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 power1; 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.