*** Index * Quote * Context ***
The Judiciary Department
To the People of the State of New York:
In unfolding the defects of the existing Confederation, the
utility and necessity of a federal judicature have been clearly
pointed out. It is the less necessary to recapitulate the
considerations there urged, as the propriety of the institution in
the abstract is not disputed; the only questions which have been
raised being relative to the manner of constituting it, and to its
extent. To these points, therefore, our observations shall be
confined.
The manner of constituting it seems to embrace these several
objects: 1st. The mode of appointing the judges. 2d. The tenure by
which they are to hold their places. 3d. The partition of the
judiciary authority between different courts, and their relations to
each other.
First. As to the mode of appointing the judges; this is
the same with that of appointing the officers of the Union in
general, and has been so fully discussed in the two last numbers,
that nothing can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold
their places; this chiefly concerns their duration in office; the
provisions for their support; the precautions for their
responsibility.
According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices during good
behavior; which is conformable to the most approved of the State
constitutions and among the rest, to that of this State. Its
propriety having been drawn into question by the adversaries of that
plan, is no light symptom of the rage for objection, which disorders
their imaginations and judgments. The standard of good behavior for
the continuance in office of the judicial magistracy, is certainly
one of the most valuable of the modern improvements in the practice
of government. In a monarchy it is an excellent barrier to the
despotism of the prince; in a republic it is a no less excellent
barrier to the encroachments and oppressions of the representative
body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial
administration of the laws.
Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or
injure them. The Executive not only dispenses the honors, but holds
the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of
every citizen are to be regulated. The judiciary, on the contrary,
has no influence over either the sword or the purse; no direction
either of the strength or of the wealth of the society; and can
take no active resolution whatever. It may truly be said to have
neither force nor will, but merely judgment; and must ultimately
depend upon the aid of the executive arm even for the efficacy of
its judgments.
This simple view of the matter suggests several important
consequences. It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of power[1]; that
it can never attack with success either of the other two; and that
all possible care is requisite to enable it to defend itself against
their attacks. It equally proves, that though individual oppression
may now and then proceed from the courts of justice, the general
liberty of the people can never be endangered from that quarter; I
mean so long as the judiciary remains truly distinct from both the
legislature and the Executive. For I agree, that ``there is no
liberty, if the power of judging be not separated from the
legislative and executive powers.''[2] And it proves, in the last
place, that as liberty can have nothing to fear from the judiciary
alone, but would have every thing to fear from its union with either
of the other departments; that as all the effects of such a union
must ensue from a dependence of the former on the latter,
notwithstanding a nominal and apparent separation; that as, from
the natural feebleness of the judiciary, it is in continual jeopardy
of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its
firmness and independence as permanency in office, this quality may
therefore be justly regarded as an indispensable ingredient in its
constitution, and, in a great measure, as the citadel of the public
justice and the public security.
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex-post-facto laws, and the like.
Limitations of this kind can be preserved in practice no other way
than through the medium of courts of justice, whose duty it must be
to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular
rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has
arisen from an imagination that the doctrine would imply a
superiority of the judiciary to the legislative power. It is urged
that the authority which can declare the acts of another void, must
necessarily be superior to the one whose acts may be declared void.
As this doctrine is of great importance in all the American
constitutions, a brief discussion of the ground on which it rests
cannot be unacceptable.
There is no position which depends on clearer principles, than
that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the
representatives of the people are superior to the people themselves;
that men acting by virtue of powers, may do not only what their
powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may
be answered, that this cannot be the natural presumption, where it
is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the
people to substitute their will to that of their constituents. It
is far more rational to suppose, that the courts were designed to be
an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits
assigned to their authority. The interpretation of the laws is the
proper and peculiar province of the courts. A constitution is, in
fact, and must be regarded by the judges, as a fundamental law. It
therefore belongs to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative body.
If there should happen to be an irreconcilable variance between the
two, that which has the superior obligation and validity ought, of
course, to be preferred; or, in other words, the Constitution ought
to be preferred to the statute, the intention of the people to the
intention of their agents.
Nor does this conclusion by any means suppose a superiority of
the judicial to the legislative power. It only supposes that the
power of the people is superior to both; and that where the will of
the legislature, declared in its statutes, stands in opposition to
that of the people, declared in the Constitution, the judges ought
to be governed by the latter rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by
those which are not fundamental.
This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one
time, clashing in whole or in part with each other, and neither of
them containing any repealing clause or expression. In such a case,
it is the province of the courts to liquidate and fix their meaning
and operation. So far as they can, by any fair construction, be
reconciled to each other, reason and law conspire to dictate that
this should be done; where this is impracticable, it becomes a
matter of necessity to give effect to one, in exclusion of the other.
The rule which has obtained in the courts for determining their
relative validity is, that the last in order of time shall be
preferred to the first. But this is a mere rule of construction,
not derived from any positive law, but from the nature and reason of
the thing. It is a rule not enjoined upon the courts by legislative
provision, but adopted by themselves, as consonant to truth and
propriety, for the direction of their conduct as interpreters of the
law. They thought it reasonable, that between the interfering acts
of an equal authority, that which was the last indication of its
will should have the preference.
But in regard to the interfering acts of a superior and
subordinate authority, of an original and derivative power, the
nature and reason of the thing indicate the converse of that rule as
proper to be followed. They teach us that the prior act of a
superior ought to be preferred to the subsequent act of an inferior
and subordinate authority; and that accordingly, whenever a
particular statute contravenes the Constitution, it will be the duty
of the judicial tribunals to adhere to the latter and disregard the
former.
It can be of no weight to say that the courts, on the pretense
of a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well
happen in the case of two contradictory statutes; or it might as
well happen in every adjudication upon any single statute. The
courts must declare the sense of the law; and if they should be
disposed to exercise will instead of judgment, the consequence would
equally be the substitution of their pleasure to that of the
legislative body. The observation, if it prove any thing, would
prove that there ought to be no judges distinct from that body.
If, then, the courts of justice are to be considered as the
bulwarks of a limited Constitution against legislative
encroachments, this consideration will afford a strong argument for
the permanent tenure of judicial offices, since nothing will
contribute so much as this to that independent spirit in the judges
which must be essential to the faithful performance of so arduous a
duty.
This independence of the judges is equally requisite to guard
the Constitution and the rights of individuals from the effects of
those ill humors, which the arts of designing men, or the influence
of particular conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the
meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community. Though I
trust the friends of the proposed Constitution will never concur
with its enemies,[3] in questioning that fundamental principle of
republican government, which admits the right of the people to alter
or abolish the established Constitution, whenever they find it
inconsistent with their happiness, yet it is not to be inferred from
this principle, that the representatives of the people, whenever a
momentary inclination happens to lay hold of a majority of their
constituents, incompatible with the provisions in the existing
Constitution, would, on that account, be justifiable in a violation
of those provisions; or that the courts would be under a greater
obligation to connive at infractions in this shape, than when they
had proceeded wholly from the cabals of the representative body.
Until the people have, by some solemn and authoritative act,
annulled or changed the established form, it is binding upon
themselves collectively, as well as individually; and no
presumption, or even knowledge, of their sentiments, can warrant
their representatives in a departure from it, prior to such an act.
But it is easy to see, that it would require an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the Constitution, where legislative invasions of it had been
instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution
only, that the independence of the judges may be an essential
safeguard against the effects of occasional ill humors in the
society. These sometimes extend no farther than to the injury of
the private rights of particular classes of citizens, by unjust and
partial laws. Here also the firmness of the judicial magistracy is
of vast importance in mitigating the severity and confining the
operation of such laws. It not only serves to moderate the
immediate mischiefs of those which may have been passed, but it
operates as a check upon the legislative body in passing them; who,
perceiving that obstacles to the success of iniquitous intention are
to be expected from the scruples of the courts, are in a manner
compelled, by the very motives of the injustice they meditate, to
qualify their attempts. This is a circumstance calculated to have
more influence upon the character of our governments, than but few
may be aware of. The benefits of the integrity and moderation of
the judiciary have already been felt in more States than one; and
though they may have displeased those whose sinister expectations
they may have disappointed, they must have commanded the esteem and
applause of all the virtuous and disinterested. Considerate men, of
every description, ought to prize whatever will tend to beget or
fortify that temper in the courts: as no man can be sure that he
may not be to-morrow the victim of a spirit of injustice, by which
he may be a gainer to-day. And every man must now feel, that the
inevitable tendency of such a spirit is to sap the foundations of
public and private confidence, and to introduce in its stead
universal distrust and distress.
That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be
indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated, or by
whomsoever made, would, in some way or other, be fatal to their
necessary independence. If the power of making them was committed
either to the Executive or legislature, there would be danger of an
improper complaisance to the branch which possessed it; if to both,
there would be an unwillingness to hazard the displeasure of either;
if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult
popularity, to justify a reliance that nothing would be consulted
but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency
of the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with
great propriety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advantages of a free
government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them; and it will readily be
conceived from the variety of controversies which grow out of the
folly and wickedness of mankind, that the records of those
precedents must unavoidably swell to a very considerable bulk, and
must demand long and laborious study to acquire a competent
knowledge of them. Hence it is, that there can be but few men in
the society who will have sufficient skill in the laws to qualify
them for the stations of judges. And making the proper deductions
for the ordinary depravity of human nature, the number must be still
smaller of those who unite the requisite integrity with the
requisite knowledge. These considerations apprise us, that the
government can have no great option between fit character; and that
a temporary duration in office, which would naturally discourage
such characters from quitting a lucrative line of practice to accept
a seat on the bench, would have a tendency to throw the
administration of justice into hands less able, and less well
qualified, to conduct it with utility and dignity. In the present
circumstances of this country, and in those in which it is likely to
be for a long time to come, the disadvantages on this score would be
greater than they may at first sight appear; but it must be
confessed, that they are far inferior to those which present
themselves under the other aspects of the subject.
Upon the whole, there can be no room to doubt that the
convention acted wisely in copying from the models of those
constitutions which have established good behavior as the tenure of
their judicial offices, in point of duration; and that so far from
being blamable on this account, their plan would have been
inexcusably defective, if it had wanted this important feature of
good government. The experience of Great Britain affords an
illustrious comment on the excellence of the institution.
Publius.
Notes:
Hamilton From McLean's Edition, New York.
WE PROCEED now to an examination of the judiciary department of
the proposed government.