vested 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.

latter, to the SuThe Constitution

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 preme Court of the United States. in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of Fœderal cognizance, in which it is not to have an original one, without a single expression to confine its operation to the inferior Fœderal 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 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 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 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 Fœderal 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 Fœderal 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, 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 vestea

*

* Sec. 8th, Art. 1st. - Publius.

"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 Fœderal 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 Fœderal 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 Fœderal 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.

[From M'LEAN's Edition, New York, M.DCC.LXXXVIII.]

[THE FEDERALIST.] No. LXXXIII.

[TO THE PEOPLE OF THE STATE OF NEW YORK:]

THE

HE objection to the plan of the Convention, which has met with most success in this State, and perhaps in several of the other States, is that 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, however, be as vain and fruitless, as to attempt the serious proof of the existence of matter, or 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 contemptible for refutation have been employed to countenance the surmise, that a thing, which is only not provided 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, which they have 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: "A specification of particulars is an exclusion of gen"erals;" or, "The expression of one thing is the exclu❝sion 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 prohibition 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 criminal 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 the express injunction of trial by jury in all such cases; but it is of course left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the Legislature to exercise that mode, if it should be thought proper. The pretence, therefore, that the National Legislature would not be at full liberty to submit all the civil causes of Fœderal cognizance to the determination of juries, is a pretence destitute of all just 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 which have been quoted, is contrary to reason and com