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.
No. LXXIX.
The Judiciary Continued
From MCLEAN’s Edition, New York.
HAMILTON
To the People of the State of New York:
Next to permanency in office, nothing can contribute more to the
independence of the judges than a fixed provision for their support.
The remark made in relation to the President is equally applicable
here. In the general course of human nature, A POWER OVER A MAN’s
SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to
see realized in practice, the complete separation of the judicial from
the legislative power, in any system which leaves the former dependent
for pecuniary resources on the occasional grants of the latter. The
enlightened friends to good government in every State, have seen cause
to lament the want of precise and explicit precautions in the State
constitutions on this head. Some of these indeed have declared that
PERMANENT[1] salaries should be established for the judges; but the
experiment has in some instances shown that such expressions are not
sufficiently definite to preclude legislative evasions. Something still
more positive and unequivocal has been evinced to be requisite. The
plan of the convention accordingly has provided that the judges of the
United States “shall at STATED TIMES receive for their services a
compensation which shall not be DIMINISHED during their continuance in
office.”
This, all circumstances considered, is the most eligible provision that
could have been devised. It will readily be understood that the
fluctuations in the value of money and in the state of society rendered
a fixed rate of compensation in the Constitution inadmissible. What
might be extravagant to-day, might in half a century become penurious
and inadequate. It was therefore necessary to leave it to the
discretion of the legislature to vary its provisions in conformity to
the variations in circumstances, yet under such restrictions as to put
it out of the power of that body to change the condition of the
individual for the worse. A man may then be sure of the ground upon
which he stands, and can never be deterred from his duty by the
apprehension of being placed in a less eligible situation. The clause
which has been quoted combines both advantages. The salaries of
judicial officers may from time to time be altered, as occasion shall
require, yet so as never to lessen the allowance with which any
particular judge comes into office, in respect to him. It will be
observed that a difference has been made by the convention between the
compensation of the President and of the judges, That of the former can
neither be increased nor diminished; that of the latter can only not be
diminished. This probably arose from the difference in the duration of
the respective offices. As the President is to be elected for no more
than four years, it can rarely happen that an adequate salary, fixed at
the commencement of that period, will not continue to be such to its
end. But with regard to the judges, who, if they behave properly, will
be secured in their places for life, it may well happen, especially in
the early stages of the government, that a stipend, which would be very
sufficient at their first appointment, would become too small in the
progress of their service.
This provision for the support of the judges bears every mark of
prudence and efficacy; and it may be safely affirmed that, together
with the permanent tenure of their offices, it affords a better
prospect of their independence than is discoverable in the
constitutions of any of the States in regard to their own judges.
The precautions for their responsibility are comprised in the article
respecting impeachments. They are liable to be impeached for malconduct
by the House of Representatives, and tried by the Senate; and, if
convicted, may be dismissed from office, and disqualified for holding
any other. This is the only provision on the point which is consistent
with the necessary independence of the judicial character, and is the
only one which we find in our own Constitution in respect to our own
judges.
The want of a provision for removing the judges on account of inability
has been a subject of complaint. But all considerate men will be
sensible that such a provision would either not be practiced upon or
would be more liable to abuse than calculated to answer any good
purpose. The mensuration of the faculties of the mind has, I believe,
no place in the catalogue of known arts. An attempt to fix the boundary
between the regions of ability and inability, would much oftener give
scope to personal and party attachments and enmities than advance the
interests of justice or the public good. The result, except in the case
of insanity, must for the most part be arbitrary; and insanity, without
any formal or express provision, may be safely pronounced to be a
virtual disqualification.
The constitution of New York, to avoid investigations that must forever
be vague and dangerous, has taken a particular age as the criterion of
inability. No man can be a judge beyond sixty. I believe there are few
at present who do not disapprove of this provision. There is no
station, in relation to which it is less proper than to that of a
judge. The deliberating and comparing faculties generally preserve
their strength much beyond that period in men who survive it; and when,
in addition to this circumstance, we consider how few there are who
outlive the season of intellectual vigor, and how improbable it is that
any considerable portion of the bench, whether more or less numerous,
should be in such a situation at the same time, we shall be ready to
conclude that limitations of this sort have little to recommend them.
In a republic, where fortunes are not affluent, and pensions not
expedient, the dismission of men from stations in which they have
served their country long and usefully, on which they depend for
subsistence, and from which it will be too late to resort to any other
occupation for a livelihood, ought to have some better apology to
humanity than is to be found in the imaginary danger of a superannuated
bench.
PUBLIUS.
[1] _Vide Constitution of Massachusetts_, chapter 2, section 1,
article 13.
THE FEDERALIST.
No. LXXX.
The Powers of the Judiciary
From McLEAN’s Edition, New York.
HAMILTON
To the People of the State of New York:
To judge with accuracy of the proper extent of the federal judicature,
it will be necessary to consider, in the first place, what are its
proper objects.
It seems scarcely to admit of controversy, that the judicary authority
of the Union ought to extend to these several descriptions of cases:
1st, to all those which arise out of the laws of the United States,
passed in pursuance of their just and constitutional powers of
legislation; 2d, to all those which concern the execution of the
provisions expressly contained in the articles of Union; 3d, to all
those in which the United States are a party; 4th, to all those which
involve the PEACE of the CONFEDERACY, whether they relate to the
intercourse between the United States and foreign nations, or to that
between the States themselves; 5th, to all those which originate on the
high seas, and are of admiralty or maritime jurisdiction; and, lastly,
to all those in which the State tribunals cannot be supposed to be
impartial and unbiased.
The first point depends upon this obvious consideration, that there
ought always to be a constitutional method of giving efficacy to
constitutional provisions. What, for instance, would avail restrictions
on the authority of the State legislatures, without some constitutional
mode of enforcing the observance of them? The States, by the plan of
the convention, are prohibited from doing a variety of things, some of
which are incompatible with the interests of the Union, and others with
the principles of good government. The imposition of duties on imported
articles, and the emission of paper money, are specimens of each kind.
No man of sense will believe, that such prohibitions would be
scrupulously regarded, without some effectual power in the government
to restrain or correct the infractions of them. This power must either
be a direct negative on the State laws, or an authority in the federal
courts to overrule such as might be in manifest contravention of the
articles of Union. There is no third course that I can imagine. The
latter appears to have been thought by the convention preferable to the
former, and, I presume, will be most agreeable to the States.
As to the second point, it is impossible, by any argument or comment,
to make it clearer than it is in itself. If there are such things as
political axioms, the propriety of the judicial power of a government
being coextensive with its legislative, may be ranked among the number.
The mere necessity of uniformity in the interpretation of the national
laws, decides the question. Thirteen independent courts of final
jurisdiction over the same causes, arising upon the same laws, is a
hydra in government, from which nothing but contradiction and confusion
can proceed.
Still less need be said in regard to the third point. Controversies
between the nation and its members or citizens, can only be properly
referred to the national tribunals. Any other plan would be contrary to
reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace of the
WHOLE ought not to be left at the disposal of a PART. The Union will
undoubtedly be answerable to foreign powers for the conduct of its
members. And the responsibility for an injury ought ever to be
accompanied with the faculty of preventing it. As the denial or
perversion of justice by the sentences of courts, as well as in any
other manner, is with reason classed among the just causes of war, it
will follow that the federal judiciary ought to have cognizance of all
causes in which the citizens of other countries are concerned. This is
not less essential to the preservation of the public faith, than to the
security of the public tranquillity. A distinction may perhaps be
imagined between cases arising upon treaties and the laws of nations
and those which may stand merely on the footing of the municipal law.
The former kind may be supposed proper for the federal jurisdiction,
the latter for that of the States. But it is at least problematical,
whether an unjust sentence against a foreigner, where the subject of
controversy was wholly relative to the lex loci, would not, if
unredressed, be an aggression upon his sovereign, as well as one which
violated the stipulations of a treaty or the general law of nations.
And a still greater objection to the distinction would result from the
immense difficulty, if not impossibility, of a practical discrimination
between the cases of one complexion and those of the other. So great a
proportion of the cases in which foreigners are parties, involve
national questions, that it is by far most safe and most expedient to
refer all those in which they are concerned to the national tribunals.
The power of determining causes between two States, between one State
and the citizens of another, and between the citizens of different
States, is perhaps not less essential to the peace of the Union than
that which has been just examined. History gives us a horrid picture of
the dissensions and private wars which distracted and desolated Germany
prior to the institution of the Imperial Chamber by Maximilian, towards
the close of the fifteenth century; and informs us, at the same time,
of the vast influence of that institution in appeasing the disorders
and establishing the tranquillity of the empire. This was a court
invested with authority to decide finally all differences among the
members of the Germanic body.
A method of terminating territorial disputes between the States, under
the authority of the federal head, was not unattended to, even in the
imperfect system by which they have been hitherto held together. But
there are many other sources, besides interfering claims of boundary,
from which bickerings and animosities may spring up among the members
of the Union. To some of these we have been witnesses in the course of
our past experience. It will readily be conjectured that I allude to
the fraudulent laws which have been passed in too many of the States.
And though the proposed Constitution establishes particular guards
against the repetition of those instances which have heretofore made
their appearance, yet it is warrantable to apprehend that the spirit
which produced them will assume new shapes, that could not be foreseen
nor specifically provided against. Whatever practices may have a
tendency to disturb the harmony between the States, are proper objects
of federal superintendence and control.
It may be esteemed the basis of the Union, that “the citizens of each
State shall be entitled to all the privileges and immunities of
citizens of the several States.” And if it be a just principle that
every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN
PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the
inviolable maintenance of that equality of privileges and immunities to
which the citizens of the Union will be entitled, the national
judiciary ought to preside in all cases in which one State or its
citizens are opposed to another State or its citizens. To secure the
full effect of so fundamental a provision against all evasion and
subterfuge, it is necessary that its construction should be committed
to that tribunal which, having no local attachments, will be likely to
be impartial between the different States and their citizens, and
which, owing its official existence to the Union, will never be likely
to feel any bias inauspicious to the principles on which it is founded.
The fifth point will demand little animadversion. The most bigoted
idolizers of State authority have not thus far shown a disposition to
deny the national judiciary the cognizances of maritime causes. These
so generally depend on the laws of nations, and so commonly affect the
rights of foreigners, that they fall within the considerations which
are relative to the public peace. The most important part of them are,
by the present Confederation, submitted to federal jurisdiction.
The reasonableness of the agency of the national courts in cases in
which the State tribunals cannot be supposed to be impartial, speaks
for itself. No man ought certainly to be a judge in his own cause, or
in any cause in respect to which he has the least interest or bias.
This principle has no inconsiderable weight in designating the federal
courts as the proper tribunals for the determination of controversies
between different States and their citizens. And it ought to have the
same operation in regard to some cases between citizens of the same
State. Claims to land under grants of different States, founded upon
adverse pretensions of boundary, are of this description. The courts of
neither of the granting States could be expected to be unbiased. The
laws may have even prejudged the question, and tied the courts down to
decisions in favor of the grants of the State to which they belonged.
And even where this had not been done, it would be natural that the
judges, as men, should feel a strong predilection to the claims of
their own government.