Title: The Federalist No. 75, [26 March 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, March 26, 1788]
To the People of the State of New-York.
THE president is to have power “by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.” Though this provision has been assailed on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is, the trite topic of the intermixture of powers; some contending that the president ought alone to possess the power of making treaties; and others, that it ought to have been exclusively deposited in the senate. Another source of objection is derived from the small number of persons by whom a treaty may be made: Of those who espouse this objection, a part are of opinion that the house of representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two-thirds of all the members of the senate to two-thirds of the members present. As I flatter myself the observations made in a preceding number, upon this part of the plan, must have sufficed to place it to a discerning eye in a very favourable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated.
With regard to the intermixture of powers, I shall rely upon the explanations already given, in other places of the true sense of the rule, upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the executive with the senate, in the article of treaties, is no infringement of that rule. I venture to add that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition: For if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of the society, while the execution of the laws and the employment of the common strength, either for this purpose or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong properly neither to the legislative nor to the executive. The qualities elsewhere detailed, as indispensable in the management of foreign negotiations, point out the executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a part of the legislative body in the office of making them.
However proper or safe it may in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to entrust that power to an elective magistrate for four years duration. It has been remarked upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much at stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of but a moderate or slender fortune, and looking forward to a period not very remote, when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States.
To have entrusted the power of making treaties to the senate alone, would have been to relinquish the benefits of the constitutional agency of the president, in the conduct of foreign negotiations. It is true, that the senate would in that case have the option of employing him in this capacity; but they would also have the option of letting it alone; and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representative of the nation; and of course would not be able to act with an equal degree of weight or efficacy. While the union would from this cause lose a considerable advantage in the management of its external concerns, the people would lose the additional security, which would result from the co-operation of the executive. Though it would be imprudent to confide in him solely so important a trust; yet it cannot be doubted, that his participation in it would materially add to the safety of the society. It must indeed be clear to a demonstration, that the joint possession of the power in question by the president and senate would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances, which must concur in the appointment of a president will be satisfied, that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom as on that of integrity.
The remarks made in a former number, which has been alluded to in an other part of this paper, will apply with conclusive force against the admission of the house of representatives to a share in the formation of treaties. The fluctuating and taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible with the genius of a body so variable and so numerous. The very complication of the business by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expence, as alone ought to condemn the project.
The only objection which remains to be canvassed is that which would substitute the proportion of two thirds of all the members composing the senatorial body to that of two thirds of the members present. It has been shewn under the second head of our inquiries that all provisions which require more than the majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavour to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would in many cases from the non attendance of a part amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder. Proofs of this position might be adduced from the examples of the Roman tribuneship, the Polish diet and the states general of the Netherlands; did not an example at home render foreign precedents unnecessary.
To require a fixed proportion of the whole body would not in all probability contribute to the advantages of a numerous agency, better than merely to require a proportion of the attending members. The former by making a determinate number at all times requisite to a resolution diminishes the motives to punctual attendance. The latter by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that under the existing confederation two members may and usually do represent a state; whence it happens that Congress, who now are solely invested with all the powers of the union, rarely consists of a greater number of persons than would compose the intended senate. If we add to this, that as the members vote by states, and that where there is only a single member present from a state, his vote is lost, it will justify a supposition that the active voices in the senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When in addition to these considerations we take into view the co-operation of the president, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new constitution, than they now enjoy under the confederation. And when we proceed still one step further, and look forward to the probable augmentation of the senate, by the erection of new states, we shall not only perceive ample ground of confidence in the sufficiency of the numbers, to whose agency that power will be entrusted; but we shall probably be led to conclude that a body more numerous than the senate would be likely to become, would be very little fit for the proper discharge of the trust.
PUBLIUS.


Title: The Federalist No. 76, [1 April 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, April 1, 1788]
To the People of the State of New-York.
THE President is “to nominate and by and with the advice and consent of the Senate to appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, or in the Courts of law, or in the heads of departments. The President shall have power to fill up all vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
It has been observed in a former paper, “that the true test of a good government is its aptitude and tendency to produce a good administration.” If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must when examined be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this, to produce a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration.
It will be agreed on all hands, that the power of appointment in ordinary cases ought to be modified in one of three ways. It ought either to be vested in a single man—or in a select assembly of a moderate number—or in a single man with the concurrence of such an assembly. The exercise of it by the people at large, will be readily admitted to be impracticable; as, waving every other consideration it would leave them little time to do any thing else. When therefore mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly of the description already given. The people collectively from their number and from their dispersed situation cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will I presume agree to the position that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analise and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will on this account feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretentions to them. He will have fewer personal attachments to gratify than a body of men, who may each be supposed to have an equal number, and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well directed man by a single understanding, cannot be distracted and warped by that diversity of views, feelings and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations, whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party will be more considered than those which fit the person for the station. In the last the coalition will commonly turn upon some interested equivalent—“Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negociations.
The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made in this respect by the Convention. They contend that the President ought solely to have been authorized to make the appointments under the Fœderal Government. But it is easy to shew that every advantage to be expected from such an arrangement would in substance be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer, would be avoided. In the act of nomination his judgment alone would be exercised; and as it would be his sole duty to point out the man, who with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can in this view be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case would exist in the other. And as no man could be appointed, but upon his previous nomination, every man who might be appointed would be in fact his choice.
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted by the preference they might feel to another to reject the one proposed; because they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain that a future nomination would present a candidate in any degree more acceptable to them: And as their dissent might cast a kind of stigma upon the individual rejected; and might have the appearance of a reflection upon the judgment of the chief magistrate; it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
To what purpose then require the co-operation of the Senate? I answer that the necessity of their concurrence would have a powerful, though in general a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. And, in addition to this, it would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man, who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body; and that body an entire branch of the Legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body, whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations, candidates who had no other merit, than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
To this reasoning, it has been objected, that the President by the influence of the power of nomination may secure the compliance of the Senate to his views. The supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude. The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence. And experience justifies the theory: It has been found to exist in the most corrupt periods of the most corrupt governments. The venality of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong, as well as in this; and it cannot be doubted that the charge is to a considerable extent well founded. But it is as little to be doubted that there is always a large proportion of the body, which consists of independent and public spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to controul the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose, that the executive might occasionally influence some individuals in the Senate; yet the supposition that he could in general purchase the integrity of the whole body would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members; but that the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The constitution has provided some important guards against the danger of executive influence upon the legislative body: It declares that “No Senator, or representative shall, during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been encreased during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office.”
PUBLIUS.


Title: The Federalist No. 77, [2 April 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, April 2, 1788]
To the People of the State of New-York.
IT has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the chief magistrate therefore would not occasion so violent or so general a revolution in the officers of the government, as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change, in favour of a person more agreeable to him, by the apprehension that the discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disapprobation of that body, which from the greater permanency of its own composition, will in all probability be less subject to inconstancy, than any other member of the government.
To this union of the senate with the president, in the article of appointments, it has in some cases been objected, that it would serve to give the president an undue influence over the senate; and in others, that it would have an opposite tendency; a strong proof that neither suggestion is true.
To state the first in its proper form is to refute it. It amounts to this—The president would have an improper influence over the senate; because the senate would have the power of restraining him. This is an absurdity in terms. It cannot admit of a doubt that the intire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their controul.
Let us take a view of the converse of the proposition—“The senate would influence the executive.” As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the senate confer a benefit upon the president by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiesence in a favorite choice, when public motives might dictate a different conduct; I answer that the instances in which the president could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the senate. The POWER which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the president be meant restraining him, this is precisely what must have been intended. And it has been shewn that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrouled agency of that magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its ills.
Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this state a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. If an ill appointment should be made the executive for nominating and the senate for approving would participate though in different degrees in the opprobrium and disgrace.
The reverse of all this characterises the manner of appointment in this state. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know is, that the governor claims the right of nomination: That two out of the considerable number of four men can too often be managed without much difficulty: That if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition, by regulating the times of meeting in such a manner as to render their attendance inconvenient: And that, from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this state avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them: Or whether he prostitutes that advantage to the advancement of persons, whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which unfortunately for the community can only be the subjects of speculation and conjecture.
Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expence, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government, in a few families, and would lead more directly to an aristocracy or an oligarchy, than any measure that could be contrived. If to avoid an accumulation of offices, there was to be a frequent change in the persons, who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council in fine as a substitute for the plan of the convention, would be productive of an increase of expence, a multiplication of the evils which spring from favouritism and intrigue in the distribution of the public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the executive. And yet such a council has been warmly contended for as an essential amendment in the proposed constitution.
I could not with propriety conclude my observations on the subject of appointments, without taking notice of a scheme, for which there has appeared some, though but a few advocates; I mean that of uniting the house of representatives in the power of making them. I shall however do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating, and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the executive and of the senate, would be defeated by this union; and infinite delays and embarrassments would be occasioned. The example of most of the states in their local constitutions, encourages us to reprobate the idea.
The only remaining powers of the executive, are comprehended in giving information to congress of the state of the union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.
Except some cavils about the power of convening either house of the legislature and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required indeed an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the senate at least, we can readily discover a good reason for it. As this body has a concurrent power with the executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the house of representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.
We have now compleated a survey of the structure and powers of the executive department, which, I have endeavoured to show, combines, as far as republican principles would admit, all the requisites to energy. The remaining enquiry is; does it also combine the requisites to safety in the republican sense—a due dependence on the people—a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances, from the election of the president once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other; and to the forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones, which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the chief magistrate of the United States would by that plan be subjected to the controul of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?
PUBLIUS.


Title: From Alexander Hamilton to James Madison, [3 April 1788]
From: Hamilton, Alexander
To: Madison, James

[New York, April 3, 1788]
I have been very delinquent My Dear Sir in not thanking you sooner for your letter from Philadelphia. The remarks you make on a certain subject are important and will be attended to. There is truly much embarrassment in the case.
I think however the principles we have talked of, in respect to the legislative authorities, are not only just but will apply to the other departments. Nor will the consequences appear so disagreeable, as they may seem at first sight, when we attend to the true import of the rule established. The states retain all the authorities they were before possessed of, not alienated in the three modes pointed out; but this does not include cases which are the creatures of the New Constitution. For instance, the crime of treason against the United States immediately, is a crime known only to the New Constitution. There of course was no power in the state constitutions to pardon that crime. There will therefore be none under the new &c. This or something like it seems to me to afford the best solution of the difficulty.
I send you the Fœderalist from the beginning to the conclusion of the commentary on the Executive branch. If our suspicions of the author be right, he must be too much engaged to make a rapid progress in what remains. The Court of Chancery & a Circuit Court are now setting.
We are told that your election has succeeded; with which we all felicitate ourselves. I will thank you for an account of the result generally.
In this state our prospects are much as you left them—a moot point which side will prevail. Our friends to the Northward are active.
I remain   Yr. affectionate & obedt serv
A Hamilton
April 3d.


Title: Campaign Broadside, 12 April 1788
From: Hamilton, Alexander
To:

NEW-YORK, 12th of April, 1788.
Friends and Countrymen
From a sincere Attachment to yourselves, and a Regard to our mutual Interest, we are induced to apprize you of our Opinions on a Subject, which we view as of the most essential Consequence to both.
YOUR Countrymen in New-York, in Union of Sentiment with the true Friends of America, have long lamented the want of a FIRM, NATIONAL GOVERNMENT; without which they consider Property as insecure, and Liberty without a substantial Basis.
IN Order to avert the Calamities incident to such a Situation, and to rescue us from one so truly Dangerous, a respectable Body of the most tried Patriots of America have digested, and submitted to the PEOPLE, a Plan of Government, which we have good reason to believe, if accepted, will deliver this Country from the Misfortunes with which it is now threatened.
FROM the fullest Persuasion, that it will be ADVISEABLE for the People of the State of New-York to join in supporting a Federal Government for the United States—and from the most entire Conviction that the new Constitution is well calculated to preserve all the Rights and Privileges which FREEMEN hold dear, we cannot refrain from recommending it to your most serious Consideration—we had almost said to your hearty support. We conceive it more especially our Duty to do so, at this Time, because we have the best Authority to believe, that the Influence of some Characters, whose political conduct we do not approve, is employed to engage your Suffrages at the ensuing Election, in supporting a Cause which we believe to be hostile to the Happiness of this Country: We have Reason to suspect also, that our Sentiments on this Subject have been industriously misrepresented to you; a Circumstance which first suggested the Propriety of the present Address. We assure you, Friends and Countrymen, that the SCOTSMEN of this City, with very few Exceptions, are friendly to the New Plan of Government.
WE beg you to believe that whilst we are thus anxious to communicate to you our Sentiments on this important subject, we by no means aim at any improper Influence over your Opinions—we know and feel that we are addressing Freemen—we therefore intreat you, maturely to reflect before you give your Votes, where your Confidence may most sagely be reposed: whether in men who it is to be feared may have an Interest in artfully misrepresenting Facts, or in such whose political Conduct is directed to the Public Good.
WE trust that before the ensuing Election, you will weigh very seriously, the Counsel which we now offer to you: be persuaded, that it has proceeded from the best Intentions, and flows from the best Judgement, of
Your affectionate Countrymen,


Title: Appointment as Delegate to the General Meeting of the Society of the Cincinnati, 3 May 1788
From: Society of the Cincinnati
To: Hamilton, Alexander

New York, May 3, 1788. Baron von Steuben, president of the Society of the Cincinnati of the State of New York, signed a certification that Hamilton and six other men had been appointed delegates to represent New York in the “General Meeting of the society of ye. Cincinnati to be holden in the City of Philadelphia on Monday the fifth day of May 1788.”


Title: From Alexander Hamilton to James Madison, [11 May 1788]
From: Hamilton, Alexander
To: Madison, James

[New York, May 11, 1788]
My Dr Sir
I believe I am in your debt a letter or two, which is owing to my occupations in relation to the elections &c.
These are now over in this state, but the result is not known. All depends upon Albany where both sides claim the victory. Our doubts will not be removed till the latter end of the month. I hope your expectations of Virginia have not diminished.

Respecting the first volume of Publius I have executed your commands. The books have been sent addressed to the care of Governor Randall. The second we are informed will be out in the course of a week, & an equal number shall be forwarded.
Inclosed is a letter committed to my care by a Mr. Van der Kemp which I forward with pleasure
Believe me with great attachment   Yrs.
A Hamilton


Title: To Alexander Hamilton from John Jay, 15 May 1788
From: Jay, John
To: Hamilton, Alexander

Office for foreign Affairs [New York] 15th May 1788
Dr. Sir
Mr. Richard Laurence of Staten Island has complained to Congress, and to the King of Great Britain, that Judgments have been obtained and executed against him in certain Actions of Trespass, which he says were commenced and prosecuted in Violation of the Treaty of Peace. In these Actions I understand you was concerned for him, and as it is important that the Facts which concern the Merits of his Complaint be ascertained with Precision, I take the Liberty of requesting the Favor of you to furnish me with a State of them as soon as you conveniently can.
With great Esteem and Regard I am, Dr. Sir,   Your most obt. and hble Servt
John Jay
The Honorable A. Hamilton Esqr.


Title: From Alexander Hamilton to James Madison, [19 May 1788]
From: Hamilton, Alexander
To: Madison, James

[New York, May 19, 1788]
Some days since I wrote to you, My Dear Sir, inclosing a letter from a Mr. V Der Kemp &c.
I then mentioned to you that the question of a majority for or against the constitution would depend upon the County of Albany. By the latter accounts from that quarter I fear much that the issue there has been against us.
As Clinton is truly the leader of his party, and is inflexibly obstinate I count little on overcoming opposition by reason. Our only chances will be the previous ratification by nine states, which may shake the firmness of his followers; and a change in the sentiments of the people which have been for some time travelling towards the constitution, though the first impressions made by every species of influence and artifice were too strong to be eradicated in time to give a decisive turn to the elections. We shall leave nothing undone to cultivate a favourable disposition in the citizens at large.
The language of the Antifœderalists is that if all the other states adopt, New York ought still to hold out. I have the most direct intelligence, but in a manner, which forbids a public use being made of it, that Clinton has in several conversations declared his opinion of the inutility of the Union. Tis an unhappy reflection, that the friends to it should by quarrelling for straws among themselves promote the designs of its adversaries.
We think here that the situation of your state is critical. Let me know what you now think of it. I believe you meet nearly at the time we do. It will be of vast importance that an exact communication should be kept up between us at that period; and the moment any decisive question is taken, if favourable, I request you to dispatch an express to me with pointed orders to make all possible diligence, by changing horses &c. All expences shall be thankfully and liberally paid.
I executed your commands respecting the first vol of the Fœderalist. I sent 40 of the common copies & twelve of the finer ones addressed to the care of Governor Randolph. The Printer announces the second vol in a day or two, when an equal number of the two kinds shall also be forwarded. He informs that the Judicial department trial by jury bill of rights &c. is discussed in some additional papers which have not yet appeared in the Gazettes.
I remain with great sincerity & attachment

New York May 19. 1788
Mr. Maddison


Title: From Alexander Hamilton to Gouverneur Morris, [19 May 1788]
From: Hamilton, Alexander
To: Morris, Gouverneur

[New York, May 19, 1788]
My Dear Sir
I acknowlege my delinquency in not thanking you before for your obliging letter from Richmond. But the truth is that I have been so overwhelmed in avocations of one kind or another that I have scarcely had a moment to spare to a friend. You I trust will be the less disposed to be inexorable, as I hope you believe there is no one for whom I have more inclination than yourself—I mean of the male kind.
Your account of the situation of Virginia was interesting, and the present appearances as represented here justify your conjectures. It does not however appear that the adoption of the constitution can be considered as out of doubt in that state. Its conduct upon the occasion will certainly be of critical importance.
In this state, as far as we can judge, the elections have gone wrong. The event however will not certainly be known till the end of the month. Violence rather than moderation is to be looked for from the opposite party. Obstinacy seems the prevailing trait in the character of its leader. The language is, that if all the other states adopt, this is to persist in refusing the constitution. It is reduced to a certainty that Clinton has in several conversations declared the Union unnecessary; though I have the information through channels which do not permit a public use to be made of it.
We have, notwithstanding the unfavourable complexion of things, two sources of hope—one the chance of a ratification by nine states before we decide and the influence of this upon the firmness of the followers, the other the probability of a change of sentiment in the people, auspicious to the constitution. The current has been for some time running towards it; though the whole flood of official influence accelerated by a torrent of falsehood, early gave the public opinion so violent a direction in a wrong channel that it was not possible suddenly to alter its course. This is a mighty stiff simile; but you know what I mean; and after having started it, I did not choose to give up the chace.
Adieu Yrs. Sincerely
A Hamilton
New York May 19. 1788

The members of the Convention in this City, by a Majority of nine or ten to one, will be

  John Jay
  Robert R. Livingston
  Richard Morris
  John Sloss Hobart
  James Duane
  Isaac Rosevelt
  Richard Harrison
  Nicholas Lowe
  Alexander Hamilton

G Morris Esqr


Title: Account with New York State, [21 May 1788]
From: New York State,Hamilton, Alexander
To:

[New York, May 21, 1788. On this date Hamilton submitted a bill to New York State. Document not found].


Title: To Alexander Hamilton from Marquis de Lafayette, 24 May 1788
From: Lafayette, Marie-Joseph-Paul-Yves-Roch-Gilbert du Motier, marquis de
To: Hamilton, Alexander

Paris May the 24th 1788
My dear Hamilton
It is a Hard thing for me to Be separated from the friends I love the Best, and to think that our daily Conversations are Reduced to a few letters, the Arrival of Which is ever lengthy and sometimes Uncertain. I Hope, However, My dear friend, you don’t question My Continual and Affectionate Remembrance of the Happy days I Have Past With You. I Hope You often think of me, and of the pleasure I’d Have to Embrace You Again. When that Happiness is to Be Expected I don’t Know. But When I took the penn to write to You, I Was so Painfully struck With the difference Between this, and our former Hourly Correspondence, that it Has damped My Spirits, and Better fitted me for tender Effusions than political Accounts. I Must However Speack to You of the Revolution Now Going on in this Country. Every Publications Have Been Sent to Mr Jay; and I Hope they Will Be printed. You Will find a difference Between our Assertions and those of the King Which Must Convince You that Such a Contestation Could not long Subsist; and that despotism or liberty (monarchical liberty I mean) must Conquer. Government Have lately Struck a Great Blow, and as the people Could Not Be Roused, I Have for a few days thought We Were Gone. But a passive discontent, Non obedience, and a Kind of Quacker Resistance Will, I Hope, suffice to Undo the fatal scheme, and I Now expect that a National Assembly Will Be the only Means for Government to Get Rid of the things that Have Been laid in their Way. The Parliaments, our Courts of justice, Have Been the Medium for the friends of liberty to set forth their claims, and they Have Behaved Nobly—after all, the french Constitution, supposing it to Become as Good or Better than that of England, Will Bear No Comparison With the Worst Constitution that May Be pointed out within the United States,—it Must Be poisoned With abuses which it is impossible, and Perhaps improper for the present to Eradicate. This letter Will Be delivered By Mr de Warville, who altho He Has writen Against chattelux’s journal, is a writer in favor of America and liberty, and wishes to write on American Affairs. He Has a Military fellow traveller and I Beg leave to Introduce Both. He Will explain to You What Has Been done in this Country Respecting the Negroe trade, and slavery. I don’t Know wether You Had me Enlisted in the Societies at Newyork and Elsewhere; if Not, I Beg You Will do it—I am Making an Experiment at Cayenne on a plantation I Have purchased on purpose. Adieu, My Dear Hamilton, my most Affectionate Respects wait on Mrs. Hamilton, Doctor Cochran, His Lady, all friends.
Most affectionately   Yours
Lafayette
I will tell you Between us that I Had a letter from M. de Moustier wherein I perceive that He Must Be put in Good Humour With Congressional people. I wish Him to Be pleased, in order that His Representations Be favourable.


Title: Continental Congress. Amendment to Supplement to Land Ordinance, [28 May 1788]
From: Hamilton, Alexander
To:

[New York, May 28, 1788]
That the persons intitled to lands by virtue of such warrants shall be at liberty to locate them on any part of the two tracts or districts of land reserved and set apart for the purpose of satisfying the military bounties due to the late army provided that each location be made either in contact with some point or part of the external boundary of the said tracts respectively or of some prior location therein. Locations to be made by causing a survey of the tracts located—


Title: The Federalist No. 80, [28 May 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, May 28, 1788]
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 controversy that the judiciary authority of the union ought to extend to these several descriptions of causes. 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 intercourse 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 maritime jurisdiction; and lastly, to all those in which the state tribunals cannot be supposed to be impartial and unbiassed.
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 restrictions 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 incompatible with the interests of the union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe that such prohibitions would be scrupulously 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 over-rule 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 propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point. Controversies 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 precedent, 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 undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion 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 preservation of the public faith, than to the security of the public tranquility. 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 aggression upon his sovereign, as well as one which violated the stipulations in a treaty or the general laws 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 complection 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 expedient 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 horrid picture of the dissentions and private wars which distracted and desolated Germany prior to the institution of the IMPERIAL CHAMBER by Maximilian, towards the close of the fifteenth century; and informs us at the same time of the vast influence of that institution in appeasing the disorders and establishing the tranquility of the empire. This was a court invested with authority to decide finally all differences between the members of the Germanic body.
A method of terminating territorial 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 interfering 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 conjectured that I allude to the fradulent 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 apprehend 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 esteemed the basis of the union, that “the citizens of each state shall be entitled to all the privileges and immunities 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 evasion and subterfuge, it is necessary that its construction should be committed to that tribunal, which, having no local attachments, 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 bias inauspicious to the principles on which it is founded.
The fifth point will demand little animadversion. The most bigotted idolizers of state authority have not thus far shewn a disposition to deny the national judiciary the cognizance 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 the citizens of the same state. Claims to land under grants of different states, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting states could be expected to be unbiassed. The laws may have even prejudged the question, and tied the courts down to decisions in favour 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 predilection 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 equity 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 consuls; 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 under 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 to the two first classes of causes which have been enumerated as proper for the jurisdiction of the United States. It has been asked what is meant by “cases arising under the constitution,” in contradistinction 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 interdiction results from the constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emitted, the controversies concerning it would be cases arising upon the constitution, and not upon 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 equitable 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 peculiar 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 undue 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 instance in which the proposed constitution directly contemplates 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 shewn 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 inconveniencies should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniencies. The possibility of particular mischiefs can never be viewed by a well-informed mind as a solid objection to a general principle, which is calculated to avoid general mischiefs, and to obtain general advantages.
PUBLIUS.


Title: The Federalist No. 82, [28 May 1788]
From: Hamilton, Alexander,“Publius”
To:

[New York, May 28, 1788]
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 incorporation of a number of distinct sovereignties. ’Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can 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 intitled to attention.
The principles established in a former paper

   Vol. I, No. XXXII.

 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 confining 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, 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 alienation of state power by implication, the last appears to me the most natural and 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 abridgement of a pre-existing authority. I mean not therefore to contend that the United States in the course of legislation upon the objects entrusted 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, 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 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 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 plantiff or prosecutor. Neither of these consequences ought without evident necessity to be involved; the latter would be intirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially 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 auxiliaries to the execution of the laws of the union, and an appearl 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 decisions. The evident aim of the plan of the convention is that all the causes of the specified 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 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 difficulty than the former. The following considerations countenance the affirmative. The plan of the convention in the first place authorises the national legislature “to constitute tribunals inferior to the supreme court”

   Section 8th, Article 1st.

. 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 appelate, 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 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.