汉密尔顿）
致纽约州人民： 
建立新政府的工作无论如何明智、细心，总难避免出现复杂、微妙的问题。在为若干各自拥有主权的州实现全面或部分联合制定宪法时，可以期待各种复杂、微妙问题以其特殊形式不断涌现。唯有经过一定时间始能使如此复杂的制度逐步成熟、完善，使各部分的不同意向消除，彼此适应于一个融合、一致的整体之内。
正因如此，制宪会议提出的宪法草案亦出现此类问题，特别是在与司法部门有关的方面。这主要牵涉到州法院在有关提交联邦司法的各类案件中所处的地位。此类司法权应全部交付联邦法院、亦由州法院与联邦法院共同行使？如共同行使，州法院与国家法庭的关系如何？凡此种种问题既皆出自有识之士，亦为吾人当予重视的问题。
前此一文中已经确立的若干原则说明：各州应保留一切固有权力不得统统委诸联邦。权力的全部转授只发生于下列三种情况之一：宪法明文规定授与联邦全权者；规定授与联邦并禁止各州行使类似权力者：规定授与联邦而各州无法行使类似权力者。尽管此类原则应用于司法上不具有应用于立法上的约束力强，但笔者倾向于设想：这些原则大体上对前者与后者同样适用。根据这一设想，笔者可以定下一条规则：州法院的现有司法权除在上述几种模式下转授者外应该全部保留。
宪法草案唯一近似将应由联邦审理案件的审判权限于联邦法庭审理的规定为：“合众国之司法权，属于最高法院及国会随时规定设置之下级法院。”此条可以解释为联邦 最高法院及其下级法院单独享有其权力范围各种案件的审理权；亦可解释为其含意仅指国家司法机关应由最高法院与国会认为应予建立的任何数目的下级法院组成；换言之， 即合众国应通过一最高法院及由其建立的若干下级法院行使宪法授予的司法权。前一种 解释排除州法院共享司法权，而后一种解释则承认州法院共享司法权。既然前一解释有 使各州放弃其权力的寓意，则后一种说法似为最自然最合理的解释。
但显然此种共享司法权只限于州法院原有的案件审理权。产生于拟议中宪法以及与之有特殊联系的案件，是否亦适用，则不如是明显。因为很难认为不赋予州法院此类案件的司法权就是对各州固有权力的剥夺。因此，就合众国为便于处理，将由其管辖事项立法中出现的争讼审理权单独委之于联邦法院，笔者并无意进行争辩。但笔者主张州法院的原有司法权除有关上诉事宜外一律不得剥夺！笔者甚至认为：除国会通过今后的立法明文规定排除州法院干预者外，州法院有当然的审理权。此乃司法的性质与我国制度的一般特点所９６４第八十二篇决定。一切政府，其司法范围均不仅限于地方性法律条款，在民法案件中凡辖区内的一切争讼，无论涉及地球上如何遥远地区的法律，均皆进行审理。日本的法律作为我国法庭争讼探讨的课题，与纽约法律无异。而且，考虑到州与联邦的亲密关系，作为一个整体的各个部分，可以断言：除明确排除州法院干预者外，各州对于联邦法律性质的案件应同联邦共享司法权。 
此处又发生另一问题：在共享司法权情况下，国家法院与州法院关系若何？笔者之答案为：由州法院上诉，当然要上诉到最高法院。宪法明文规定最高法院对所列举联邦司法范围内的案件不进行初审者均具有上诉裁判权，并未规定仅审理联邦下级法院的上诉案件。此规定仅考虑上诉案涉及的内容对象，而不考虑来自那类法庭。从此出发并据以推论，最高法院的上诉裁判权包括各州法庭的上诉。舍此，则需排除州法院共享全国性案件的司法权，否则任一诉讼人或检察官均可恣意逃避联邦司法的权威。这两种情况实无必要使其发生，而后一种情况尤其不能允许，因发生这种情况则与拟建立的政府之奋斗目标大相径庭，必使其政令难以实行。笔者对作此设想的理由亦难以揣测。如前所述，国家与各州的制度?应视为一个整体，州法院自应辅助联邦法律的实施，州法院的上诉案件自应上诉到以统一和协调全国司法及全国裁判法规为其任务的最高法院。宪法草案的明显目标为：草案中列举的一切案件种类皆有关重大公益需由联邦法院进行初审亦即最后审定。因此，如对赋予最高法院的上诉司法权加以限制，而仅限于复审联邦下 级法院的案件，不包括州法院的上诉案件，实将缩小宪法原文规定的寓意，歪曲其原有 设想，违反解释宪法的一切正常规则。
但是否可以从州法院上诉到联邦的下级法院？这是曾经提到的另一个问题。较前一问题更难解决。如从以下考虑设想，则对这一问题的答案亦为：可以。第一，宪法草案授权国会“设置低于最高法院之法庭”。第二，宪法规定：“合众国之司法权，属于最高法院及国会随时规定设置之下级法院”，并于其后列举联邦司法权所及的范围。于此之后将最高法院的审判划分为初审与上诉两部分，并未对下级法院加以规范。对下级法院的唯一有关规定为：“低于最高法院”，且不能超越联邦司法权所及的范围；其司法权为 初审或上诉复审，抑或二者兼而有之，并无明文规定。凡此似均留待国会以后决定。因此，目前笔者认为从州法院上诉到联邦的下级法院，程序上似无问题，且有若干可以设想的优点。
因为，此则无需多设联邦法院，并可在一定安排下控制上诉至最高法院案件的数量。州法院则可更加全面审理涉及联邦司法的各类案件，并根据情况划出某些案件应上诉至联邦区级法院，以代替上诉至最高法院。
普布利乌斯