FEDERALIST No. 78

The Judiciary Department

From McLEAN'S Edition, New York.

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

pointed out. It is the less necessary to recapitulate the

considerations there urged, as the propriety of the institution in

the abstract is not disputed; the only questions which have been

raised being relative to the manner of constituting it, and to its

extent. To these points, therefore, our observations shall be

confined.

The manner of constituting it seems to embrace these several

objects: 1st. The mode of appointing the judges. 2d. The tenure by

which they are to hold their places. 3d. The partition of the

judiciary authority between different courts, and their relations to

each other.

First. As to the mode of appointing the judges; this is

the same with that of appointing the officers of the Union in

general, and has been so fully discussed in the two last numbers,

that nothing can be said here which would not be useless repetition.

Second. As to the tenure by which the judges are to hold

their places; this chiefly concerns their duration in office; the

provisions for their support; the precautions for their

responsibility.

According to the plan of the convention, all judges who may be

appointed by the United States are to hold their offices DURING GOOD

BEHAVIOR; which is conformable to the most approved of the State

constitutions and among the rest, to that of this State. Its

propriety having been drawn into question by the adversaries of that

plan, is no light symptom of the rage for objection, which disorders

their imaginations and judgments. The standard of good behavior for

the continuance in office of the judicial magistracy, is certainly

one of the most valuable of the modern improvements in the practice

of government. In a monarchy it is an excellent barrier to the

despotism of the prince; in a republic it is a no less excellent

barrier to the encroachments and oppressions of the representative

body. And it is the best expedient which can be devised in any

government, to secure a steady, upright, and impartial

administration of the laws.

Whoever attentively considers the different departments of power

must perceive, that, in a government in which they are separated

from each other, the judiciary, from the nature of its functions,

will always be the least dangerous to the political rights of the

Constitution; because it will be least in a capacity to annoy or

injure them. The Executive not only dispenses the honors, but holds

the sword of the community. The legislature not only commands the

purse, but prescribes the rules by which the duties and rights of

every citizen are to be regulated. The judiciary, on the contrary,

has no influence over either the sword or the purse; no direction

either of the strength or of the wealth of the society; and can

take no active resolution whatever. It may truly be said to have

neither FORCE nor WILL, but merely judgment; and must ultimately

depend upon the aid of the executive arm even for the efficacy of

its judgments.

This simple view of the matter suggests several important

consequences. It proves incontestably, that the judiciary is beyond

comparison the weakest of the three departments of power1; that

it can never attack with success either of the other two; and that

all possible care is requisite to enable it to defend itself against

their attacks. It equally proves, that though individual oppression

may now and then proceed from the courts of justice, the general

liberty of the people can never be endangered from that quarter; I

mean so long as the judiciary remains truly distinct from both the

legislature and the Executive. For I agree, that ``there is no

liberty, if the power of judging be not separated from the

legislative and executive powers.''2 And it proves, in the last

place, that as liberty can have nothing to fear from the judiciary

alone, but would have every thing to fear from its union with either

of the other departments; that as all the effects of such a union

must ensue from a dependence of the former on the latter,

notwithstanding a nominal and apparent separation; that as, from

the natural feebleness of the judiciary, it is in continual jeopardy

of being overpowered, awed, or influenced by its co-ordinate

branches; and that as nothing can contribute so much to its

firmness and independence as permanency in office, this quality may

therefore be justly regarded as an indispensable ingredient in its

constitution, and, in a great measure, as the citadel of the public

justice and the public security.

The complete independence of the courts of justice is peculiarly

essential in a limited Constitution. By a limited Constitution, I

understand one which contains certain specified exceptions to the

legislative authority; such, for instance, as that it shall pass no

bills of attainder, no ex-post-facto laws, and the like.

Limitations of this kind can be preserved in practice no other way

than through the medium of courts of justice, whose duty it must be

to declare all acts contrary to the manifest tenor of the

Constitution void. Without this, all the reservations of particular

rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce

legislative acts void, because contrary to the Constitution, has

arisen from an imagination that the doctrine would imply a

superiority of the judiciary to the legislative power. It is urged

that the authority which can declare the acts of another void, must

necessarily be superior to the one whose acts may be declared void.

As this doctrine is of great importance in all the American

constitutions, a brief discussion of the ground on which it rests

cannot be unacceptable.

There is no position which depends on clearer principles, than

that every act of a delegated authority, contrary to the tenor of

the commission under which it is exercised, is void. No legislative

act, therefore, contrary to the Constitution, can be valid. To deny

this, would be to affirm, that the deputy is greater than his

principal; that the servant is above his master; that the

representatives of the people are superior to the people themselves;

that men acting by virtue of powers, may do not only what their

powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the

constitutional judges of their own powers, and that the construction

they put upon them is conclusive upon the other departments, it may

be answered, that this cannot be the natural presumption, where it

is not to be collected from any particular provisions in the

Constitution. It is not otherwise to be supposed, that the

Constitution could intend to enable the representatives of the

people to substitute their WILL to that of their constituents. It

is far more rational to suppose, that the courts were designed to be

an intermediate body between the people and the legislature, in

order, among other things, to keep the latter within the limits

assigned to their authority. The interpretation of the laws is the

proper and peculiar province of the courts. A constitution is, in

fact, and must be regarded by the judges, as a fundamental law. It

therefore belongs to them to ascertain its meaning, as well as the

meaning of any particular act proceeding from the legislative body.

If there should happen to be an irreconcilable variance between the

two, that which has the superior obligation and validity ought, of

course, to be preferred; or, in other words, the Constitution ought

to be preferred to the statute, the intention of the people to the

intention of their agents.

Nor does this conclusion by any means suppose a superiority of

the judicial to the legislative power. It only supposes that the

power of the people is superior to both; and that where the will of

the legislature, declared in its statutes, stands in opposition to

that of the people, declared in the Constitution, the judges ought

to be governed by the latter rather than the former. They ought to

regulate their decisions by the fundamental laws, rather than by

those which are not fundamental.

This exercise of judicial discretion, in determining between two

contradictory laws, is exemplified in a familiar instance. It not

uncommonly happens, that there are two statutes existing at one

time, clashing in whole or in part with each other, and neither of

them containing any repealing clause or expression. In such a case,

it is the province of the courts to liquidate and fix their meaning

and operation. So far as they can, by any fair construction, be

reconciled to each other, reason and law conspire to dictate that

this should be done; where this is impracticable, it becomes a

matter of necessity to give effect to one, in exclusion of the other.

The rule which has obtained in the courts for determining their

relative validity is, that the last in order of time shall be

preferred to the first. But this is a mere rule of construction,

not derived from any positive law, but from the nature and reason of

the thing. It is a rule not enjoined upon the courts by legislative

provision, but adopted by themselves, as consonant to truth and

propriety, for the direction of their conduct as interpreters of the

law. They thought it reasonable, that between the interfering acts

of an EQUAL authority, that which was the last indication of its

will should have the preference.

But in regard to the interfering acts of a superior and

subordinate authority, of an original and derivative power, the

nature and reason of the thing indicate the converse of that rule as

proper to be followed. They teach us that the prior act of a

superior ought to be preferred to the subsequent act of an inferior

and subordinate authority; and that accordingly, whenever a

particular statute contravenes the Constitution, it will be the duty

of the judicial tribunals to adhere to the latter and disregard the

former.

It can be of no weight to say that the courts, on the pretense

of a repugnancy, may substitute their own pleasure to the

constitutional intentions of the legislature. This might as well

happen in the case of two contradictory statutes; or it might as

well happen in every adjudication upon any single statute. The

courts must declare the sense of the law; and if they should be

disposed to exercise WILL instead of JUDGMENT, the consequence would

equally be the substitution of their pleasure to that of the

legislative body. The observation, if it prove any thing, would

prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the

bulwarks of a limited Constitution against legislative

encroachments, this consideration will afford a strong argument for

the permanent tenure of judicial offices, since nothing will

contribute so much as this to that independent spirit in the judges

which must be essential to the faithful performance of so arduous a

duty.

This independence of the judges is equally requisite to guard

the Constitution and the rights of individuals from the effects of

those ill humors, which the arts of designing men, or the influence

of particular conjunctures, sometimes disseminate among the people

themselves, and which, though they speedily give place to better

information, and more deliberate reflection, have a tendency, in the

meantime, to occasion dangerous innovations in the government, and

serious oppressions of the minor party in the community. Though I

trust the friends of the proposed Constitution will never concur

with its enemies,3 in questioning that fundamental principle of

republican government, which admits the right of the people to alter

or abolish the established Constitution, whenever they find it

inconsistent with their happiness, yet it is not to be inferred from

this principle, that the representatives of the people, whenever a

momentary inclination happens to lay hold of a majority of their

constituents, incompatible with the provisions in the existing

Constitution, would, on that account, be justifiable in a violation

of those provisions; or that the courts would be under a greater

obligation to connive at infractions in this shape, than when they

had proceeded wholly from the cabals of the representative body.

Until the people have, by some solemn and authoritative act,

annulled or changed the established form, it is binding upon

themselves collectively, as well as individually; and no

presumption, or even knowledge, of their sentiments, can warrant

their representatives in a departure from it, prior to such an act.

But it is easy to see, that it would require an uncommon portion of

fortitude in the judges to do their duty as faithful guardians of

the Constitution, where legislative invasions of it had been

instigated by the major voice of the community.

But it is not with a view to infractions of the Constitution

only, that the independence of the judges may be an essential

safeguard against the effects of occasional ill humors in the

society. These sometimes extend no farther than to the injury of

the private rights of particular classes of citizens, by unjust and

partial laws. Here also the firmness of the judicial magistracy is

of vast importance in mitigating the severity and confining the

operation of such laws. It not only serves to moderate the

immediate mischiefs of those which may have been passed, but it

operates as a check upon the legislative body in passing them; who,

perceiving that obstacles to the success of iniquitous intention are

to be expected from the scruples of the courts, are in a manner

compelled, by the very motives of the injustice they meditate, to

qualify their attempts. This is a circumstance calculated to have

more influence upon the character of our governments, than but few

may be aware of. The benefits of the integrity and moderation of

the judiciary have already been felt in more States than one; and

though they may have displeased those whose sinister expectations

they may have disappointed, they must have commanded the esteem and

applause of all the virtuous and disinterested. Considerate men, of

every description, ought to prize whatever will tend to beget or

fortify that temper in the courts: as no man can be sure that he

may not be to-morrow the victim of a spirit of injustice, by which

he may be a gainer to-day. And every man must now feel, that the

inevitable tendency of such a spirit is to sap the foundations of

public and private confidence, and to introduce in its stead

universal distrust and distress.

That inflexible and uniform adherence to the rights of the

Constitution, and of individuals, which we perceive to be

indispensable in the courts of justice, can certainly not be

expected from judges who hold their offices by a temporary

commission. Periodical appointments, however regulated, or by

whomsoever made, would, in some way or other, be fatal to their

necessary independence. If the power of making them was committed

either to the Executive or legislature, there would be danger of an

improper complaisance to the branch which possessed it; if to both,

there would be an unwillingness to hazard the displeasure of either;

if to the people, or to persons chosen by them for the special

purpose, there would be too great a disposition to consult

popularity, to justify a reliance that nothing would be consulted

but the Constitution and the laws.

There is yet a further and a weightier reason for the permanency

of the judicial offices, which is deducible from the nature of the

qualifications they require. It has been frequently remarked, with

great propriety, that a voluminous code of laws is one of the

inconveniences necessarily connected with the advantages of a free

government. To avoid an arbitrary discretion in the courts, it is

indispensable that they should be bound down by strict rules and

precedents, which serve to define and point out their duty in every

particular case that comes before them; and it will readily be

conceived from the variety of controversies which grow out of the

folly and wickedness of mankind, that the records of those

precedents must unavoidably swell to a very considerable bulk, and

must demand long and laborious study to acquire a competent

knowledge of them. Hence it is, that there can be but few men in

the society who will have sufficient skill in the laws to qualify

them for the stations of judges. And making the proper deductions

for the ordinary depravity of human nature, the number must be still

smaller of those who unite the requisite integrity with the

requisite knowledge. These considerations apprise us, that the

government can have no great option between fit character; and that

a temporary duration in office, which would naturally discourage

such characters from quitting a lucrative line of practice to accept

a seat on the bench, would have a tendency to throw the

administration of justice into hands less able, and less well

qualified, to conduct it with utility and dignity. In the present

circumstances of this country, and in those in which it is likely to

be for a long time to come, the disadvantages on this score would be

greater than they may at first sight appear; but it must be

confessed, that they are far inferior to those which present

themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt that the

convention acted wisely in copying from the models of those

constitutions which have established GOOD BEHAVIOR as the tenure of

their judicial offices, in point of duration; and that so far from

being blamable on this account, their plan would have been

inexcusably defective, if it had wanted this important feature of

good government. The experience of Great Britain affords an

illustrious comment on the excellence of the institution.

PUBLIUS.

1 The celebrated Montesquieu, speaking of them, says: ``Of the

three powers above mentioned, the judiciary is next to

nothing.'' ``Spirit of Laws.'' vol. i., page 186.

2 Idem, page 181.

3 Vide ``Protest of the Minority of the Convention of

Pennsylvania,'' Martin's Speech, etc