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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, they will of course take cognizance of the causes to which those acts may give birth. This 1 infer from the nature of judiciary power, and from the general genius of the system. The judi. ciary 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 Ja. pan, 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 apswer, 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 sin. gle 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 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 national 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
to confine its"iginal one, Wicognizance,
of the most important and avowed purposes of the pro.
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 consi. derations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature 6 to constitute tribunals inferior to the su. 6 preme 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 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.
Wer shal, enumerator dain and and in such tates tha
* Section 8th, Article 1st.
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 pational 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.
whicle thierted to any esations andence of the con abolitio
BY ALEXANDER HAMILTON. and further view of the judicial department, in relation to
the trial by jury, THE objection to the plan of the convention, wbich has met with most success in this state, is relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated, has been repeatedly adverted to and exposed; but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the constitution in regard to civil causes, is represented as an abolition of the trial by jury; and the declamations to which it has afforded a pretext, are artfully calculated to induce a persuasion that this pretended abolition is complete and universal ; extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter, would be as vain and fruitless, as to attempt to demonstrate any of those propositions which, by their own internal evidence, force conviction when expressed in language adapted to convey their meaning.
With regard to civil causes, subtleties almost too con. temptible for refutation, having been employed to counte. pance the surmise that a thing, which is only not provi. ded for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, wbich they bave perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature, 6 a specification of particulars, is an exclusion of generals ;" or, 6 the expression of one thing, is the exclusion of another.” Hence, say they, as the constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied probibition of trial by jury, in regard to the latter.
The rules of legal interpretation, are rules of common sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them, is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common sense to suppose, that a provision obliging the legislative power to commit the trial of cri. minal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases ? · Is it natural to suppose, that a command to do one thing, is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done ? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain, that an injunction of the trial by jury, in certain cases, is an interdiction of it in others.
A power to constitute courts, is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt that institution, or to let it alone. This discretion, in regard to criminal causes, is abridged by an express injunction ; but it is left at large in relation to civil causes, for the very reason that s is no hem un spondings
there is a total silence on the subject. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation of employing the same mode in civil causes, but does not abridge the power of the legislature to appoint that mode, if it should be thought proper. The pretence, therefore, that the national legislature would not be at liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretence destitute of all foundation.
From these observations, this conclusion results, that the trial by jury in civil cases would not be abolished, and that the use attempted to be made of the maxims wbich have been quoted, is contrary to reason, and therefore inadmissible. Even if these maxims had a precise technical sense, corresponding with the ideas of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the use made of them, let us endeavour to ascertain their proper application. This will be best done by examples. The plan of the convention declares, that the power of congress, or in other words of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretention to a general legislative authority; because an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended.
In like manner, the authority of the federal judicatures, is declared by the constitution to comprehend cer. tain cases particularly specified. The expression of those cases, marks the precise limits beyond which the federal courts cannot extend their jurisdiction ; because the objects of their cognizance being enumerated, the specification would be nugatory, if it did not exclude all ideas of more extensive authority,