From McLEAN'S Edition, New York. Wednesday, May 28, 1788
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 pointed1 out. It is the less necessary to recapitulate2 the considerations there urged, as the propriety3 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 tenure4 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 fully5 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 drawn6 into question by the adversaries7 of that plan, is no light symptom of the rage for objection, which disorders8 their imaginations and judgments10. The standard of good behavior for the continuance in office of the judicial11 magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy12 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 expedient13 which can be devised in any government, to secure a steady, upright, and impartial14 administration of the laws.
Whoever attentively15 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 dispenses16 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 judgment9; 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 requisite18 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 remains19 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 legislative20 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 dependence21 of the former on the latter, notwithstanding a nominal22 and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy23 of being overpowered, awed24, 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 citadel25 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 specified27 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 tenor28 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 doctrine29 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 valid30. 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 acting31 by virtue32 of powers, may do not only what their powers do not authorize33, 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 conclusive34 upon the other departments, it may be answered, that this cannot be the natural presumption35, 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 constituents36. 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 interpretation37 of the laws is the proper and peculiar26 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 ascertain38 its meaning, as well as the meaning of any particular act proceeding39 from the legislative body. If there should happen to be an irreconcilable40 variance41 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 statute42, 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 statutes43, stands in opposition44 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 discretion45, in determining between two contradictory46 laws, is exemplified in a familiar instance. It not uncommonly48 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 repealing49 clause or expression. In such a case, it is the province of the courts to liquidate50 and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire51 to dictate52 that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion53 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 mere17 rule of construction, not derived54 from any positive law, but from the nature and reason of the thing. It is a rule not enjoined55 upon the courts by legislative provision, but adopted by themselves, as consonant56 to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering57 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 derivative58 power, the nature and reason of the thing indicate the converse59 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 contravenes60 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 pretense61 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 bulwarks62 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 arduous63 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 disseminate64 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 minor65 party in the community. Though I trust the friends of the proposed Constitution will never concur66 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 momentary67 inclination68 happens to lay hold of a majority of their constituents, incompatible69 with the provisions in the existing Constitution, would, on that account, be justifiable70 in a violation71 of those provisions; or that the courts would be under a greater obligation to connive72 at infractions in this shape, than when they had proceeded wholly from the cabals73 of the representative body. Until the people have, by some solemn and authoritative74 act, annulled75 or changed the established form, it is binding76 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 uncommon47 portion of fortitude77 in the judges to do their duty as faithful guardians78 of the Constitution, where legislative invasions of it had been instigated79 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 mitigating80 the severity and confining the operation of such laws. It not only serves to moderate the immediate81 mischiefs82 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 iniquitous83 intention are to be expected from the scruples84 of the courts, are in a manner compelled, by the very motives85 of the injustice86 they meditate87, 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 displeased88 those whose sinister89 expectations they may have disappointed, they must have commanded the esteem90 and applause of all the virtuous91 and disinterested92. Considerate men, of every description, ought to prize whatever will tend to beget93 or fortify94 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 inevitable95 tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress96.
That inflexible97 and uniform adherence98 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 improper99 complaisance100 to the branch which possessed101 it; if to both, there would be an unwillingness102 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 disposition103 to consult popularity, to justify104 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 precedents105, 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 controversies106 which grow out of the folly107 and wickedness of mankind, that the records of those precedents must unavoidably swell108 to a very considerable bulk, and must demand long and laborious109 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 deductions110 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 apprise111 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 lucrative112 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 qualified113, 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 defective114, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence115 of the institution.
PUBLIUS
1. The celebrated116 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.
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pointed
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| adj.尖的，直截了当的 | |
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recapitulate
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| v.节述要旨，择要说明 | |
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propriety
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| n.正当行为；正当；适当 | |
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tenure
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| n.终身职位；任期；(土地)保有权，保有期 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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adversaries
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| n.对手，敌手( adversary的名词复数 ) | |
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disorders
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| n.混乱( disorder的名词复数 )；凌乱；骚乱；（身心、机能）失调 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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judgments
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| 判断( judgment的名词复数 )； 鉴定； 评价； 审判 | |
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judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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monarchy
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| n.君主，最高统治者；君主政体，君主国 | |
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expedient
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| adj.有用的，有利的；n.紧急的办法，权宜之计 | |
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impartial
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| adj.(in,to)公正的，无偏见的 | |
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attentively
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| adv.聚精会神地；周到地；谛；凝神 | |
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dispenses
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| v.分配，分与；分配( dispense的第三人称单数 )；施与；配（药） | |
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mere
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| adj.纯粹的；仅仅，只不过 | |
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requisite
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| adj.需要的，必不可少的；n.必需品 | |
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remains
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| n.剩余物，残留物；遗体，遗迹 | |
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legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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dependence
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| n.依靠，依赖；信任，信赖；隶属 | |
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nominal
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| adj.名义上的；(金额、租金)微不足道的 | |
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jeopardy
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| n.危险；危难 | |
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awed
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| adj.充满敬畏的，表示敬畏的v.使敬畏，使惊惧( awe的过去式和过去分词 ) | |
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citadel
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| n.城堡；堡垒；避难所 | |
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peculiar
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| adj.古怪的，异常的；特殊的，特有的 | |
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specified
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| adj.特定的 | |
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tenor
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| n.男高音（歌手），次中音（乐器），要旨，大意 | |
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doctrine
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| n.教义；主义；学说 | |
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valid
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| adj.有确实根据的；有效的；正当的，合法的 | |
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acting
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| n.演戏，行为，假装；adj.代理的，临时的，演出用的 | |
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virtue
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| n.德行，美德；贞操；优点；功效，效力 | |
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authorize
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| v.授权，委任；批准，认可 | |
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conclusive
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| adj.最后的，结论的；确凿的，消除怀疑的 | |
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presumption
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| n.推测，可能性，冒昧，放肆，[法律]推定 | |
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constituents
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| n.选民( constituent的名词复数 )；成分；构成部分；要素 | |
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interpretation
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| n.解释，说明，描述；艺术处理 | |
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ascertain
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| vt.发现，确定，查明，弄清 | |
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proceeding
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| n.行动，进行，(pl.)会议录，学报 | |
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irreconcilable
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| adj.（指人）难和解的，势不两立的 | |
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variance
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| n.矛盾，不同 | |
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statute
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| n.成文法，法令，法规；章程，规则，条例 | |
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statutes
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| 成文法( statute的名词复数 )； 法令； 法规； 章程 | |
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opposition
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| n.反对，敌对 | |
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discretion
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| n.谨慎；随意处理 | |
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contradictory
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| adj.反驳的，反对的，抗辩的；n.正反对，矛盾对立 | |
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uncommon
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| adj.罕见的，非凡的，不平常的 | |
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uncommonly
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| adv. 稀罕(极，非常) | |
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repealing
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| 撤销，废除( repeal的现在分词 ) | |
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liquidate
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| v.偿付，清算，扫除；整理，破产 | |
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conspire
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| v.密谋，（事件等）巧合，共同导致 | |
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dictate
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| v.口授；(使)听写；指令，指示，命令 | |
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exclusion
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| n.拒绝，排除，排斥，远足，远途旅行 | |
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derived
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| vi.起源；由来；衍生；导出v.得到( derive的过去式和过去分词 )；（从…中）得到获得；源于；（从…中）提取 | |
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enjoined
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| v.命令( enjoin的过去式和过去分词 ) | |
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consonant
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| n.辅音；adj.[音]符合的 | |
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interfering
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| adj. 妨碍的 动词interfere的现在分词 | |
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derivative
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| n.派(衍)生物；adj.非独创性的，模仿他人的 | |
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converse
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| vi.谈话，谈天，闲聊；adv.相反的，相反 | |
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contravenes
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| v.取消，违反( contravene的第三人称单数 ) | |
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pretense
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| n.矫饰，做作，借口 | |
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bulwarks
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| n.堡垒( bulwark的名词复数 )；保障；支柱；舷墙 | |
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arduous
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| adj.艰苦的，费力的，陡峭的 | |
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disseminate
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| v.散布；传播 | |
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minor
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| adj.较小(少)的，较次要的；n.辅修学科；vi.辅修 | |
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concur
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| v.同意，意见一致，互助，同时发生 | |
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momentary
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| adj.片刻的，瞬息的；短暂的 | |
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inclination
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| n.倾斜；点头；弯腰；斜坡；倾度；倾向；爱好 | |
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incompatible
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| adj.不相容的，不协调的，不相配的 | |
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justifiable
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| adj.有理由的，无可非议的 | |
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violation
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| n.违反(行为)，违背(行为)，侵犯 | |
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connive
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| v.纵容；密谋 | |
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73
cabals
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| n.（政治）阴谋小集团，（尤指政治上的）阴谋( cabal的名词复数 ) | |
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authoritative
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| adj.有权威的，可相信的；命令式的；官方的 | |
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annulled
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| v.宣告无效( annul的过去式和过去分词 )；取消；使消失；抹去 | |
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binding
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| 有约束力的，有效的，应遵守的 | |
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fortitude
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| n.坚忍不拔；刚毅 | |
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guardians
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| 监护人( guardian的名词复数 )； 保护者，维护者 | |
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instigated
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| v.使（某事物）开始或发生，鼓动( instigate的过去式和过去分词 ) | |
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mitigating
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| v.减轻，缓和( mitigate的现在分词 ) | |
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immediate
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| adj.立即的；直接的，最接近的；紧靠的 | |
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mischiefs
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| 损害( mischief的名词复数 )； 危害； 胡闹； 调皮捣蛋的人 | |
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iniquitous
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| adj.不公正的；邪恶的；高得出奇的 | |
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scruples
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| n.良心上的不安( scruple的名词复数 )；顾虑，顾忌v.感到于心不安，有顾忌( scruple的第三人称单数 ) | |
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motives
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| n.动机，目的( motive的名词复数 ) | |
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injustice
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| n.非正义，不公正，不公平，侵犯（别人的）权利 | |
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meditate
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| v.想，考虑，（尤指宗教上的）沉思，冥想 | |
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displeased
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| a.不快的 | |
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sinister
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| adj.不吉利的，凶恶的，左边的 | |
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esteem
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| n.尊敬，尊重；vt.尊重，敬重；把…看作 | |
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virtuous
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| adj.有品德的，善良的，贞洁的，有效力的 | |
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disinterested
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| adj.不关心的，不感兴趣的 | |
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beget
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| v.引起；产生 | |
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fortify
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| v.强化防御，为…设防；加强，强化 | |
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inevitable
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| adj.不可避免的，必然发生的 | |
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distress
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| n.苦恼，痛苦，不舒适；不幸；vt.使悲痛 | |
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inflexible
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| adj.不可改变的，不受影响的，不屈服的 | |
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adherence
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| n.信奉，依附，坚持，固着 | |
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improper
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| adj.不适当的，不合适的，不正确的，不合礼仪的 | |
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complaisance
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| n.彬彬有礼，殷勤，柔顺 | |
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possessed
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| adj.疯狂的；拥有的，占有的 | |
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unwillingness
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| n. 不愿意，不情愿 | |
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disposition
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| n.性情，性格；意向，倾向；排列，部署 | |
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justify
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| vt.证明…正当(或有理)，为…辩护 | |
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precedents
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| 引用单元； 范例( precedent的名词复数 )； 先前出现的事例； 前例； 先例 | |
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controversies
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| 争论 | |
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folly
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| n.愚笨，愚蠢，蠢事，蠢行，傻话 | |
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swell
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| vi.膨胀，肿胀；增长，增强 | |
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laborious
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| adj.吃力的，努力的，不流畅 | |
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deductions
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| 扣除( deduction的名词复数 )； 结论； 扣除的量； 推演 | |
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apprise
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| vt.通知，告知 | |
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lucrative
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| adj.赚钱的，可获利的 | |
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113
qualified
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| adj.合格的，有资格的，胜任的，有限制的 | |
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defective
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| adj.有毛病的，有问题的，有瑕疵的 | |
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excellence
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| n.优秀，杰出，(pl.)优点，美德 | |
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celebrated
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| adj.有名的，声誉卓著的 | |
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