The Judiciary Department
From McLEAN'S Edition, New York.
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary
department of the proposed government.
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 (see Constitution
3.1); 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 (see
Constitution
2.2). The legislature
not only commands the purse, but prescribes the rules by which
the duties and rights of every citizen are to be regulated (see
Constitution
1.8). 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 coordinate 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 (see Constitution
1.9.2). 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
(1) The celebrated Montesquieu,
speaking of them, says: "Of the three powers above mentioned,
the judiciary is next to nothing.'' "Spirit of Laws.''
vol. i., page 186. Return to text
(2) Idem, page 181. Return
to text
(3) Vide "Protest of
the Minority of the Convention of Pennsylvania,'' Martin's Speech,
etc. Return to text
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