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 Fœderal jurisdiction. Is this to be exclusive, or are those Courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the National tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.
The principles established in a former paper[1] teach us that the States will retain all preëxisting authorities which may not be exclusively delegated to the Fœderal 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.
- ↑ No. 31.—Publius.
