The Judiciary Department



From McLEAN’S Edition, New York.



HAMILTON





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; 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.



 [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.



 [2] _Idem_, page 181.



 [3] _Vide Protest of the Minority of the Convention of Pennsylvania_,

 Martin’s Speech, etc.









THE FEDERALIST.