The Judiciary Department
From McLEAN'S Edition, New York.
Wednesday, May 28, 1788


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 power[1]; 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

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

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.


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.