The Federalist Papers (85 page)

De Lolme.
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Ten.

This was the case with respect to Mr. Fox’s India bill, which was carried in the house of commons, and rejected in the house of lords, to the entire satisfaction, as it is said, of the people.

Mr. Abraham Yates, a warm opponent of the plan of the convention, is of this number.

This construction has since been rejected by the legislature; and it is now settled in practice, that the power of displacing belongs exclusively to the president.

The celebrated Montesquieu, speaking of them says, “of the three powers above mentioned, the JUDICIARY is next to nothing.” Spirit of Laws, vol. 1, page 186.

Idem. page 181.

Vide Protest of the minority of the convention of Pennsylvania, Martin’s speech, &C.
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Vide Constitution of Massachusetts, Chap. 2, Sect. 1, Art. 13.
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Article 3, Sec. 1.

This power has been absurdly represented as intended to abolish all the county courts in the several states, which are commonly called inferior courts. But the expressions of the constitution are to constitute “tribunals INFERIOR TO THE SUPREME COURT,” and the evident design of the provision is to enable the institution of local courts subordinate to the supreme, either in states or larger districts. It is ridiculous to imagine that county courts were in contemplation.

This word is a compound of JUS and DICTIO, juris, dictio or a speaking or pronouncing of the law.

I hold that the states will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in the next paper.

No. XXXII.

Section 8th, Article 1st.

It has been erroneously insinuated, with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question.

It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules.

Vide No. LXXXI in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted.

Vide Blackstone’s Commentaries, vol. 1, page 136.

Idem. vol. 4, page 438.

To show that there is a power in the constitution, by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said, that duties may be laid upon publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the state constitutions, in favour of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press no where enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all general declarations respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution, which has nothing of the kind. It would be quite as significant to declare, that government ought to be free, that taxes ought not to be excessive, &c. as that the liberty of the press ought not to be restrained.

Vide Rutherford’s Institutes, vol. 2, book II, chap. x, sect. xiv, and xv.... Vide also Grotius, book 11, chap. ix, sect. viii, and ix.
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Entitled “An Address to the people of the state of New York.”

It may rather be said TEN, for though two-thirds may set on foot the measure, three-fourths must ratify.

Hume’s Essays, vol. 1, page 128.... The rise of arts and sciences.
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