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 so it 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. 2nd. The tenure by
which they are to hold their places. 3rd. 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 department of power (footnote
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." (footnote 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 it
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
it 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 form 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 pretence 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, (footnote 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
tomorrow the victim of a spirit of injustice, by which he may be a
gainer today. 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.
Signed "PUBLIUS"
Footnotes Explained:
Footnote Number 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.
Footnote Number 2. Idem, page 181.
Footnote Number 3. Vide "Protest of the Minority of the Convention
of Pennsylvania," Martin's Speech, etc.
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