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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.