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.
FEDERALIST No. 79
The Judiciary Continued
From MCLEAN's Edition, New York. Wednesday, May 28, 1788
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.
FEDERALIST No. 80
The Powers of the Judiciary
From McLEAN's Edition, New York. Wednesday, May 28, 1788.
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 judiciary 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.
Having thus laid down and discussed the principles which ought to
regulate the constitution of the federal judiciary, we will proceed to
test, by these principles, the particular powers of which, according to
the plan of the convention, it is to be composed. It is to comprehend
"all cases in law and equity arising under the Constitution, the laws
of the United States, and treaties made, or which shall be made, under
their authority; to all cases affecting ambassadors, other public
ministers, and consuls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the United States shall be a
party; to controversies between two or more States; between a State and
citizens of another State; between citizens of different States; between
citizens of the same State claiming lands and grants of different
States; and between a State or the citizens thereof and foreign states,
citizens, and subjects." This constitutes the entire mass of the
judicial authority of the Union. Let us now review it in detail. It is,
then, to extend:
First. To all cases in law and equity, arising under the Constitution
and the laws of the United States. This corresponds with the two
first classes of causes, which have been enumerated, as proper for the
jurisdiction of the United States. It has been asked, what is meant
by "cases arising under the Constitution," in contradiction from those
"arising under the laws of the United States"? The difference has been
already explained. All the restrictions upon the authority of the State
legislatures furnish examples of it. They are not, for instance, to emit
paper money; but the interdiction results from the Constitution, and
will have no connection with any law of the United States. Should paper
money, notwithstanding, be emited, the controversies concerning it would
be cases arising under the Constitution and not the laws of the United
States, in the ordinary signification of the terms. This may serve as a
sample of the whole.