prompt:
Chapter: The Appointing Power Continued and Other Powers of the Executive
Considered.

From The Independent Journal. Wednesday, April 2, 1788.

HAMILTON

To the People of the State of New York:

IT HAS been mentioned as one of the advantages to be expected from the
co-operation of the Senate, in the business of appointments, that it
would contribute to the stability of the administration. The consent of
that body would be necessary to displace as well as to appoint. A change
of the Chief Magistrate, therefore, would not occasion so violent or
so general a revolution in the officers of the government as might be
expected, if he were the sole disposer of offices. Where a man in any
station had given satisfactory evidence of his fitness for it, a new
President would be restrained from attempting a change in favor of a
person more agreeable to him, by the apprehension that a discountenance
of the Senate might frustrate the attempt, and bring some degree of
discredit upon himself. Those who can best estimate the value of a
steady administration, will be most disposed to prize a provision which
connects the official existence of public men with the approbation or
disapprobation of that body which, from the greater permanency of its
own composition, will in all probability be less subject to inconstancy
than any other member of the government.

To this union of the Senate with the President, in the article of
appointments, it has in some cases been suggested that it would serve
to give the President an undue influence over the Senate, and in others
that it would have an opposite tendency--a strong proof that neither
suggestion is true.

To state the first in its proper form, is to refute it. It amounts to
this: the President would have an improper influence over the Senate,
because the Senate would have the power of restraining him. This is an
absurdity in terms. It cannot admit of a doubt that the entire power
of appointment would enable him much more effectually to establish a
dangerous empire over that body, than a mere power of nomination subject
to their control.

Let us take a view of the converse of the proposition: "the Senate would
influence the Executive." As I have had occasion to remark in several
other instances, the indistinctness of the objection forbids a precise
answer. In what manner is this influence to be exerted? In relation to
what objects? The power of influencing a person, in the sense in which
it is here used, must imply a power of conferring a benefit upon him.
How could the Senate confer a benefit upon the President by the manner
of employing their right of negative upon his nominations? If it be
said they might sometimes gratify him by an acquiescence in a favorite
choice, when public motives might dictate a different conduct, I answer,
that the instances in which the President could be personally interested
in the result, would be too few to admit of his being materially
affected by the compliances of the Senate. The POWER which can originate
the disposition of honors and emoluments, is more likely to attract than
to be attracted by the POWER which can merely obstruct their course. If
by influencing the President be meant restraining him, this is precisely
what must have been intended. And it has been shown that the restraint
would be salutary, at the same time that it would not be such as to
destroy a single advantage to be looked for from the uncontrolled agency
of that Magistrate. The right of nomination would produce all the (good,
without the ill.)(E1) (good of that of appointment, and would in a great
measure avoid its evils.)(E1)

Upon a comparison of the plan for the appointment of the officers of the
proposed government with that which is established by the constitution
of this State, a decided preference must be given to the former. In that
plan the power of nomination is unequivocally vested in the Executive.
And as there would be a necessity for submitting each nomination to
the judgment of an entire branch of the legislature, the circumstances
attending an appointment, from the mode of conducting it, would
naturally become matters of notoriety; and the public would be at no
loss to determine what part had been performed by the different actors.
The blame of a bad nomination would fall upon the President singly and
absolutely. The censure of rejecting a good one would lie entirely at
the door of the Senate; aggravated by the consideration of their having
counteracted the good intentions of the Executive. If an ill appointment
should be made, the Executive for nominating, and the Senate for
approving, would participate, though in different degrees, in the
opprobrium and disgrace.

The reverse of all this characterizes the manner of appointment in
this State. The council of appointment consists of from three to five
persons, of whom the governor is always one. This small body, shut up
in a private apartment, impenetrable to the public eye, proceed to the
execution of the trust committed to them. It is known that the governor
claims the right of nomination, upon the strength of some ambiguous
expressions in the constitution; but it is not known to what extent,
or in what manner he exercises it; nor upon what occasions he is
contradicted or opposed. The censure of a bad appointment, on account of
the uncertainty of its author, and for want of a determinate object, has
neither poignancy nor duration. And while an unbounded field for cabal
and intrigue lies open, all idea of responsibility is lost. The most
that the public can know, is that the governor claims the right of
nomination; that two out of the inconsiderable number of four men
can too often be managed without much difficulty; that if some of the
members of a particular council should happen to be of an uncomplying
character, it is frequently not impossible to get rid of their
opposition by regulating the times of meeting in such a manner as to
render their attendance inconvenient; and that from whatever cause it
may proceed, a great number of very improper appointments are from time
to time made. Whether a governor of this State avails himself of the
ascendant he must necessarily have, in this delicate and important part
of the administration, to prefer to offices men who are best qualified
for them, or whether he prostitutes that advantage to the advancement of
persons whose chief merit is their implicit devotion to his will, and to
the support of a despicable and dangerous system of personal influence,
are questions which, unfortunately for the community, can only be the
subjects of speculation and conjecture.

Every mere council of appointment, however constituted, will be a
conclave, in which cabal and intrigue will have their full scope. Their
number, without an unwarrantable increase of expense, cannot be large
enough to preclude a facility of combination. And as each member will
have his friends and connections to provide for, the desire of mutual
gratification will beget a scandalous bartering of votes and bargaining
for places. The private attachments of one man might easily be
satisfied; but to satisfy the private attachments of a dozen, or of
twenty men, would occasion a monopoly of all the principal employments
of the government in a few families, and would lead more directly to an
aristocracy or an oligarchy than any measure that could be contrived.
If, to avoid an accumulation of offices, there was to be a frequent
change in the persons who were to compose the council, this would
involve the mischiefs of a mutable administration in their full extent.
Such a council would also be more liable to executive influence than
the Senate, because they would be fewer in number, and would act less
immediately under the public inspection. Such a council, in fine, as
a substitute for the plan of the convention, would be productive of an
increase of expense, a multiplication of the evils which spring from
favoritism and intrigue in the distribution of public honors, a decrease
of stability in the administration of the government, and a diminution
of the security against an undue influence of the Executive. And yet
such a council has been warmly contended for as an essential amendment
in the proposed Constitution.

I could not with propriety conclude my observations on the subject of
appointments without taking notice of a scheme for which there have
appeared some, though but few advocates; I mean that of uniting the
House of Representatives in the power of making them. I shall, however,
do little more than mention it, as I cannot imagine that it is likely to
gain the countenance of any considerable part of the community. A body
so fluctuating and at the same time so numerous, can never be deemed
proper for the exercise of that power. Its unfitness will appear
manifest to all, when it is recollected that in half a century it may
consist of three or four hundred persons. All the advantages of the
stability, both of the Executive and of the Senate, would be defeated by
this union, and infinite delays and embarrassments would be occasioned.
The example of most of the States in their local constitutions
encourages us to reprobate the idea.

The only remaining powers of the Executive are comprehended in giving
information to Congress of the state of the Union; in recommending
to their consideration such measures as he shall judge expedient; in
convening them, or either branch, upon extraordinary occasions; in
adjourning them when they cannot themselves agree upon the time of
adjournment; in receiving ambassadors and other public ministers; in
faithfully executing the laws; and in commissioning all the officers of
the United States.

Except some cavils about the power of convening either house of the
legislature, and that of receiving ambassadors, no objection has been
made to this class of authorities; nor could they possibly admit of
any. It required, indeed, an insatiable avidity for censure to invent
exceptions to the parts which have been excepted to. In regard to the
power of convening either house of the legislature, I shall barely
remark, that in respect to the Senate at least, we can readily discover
a good reason for it. AS this body has a concurrent power with the
Executive in the article of treaties, it might often be necessary
to call it together with a view to this object, when it would be
unnecessary and improper to convene the House of Representatives. As to
the reception of ambassadors, what I have said in a former paper will
furnish a sufficient answer.

We have now completed a survey of the structure and powers of the
executive department, which, I have endeavored to show, combines, as far
as republican principles will admit, all the requisites to energy. The
remaining inquiry is: Does it also combine the requisites to safety,
in a republican sense--a due dependence on the people, a due
responsibility? The answer to this question has been anticipated in
the investigation of its other characteristics, and is satisfactorily
deducible from these circumstances; from the election of the President
once in four years by persons immediately chosen by the people for that
purpose; and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to
forfeiture of life and estate by subsequent prosecution in the common
course of law. But these precautions, great as they are, are not the
only ones which the plan of the convention has provided in favor of
the public security. In the only instances in which the abuse of the
executive authority was materially to be feared, the Chief Magistrate of
the United States would, by that plan, be subjected to the control of
a branch of the legislative body. What more could be desired by an
enlightened and reasonable people?

PUBLIUS

E1. These two alternate endings of this sentence appear in different
editions.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: In this final paper on presidential power, Hamilton answers some remaining objections leveled against the executive branch by the anti-federalists. He first speaks of the importance of stability in the administration of the government as a justification for requiring Senate approval to appoint or displace public officials. He then devotes most of the paper to rejecting the notion that the Senate would have undue influence over the executive in the appointment of officials. He argues that the various honors and emoluments enjoyed by the office of the presidency would more likely grant the president influence over the Senate than the other way around. The role of the Senate is to restrain the president in his powers of appointment when necessary. This does not constitute undue influence. Furthermore, by arranging the power of appointment in such a way as to require both the executive and the legislature to play a role, the constitution essentially guarantees that appointments will become matters of notoriety and thus subject to public scrutiny. Hamilton compares the appointment process called for in the Constitution to the process observed in the State of New York in order to demonstrate the dangers that would attend to entrusting the process to the complete control of a small council, whose decisions would not be subject to a legislative ratification process. Hamilton asserts that this results in favoritism and corruption dominating the process. Hamilton concludes this section by claiming that the constitutional provisions for the presidency have successfully incorporated "all the requisites of energy" without violating republican principles of liberty. According to Hamilton, the president will have enough powers to be effective but can still be held accountable by the people's representatives in the legislature.


prompt:
Chapter: The Judiciary Department

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 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
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.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton begins by telling the readers that this paper will discuss the importance of an independent judicial branch and the meaning of judicial review. The Constitution proposes the federal judges hold their office for life, subject to good behavior. Hamilton laughs at anyone who questions that life tenure is the most valuable advance in the theory of representative government. Permanency in office frees judges from political pressures and prevents invasions on judicial power by the president and Congress. The judicial branch of government is by far the weakest branch. The judicial branch posses only the power to judge, not to act, and even its judgments or decisions depend upon the executive branch to carry them out. Political rights are least threatened by the judicial branch. On occasion, the courts may unfairly treat an individual, but they, in general, can never threaten liberty. The Constitution imposes certain restrictions on the Congress designed to protect individual liberties, but unless the courts are independent and have the power to declare laws in violation of the Constitution null and void, those protections amount to nothing. The power of the Supreme Court to declare laws unconstitutional leads some people to assume that the judicial branch will be superior to the legislative branch. Hamilton examines this argument, starting with the fact that only the Constitution is fundamental law. To argue that the Constitution is not superior to the laws suggest that the representatives of the people are superior to the people and that the Constitution is inferior to the government it gave birth to. The courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it. The courts must not only place the Constitution higher than the laws passed by Congress, they must also place the intentions of the people ahead of the intentions of their representatives. This is not a matter of which branch is superior: it is simply to acknowledge that the people are superior to both. It is futile to argue that the court's decisions, in some instances, might interfere with the will of the legislature. People argue that it is the function of Congress, not the courts, to pass laws and formulate policy. This is true, but to interpret the laws and judge their constitutionality are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of the Congress. The independence of the courts is also necessary to protect the rights of individuals against the destructive actions of factions. Certain designing men may influence the legislature to formulate policies and pass laws that violate the Constitution or individual rights. The fact that the people have the right to change or abolish their government if it becomes inconsistent with their happiness is not sufficient protection; in the first place, stability requires that such changes be orderly and constitutional. A government at the mercy of groups continually plotting its downfall would be in a deplorable situation. The only way citizens can feel their rights are secure is to know that the judicial branch protects them against the people, both in and outside government, who work against their interests. Hamilton cites one other important reason for judges to have life tenure. In a free government there are bound to be many laws, some of them complex and contradictory. It takes many years to fully understand the meaning of these laws and a short term of office would discourage able and honest men from seeking an appointment to the courts; they would be reluctant to give up lucrative law practices to accept a temporary judicial appointment. Life tenure, modified by good behavior, is a superb device for assuring judicial independence and protection of individual rights.


prompt:
Chapter: 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.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton continues where he left off, claiming that next to permanency in office "nothing can contribute more to independence of the judges than a fixed provision of support." Hamilton argues that a power over a man's living is a power over his will, and therefore by removing this temptation, you once again strengthen the power of the judiciary. You cannot let the judiciary depend on the legislature for pensions because that destroys the separation between the two branches. The Constitution proves that 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." The legislature is able to increase the amount of money at times but cannot decrease the money, and therefore, does not have power to influence a judge and the separation of powers remains rigid. The other important aspect of the judicial system is the "want of removing a judge." Hamilton believes, however, that more damage is done to liberty when you try to draw a line between inability and ability than when judges can be removed more easily. Age is also a silly consideration, because who can say when someone can no longer facilitate, and learning the laws of the land is a difficult and life-long task.


prompt:
Chapter: 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.

It has also been asked, what need of the word "equity". What equitable
causes can grow out of the Constitution and laws of the United States?
There is hardly a subject of litigation between individuals, which may
not involve those ingredients of fraud, accident, trust, or hardship,
which would render the matter an object of equitable rather than of
legal jurisdiction, as the distinction is known and established in
several of the States. It is the peculiar province, for instance, of a
court of equity to relieve against what are called hard bargains: these
are contracts in which, though there may have been no direct fraud or
deceit, sufficient to invalidate them in a court of law, yet there
may have been some undue and unconscionable advantage taken of the
necessities or misfortunes of one of the parties, which a court
of equity would not tolerate. In such cases, where foreigners were
concerned on either side, it would be impossible for the federal
judicatories to do justice without an equitable as well as a legal
jurisdiction. Agreements to convey lands claimed under the grants of
different States, may afford another example of the necessity of an
equitable jurisdiction in the federal courts. This reasoning may not be
so palpable in those States where the formal and technical distinction
between LAW and EQUITY is not maintained, as in this State, where it is
exemplified by every day's practice.

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority of
the United States, and to all cases affecting ambassadors, other
public ministers, and consuls. These belong to the fourth class of
the enumerated cases, as they have an evident connection with the
preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form,
altogether, the fifth of the enumerated classes of causes proper for the
cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party.
These constitute the third of those classes.

Fifth. To controversies between two or more States; between a State and
citizens of another State; between citizens of different States. These
belong to the fourth of those classes, and partake, in some measure, of
the nature of the last.

Sixth. To cases between the citizens of the same State, claiming lands
under grants of different States. These fall within the last class,
and are the only instances in which the proposed Constitution directly
contemplates the cognizance of disputes between the citizens of the same
State.

Seventh. To cases between a State and the citizens thereof, and foreign
States, citizens, or subjects. These have been already explained to
belong to the fourth of the enumerated classes, and have been shown
to be, in a peculiar manner, the proper subjects of the national
judicature.

From this review of the particular powers of the federal judiciary, as
marked out in the Constitution, it appears that they are all conformable
to the principles which ought to have governed the structure of that
department, and which were necessary to the perfection of the system.
If some partial inconveniences should appear to be connected with the
incorporation of any of them into the plan, it ought to be recollected
that the national legislature will have ample authority to make such
exceptions, and to prescribe such regulations as will be calculated to
obviate or remove these inconveniences. The possibility of particular
mischiefs can never be viewed, by a wellinformed mind, as a solid
objection to a general principle, which is calculated to avoid general
mischiefs and to obtain general advantages.

PUBLIUS

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton introduces five principles of federal judiciary authority and then demonstrates how the proposed constitution conforms to them. Specifically, the principles describe what kinds of cases federal courts ought to have jurisdiction over. Madison contends that the federal judiciary ought to decide cases that 1) relate federal laws, 2) relate to the US Constitution, 3) involve the US government as a party in the case, 4) affect the "peace of the confederacy," and 5) involve maritime disputes. Hamilton defends the need for federal judicial authority over cases involving federal laws by arguing that the laws would not be followed if the government did not have the power to enforce them. He furthermore argues that it is necessary for judicial power to be "coextensive" with the legislature in order to ensure "uniformity in the interpretation of national laws." If each state had its own court of final jurisdiction, then "nothing but contradiction and confusion can proceed." Hamilton also argues that the federal judiciary must have jurisdiction over cases that could lead to war since "the peace of the whole ought not to be left at the disposal of a part." That is, the entire country should not be at risk of war as the result of a decision made by a particular state's court. Having established the basic principles guiding the proper extent of judicial authority, Hamilton then shows how the specific provisions of the constitution relating to the judiciary conform to these principles. He responds to objections to the federal judiciary having authority over issues of "equity," i.e. loans and financial obligations, by arguing that it is very likely for such cases to arise and involve either multiple states or foreigners, thus making necessary federal jurisdiction.


prompt:
Chapter: The Judiciary Continued, and the Distribution of the Judicial Authority.

From McLEAN's Edition, New York. Wednesday, May 28, 1788.

HAMILTON

To the People of the State of New York:

LET US now return to the partition of the judiciary authority between
different courts, and their relations to each other.

"The judicial power of the United States is" (by the plan of the
convention) "to be vested in one Supreme Court, and in such inferior
courts as the Congress may, from time to time, ordain and establish."(1)

That there ought to be one court of supreme and final jurisdiction, is a
proposition which is not likely to be contested. The reasons for it have
been assigned in another place, and are too obvious to need repetition.
The only question that seems to have been raised concerning it, is,
whether it ought to be a distinct body or a branch of the legislature.
The same contradiction is observable in regard to this matter which has
been remarked in several other cases. The very men who object to
the Senate as a court of impeachments, on the ground of an improper
intermixture of powers, advocate, by implication at least, the propriety
of vesting the ultimate decision of all causes, in the whole or in a
part of the legislative body.

The arguments, or rather suggestions, upon which this charge is founded,
are to this effect: "The authority of the proposed Supreme Court of the
United States, which is to be a separate and independent body, will be
superior to that of the legislature. The power of construing the laws
according to the spirit of the Constitution, will enable that court to
mould them into whatever shape it may think proper; especially as
its decisions will not be in any manner subject to the revision or
correction of the legislative body. This is as unprecedented as it is
dangerous. In Britain, the judicial power, in the last resort, resides in
the House of Lords, which is a branch of the legislature; and this part
of the British government has been imitated in the State constitutions
in general. The Parliament of Great Britain, and the legislatures of
the several States, can at any time rectify, by law, the exceptionable
decisions of their respective courts. But the errors and usurpations
of the Supreme Court of the United States will be uncontrollable
and remediless." This, upon examination, will be found to be made up
altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under
consideration which directly empowers the national courts to construe
the laws according to the spirit of the Constitution, or which gives
them any greater latitude in this respect than may be claimed by the
courts of every State. I admit, however, that the Constitution ought to
be the standard of construction for the laws, and that wherever there is
an evident opposition, the laws ought to give place to the Constitution.
But this doctrine is not deducible from any circumstance peculiar to
the plan of the convention, but from the general theory of a limited
Constitution; and as far as it is true, is equally applicable to
most, if not to all the State governments. There can be no objection,
therefore, on this account, to the federal judicature which will not lie
against the local judicatures in general, and which will not serve to
condemn every constitution that attempts to set bounds to legislative
discretion.

But perhaps the force of the objection may be thought to consist in the
particular organization of the Supreme Court; in its being composed of
a distinct body of magistrates, instead of being one of the branches of
the legislature, as in the government of Great Britain and that of the
State. To insist upon this point, the authors of the objection must
renounce the meaning they have labored to annex to the celebrated
maxim, requiring a separation of the departments of power. It shall,
nevertheless, be conceded to them, agreeably to the interpretation given
to that maxim in the course of these papers, that it is not violated by
vesting the ultimate power of judging in a PART of the legislative body.
But though this be not an absolute violation of that excellent rule,
yet it verges so nearly upon it, as on this account alone to be less
eligible than the mode preferred by the convention. From a body which
had even a partial agency in passing bad laws, we could rarely expect
a disposition to temper and moderate them in the application. The
same spirit which had operated in making them, would be too apt in
interpreting them; still less could it be expected that men who had
infringed the Constitution in the character of legislators, would be
disposed to repair the breach in the character of judges. Nor is this
all. Every reason which recommends the tenure of good behavior for
judicial offices, militates against placing the judiciary power, in
the last resort, in a body composed of men chosen for a limited period.
There is an absurdity in referring the determination of causes, in the
first instance, to judges of permanent standing; in the last, to those
of a temporary and mutable constitution. And there is a still greater
absurdity in subjecting the decisions of men, selected for their
knowledge of the laws, acquired by long and laborious study, to the
revision and control of men who, for want of the same advantage, cannot
but be deficient in that knowledge. The members of the legislature will
rarely be chosen with a view to those qualifications which fit men for
the stations of judges; and as, on this account, there will be great
reason to apprehend all the ill consequences of defective information,
so, on account of the natural propensity of such bodies to party
divisions, there will be no less reason to fear that the pestilential
breath of faction may poison the fountains of justice. The habit of
being continually marshalled on opposite sides will be too apt to stifle
the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those States who
have committed the judicial power, in the last resort, not to a part of
the legislature, but to distinct and independent bodies of men. Contrary
to the supposition of those who have represented the plan of the
convention, in this respect, as novel and unprecedented, it is but a
copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina, South Carolina, and
Georgia; and the preference which has been given to those models is
highly to be commended.

It is not true, in the second place, that the Parliament of Great
Britain, or the legislatures of the particular States, can rectify the
exceptionable decisions of their respective courts, in any other sense
than might be done by a future legislature of the United States. The
theory, neither of the British, nor the State constitutions, authorizes
the revisal of a judicial sentence by a legislative act. Nor is there
any thing in the proposed Constitution, more than in either of them,
by which it is forbidden. In the former, as well as in the latter, the
impropriety of the thing, on the general principles of law and reason,
is the sole obstacle. A legislature, without exceeding its province,
cannot reverse a determination once made in a particular case; though it
may prescribe a new rule for future cases. This is the principle, and it
applies in all its consequences, exactly in the same manner and extent,
to the State governments, as to the national government now under
consideration. Not the least difference can be pointed out in any view
of the subject.

It may in the last place be observed that the supposed danger of
judiciary encroachments on the legislative authority, which has been
upon many occasions reiterated, is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may
now and then happen; but they can never be so extensive as to amount to
an inconvenience, or in any sensible degree to affect the order of the
political system. This may be inferred with certainty, from the general
nature of the judicial power, from the objects to which it relates, from
the manner in which it is exercised, from its comparative weakness, and
from its total incapacity to support its usurpations by force. And the
inference is greatly fortified by the consideration of the important
constitutional check which the power of instituting impeachments in one
part of the legislative body, and of determining upon them in the other,
would give to that body upon the members of the judicial department.
This is alone a complete security. There never can be danger that the
judges, by a series of deliberate usurpations on the authority of the
legislature, would hazard the united resentment of the body intrusted
with it, while this body was possessed of the means of punishing their
presumption, by degrading them from their stations. While this ought to
remove all apprehensions on the subject, it affords, at the same time,
a cogent argument for constituting the Senate a court for the trial of
impeachments.

Having now examined, and, I trust, removed the objections to the
distinct and independent organization of the Supreme Court, I proceed to
consider the propriety of the power of constituting inferior courts,(2)
and the relations which will subsist between these and the former.

The power of constituting inferior courts is evidently calculated to
obviate the necessity of having recourse to the Supreme Court in every
case of federal cognizance. It is intended to enable the national
government to institute or authorize, in each State or district of the
United States, a tribunal competent to the determination of matters of
national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished
by the instrumentality of the State courts? This admits of different
answers. Though the fitness and competency of those courts should
be allowed in the utmost latitude, yet the substance of the power in
question may still be regarded as a necessary part of the plan, if it
were only to empower the national legislature to commit to them the
cognizance of causes arising out of the national Constitution. To confer
the power of determining such causes upon the existing courts of the
several States, would perhaps be as much "to constitute tribunals," as
to create new courts with the like power. But ought not a more direct
and explicit provision to have been made in favor of the State courts?
There are, in my opinion, substantial reasons against such a provision:
the most discerning cannot foresee how far the prevalency of a
local spirit may be found to disqualify the local tribunals for the
jurisdiction of national causes; whilst every man may discover, that
courts constituted like those of some of the States would be improper
channels of the judicial authority of the Union. State judges, holding
their offices during pleasure, or from year to year, will be too
little independent to be relied upon for an inflexible execution of the
national laws. And if there was a necessity for confiding the original
cognizance of causes arising under those laws to them there would be
a correspondent necessity for leaving the door of appeal as wide as
possible. In proportion to the grounds of confidence in, or distrust
of, the subordinate tribunals, ought to be the facility or difficulty
of appeals. And well satisfied as I am of the propriety of the appellate
jurisdiction, in the several classes of causes to which it is extended
by the plan of the convention. I should consider every thing calculated
to give, in practice, an unrestrained course to appeals, as a source of
public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful,
to divide the United States into four or five or half a dozen districts;
and to institute a federal court in each district, in lieu of one in
every State. The judges of these courts, with the aid of the State
judges, may hold circuits for the trial of causes in the several parts
of the respective districts. Justice through them may be administered
with ease and despatch; and appeals may be safely circumscribed within a
narrow compass. This plan appears to me at present the most eligible of
any that could be adopted; and in order to it, it is necessary that the
power of constituting inferior courts should exist in the full extent in
which it is to be found in the proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want
of such a power would have been a great defect in the plan. Let us
now examine in what manner the judicial authority is to be distributed
between the supreme and the inferior courts of the Union.

The Supreme Court is to be invested with original jurisdiction, only "in
cases affecting ambassadors, other public ministers, and consuls, and
those in which A STATE shall be a party." Public ministers of every
class are the immediate representatives of their sovereigns. All
questions in which they are concerned are so directly connected with
the public peace, that, as well for the preservation of this, as out of
respect to the sovereignties they represent, it is both expedient and
proper that such questions should be submitted in the first instance
to the highest judicatory of the nation. Though consuls have not in
strictness a diplomatic character, yet as they are the public agents
of the nations to which they belong, the same observation is in a great
measure applicable to them. In cases in which a State might happen to be
a party, it would ill suit its dignity to be turned over to an inferior
tribunal.

Though it may rather be a digression from the immediate subject of this
paper, I shall take occasion to mention here a supposition which has
excited some alarm upon very mistaken grounds. It has been suggested
that an assignment of the public securities of one State to the citizens
of another, would enable them to prosecute that State in the federal
courts for the amount of those securities; a suggestion which the
following considerations prove to be without foundation.

It is inherent in the nature of sovereignty not to be amenable to the
suit of an individual without its consent. This is the general sense,
and the general practice of mankind; and the exemption, as one of the
attributes of sovereignty, is now enjoyed by the government of every
State in the Union. Unless, therefore, there is a surrender of this
immunity in the plan of the convention, it will remain with the States,
and the danger intimated must be merely ideal. The circumstances
which are necessary to produce an alienation of State sovereignty
were discussed in considering the article of taxation, and need not be
repeated here. A recurrence to the principles there established will
satisfy us, that there is no color to pretend that the State governments
would, by the adoption of that plan, be divested of the privilege of
paying their own debts in their own way, free from every constraint
but that which flows from the obligations of good faith. The contracts
between a nation and individuals are only binding on the conscience
of the sovereign, and have no pretensions to a compulsive force. They
confer no right of action, independent of the sovereign will. To what
purpose would it be to authorize suits against States for the debts they
owe? How could recoveries be enforced? It is evident, it could not be
done without waging war against the contracting State; and to ascribe
to the federal courts, by mere implication, and in destruction of a
pre-existing right of the State governments, a power which would involve
such a consequence, would be altogether forced and unwarrantable.

Let us resume the train of our observations. We have seen that the
original jurisdiction of the Supreme Court would be confined to two
classes of causes, and those of a nature rarely to occur. In all other
cases of federal cognizance, the original jurisdiction would appertain
to the inferior tribunals; and the Supreme Court would have nothing more
than an appellate jurisdiction, "with such exceptions and under such
regulations as the Congress shall make."

The propriety of this appellate jurisdiction has been scarcely called
in question in regard to matters of law; but the clamors have been loud
against it as applied to matters of fact. Some well-intentioned men in
this State, deriving their notions from the language and forms which
obtain in our courts, have been induced to consider it as an implied
supersedure of the trial by jury, in favor of the civil-law mode of
trial, which prevails in our courts of admiralty, probate, and chancery.
A technical sense has been affixed to the term "appellate," which, in
our law parlance, is commonly used in reference to appeals in the course
of the civil law. But if I am not misinformed, the same meaning would
not be given to it in any part of New England. There an appeal from one
jury to another, is familiar both in language and practice, and is even
a matter of course, until there have been two verdicts on one side. The
word "appellate," therefore, will not be understood in the same sense in
New England as in New York, which shows the impropriety of a technical
interpretation derived from the jurisprudence of any particular State.
The expression, taken in the abstract, denotes nothing more than the
power of one tribunal to review the proceedings of another, either as
to the law or fact, or both. The mode of doing it may depend on ancient
custom or legislative provision (in a new government it must depend on
the latter), and may be with or without the aid of a jury, as may be
judged advisable. If, therefore, the re-examination of a fact once
determined by a jury, should in any case be admitted under the proposed
Constitution, it may be so regulated as to be done by a second jury,
either by remanding the cause to the court below for a second trial of
the fact, or by directing an issue immediately out of the Supreme Court.

But it does not follow that the re-examination of a fact once
ascertained by a jury, will be permitted in the Supreme Court. Why may
not it be said, with the strictest propriety, when a writ of error is
brought from an inferior to a superior court of law in this State, that
the latter has jurisdiction of the fact as well as the law? It is true
it cannot institute a new inquiry concerning the fact, but it takes
cognizance of it as it appears upon the record, and pronounces the law
arising upon it.(3) This is jurisdiction of both fact and law; nor is
it even possible to separate them. Though the common-law courts of this
State ascertain disputed facts by a jury, yet they unquestionably have
jurisdiction of both fact and law; and accordingly when the former is
agreed in the pleadings, they have no recourse to a jury, but proceed
at once to judgment. I contend, therefore, on this ground, that the
expressions, "appellate jurisdiction, both as to law and fact," do not
necessarily imply a re-examination in the Supreme Court of facts decided
by juries in the inferior courts.

The following train of ideas may well be imagined to have influenced
the convention, in relation to this particular provision. The appellate
jurisdiction of the Supreme Court (it may have been argued) will extend
to causes determinable in different modes, some in the course of the
COMMON LAW, others in the course of the CIVIL LAW. In the former,
the revision of the law only will be, generally speaking, the proper
province of the Supreme Court; in the latter, the re-examination of the
fact is agreeable to usage, and in some cases, of which prize causes are
an example, might be essential to the preservation of the public peace.
It is therefore necessary that the appellate jurisdiction should, in
certain cases, extend in the broadest sense to matters of fact. It will
not answer to make an express exception of cases which shall have been
originally tried by a jury, because in the courts of some of the States
all causes are tried in this mode(4); and such an exception would
preclude the revision of matters of fact, as well where it might be
proper, as where it might be improper. To avoid all inconveniencies,
it will be safest to declare generally, that the Supreme Court shall
possess appellate jurisdiction both as to law and fact, and that this
jurisdiction shall be subject to such exceptions and regulations as the
national legislature may prescribe. This will enable the government
to modify it in such a manner as will best answer the ends of public
justice and security.

This view of the matter, at any rate, puts it out of all doubt that
the supposed abolition of the trial by jury, by the operation of this
provision, is fallacious and untrue. The legislature of the United
States would certainly have full power to provide, that in appeals to
the Supreme Court there should be no re-examination of facts where they
had been tried in the original causes by juries. This would certainly
be an authorized exception; but if, for the reason already intimated, it
should be thought too extensive, it might be qualified with a limitation
to such causes only as are determinable at common law in that mode of
trial.

The amount of the observations hitherto made on the authority of the
judicial department is this: that it has been carefully restricted
to those causes which are manifestly proper for the cognizance of the
national judicature; that in the partition of this authority a very
small portion of original jurisdiction has been preserved to the Supreme
Court, and the rest consigned to the subordinate tribunals; that the
Supreme Court will possess an appellate jurisdiction, both as to law and
fact, in all the cases referred to them, both subject to any exceptions
and regulations which may be thought advisable; that this appellate
jurisdiction does, in no case, abolish the trial by jury; and that an
ordinary degree of prudence and integrity in the national councils
will insure us solid advantages from the establishment of the proposed
judiciary, without exposing us to any of the inconveniences which have
been predicted from that source.

PUBLIUS

1. Article 3, Sec. 1.

2. This power has been absurdly represented as intended to abolish
all the county courts in the several States, which are commonly called
inferior courts. But the expressions of the Constitution are, to
constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident
design of the provision is to enable the institution of local courts,
subordinate to the Supreme, either in States or larger districts. It is
ridiculous to imagine that county courts were in contemplation.

3. This word is composed of JUS and DICTIO, juris dictio or a speaking
and pronouncing of the law.

4. I hold that the States will have concurrent jurisdiction with the
subordinate federal judicatories, in many cases of federal cognizance,
as will be explained in my next paper.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton describes the separation of judicial authority among the different types of courts and the relationship between these courts. The part of the Constitution in question is Article 3, Section 1, which states, "The judicial power of the United States is to be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish." Hamilton begins this paper by summarizing the anti-federalist critique of this constitutional provision. The anti-federalists feared that the supreme court would have the power to interpret laws passed by congress according to the "spirit" of the constitution. This would then lead to the court being able to "mould" laws passed by congress "into whatever shape it may think proper." Such a power would make the Supreme Court superior to the national legislature. However, Hamilton argues that "there is not a syllable in the plan, which directly empowers the national courts to construe the laws according to the spirit of the constitution." That is, the federal courts will not have unlimited power to interpret laws as they see fit. Hamilton suggests further that the American people need not be concerned about the Supreme Court being separate from the legislature. He argues that the legislature, which makes the laws, cannot be trusted to interpret the laws impartially: "From a body which had had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application." Furthermore, legislators are unlikely to have the same level of legal expertise as a distinct body of magistrates would. Finally, the legislature is liable to be divided by political factions, making it even less likely that it will act impartially in deciding legal matters. Hamilton argues further that the judiciary is a relatively weak branch of government and therefore poses very little threat to liberty. Unlike the other branches of government, the judiciary cannot "support its usurpations by force." All it can do is declare its judgment. Plus, the judges are themselves personally subject to impeachment and removal from office by the legislature. Hamilton then discusses the creation of inferior federal courts. It had been objected that state courts could perform this function; however, Hamilton contends that "a local spirit" may bias the opinions of state judges. Hamilton also clarifies which cases will fall under the Supreme Court's "original jurisdiction," i.e. the cases that must go directly to the Supreme Court to be decided. Such cases are limited to those "affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party." Thus, in most instances, the Supreme Court will only be a court of appeals. Finally, Hamilton addresses concerns that the Supreme Court's role as an appellate court will abolish the trial by jury. It had been feared that if the Supreme Court could hear appeals and base its decisions on the facts of the case, instead of just legal theory, then trial juries would essentially become powerless.


prompt:
Chapter: The Judiciary Continued.

From McLEAN's Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

THE erection of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of intricacy
and nicety; and these may, in a particular manner, be expected to flow
from the establishment of a constitution founded upon the total or
partial incorporation of a number of distinct sovereignties. 'Tis time
only that can mature and perfect so compound a system, can liquidate
the meaning of all the parts, and can adjust them to each other in a
harmonious and consistent WHOLE.

Such questions, accordingly, have arisen upon the plan proposed by the
convention, and particularly concerning the judiciary department. The
principal of these respect the situation of the State courts in regard
to those causes which are to be submitted to federal jurisdiction.
Is this to be exclusive, or are those courts to possess a concurrent
jurisdiction? If the latter, in what relation will they stand to the
national tribunals? These are inquiries which we meet with in the mouths
of men of sense, and which are certainly entitled to attention.

The principles established in a former paper(1) teach us that the States
will retain all pre-existing authorities which may not be exclusively
delegated to the federal head; and that this exclusive delegation can
only exist in one of three cases: where an exclusive authority is, in
express terms, granted to the Union; or where a particular authority is
granted to the Union, and the exercise of a like authority is prohibited
to the States; or where an authority is granted to the Union, with which
a similar authority in the States would be utterly incompatible. Though
these principles may not apply with the same force to the judiciary as
to the legislative power, yet I am inclined to think that they are, in
the main, just with respect to the former, as well as the latter. And
under this impression, I shall lay it down as a rule, that the State
courts will retain the jurisdiction they now have, unless it appears to
be taken away in one of the enumerated modes.

The only thing in the proposed Constitution, which wears the appearance
of confining the causes of federal cognizance to the federal courts,
is contained in this passage: "THE JUDICIAL POWER of the United States
shall be vested in one Supreme Court, and in such inferior courts as
the Congress shall from time to time ordain and establish." This might
either be construed to signify, that the supreme and subordinate courts
of the Union should alone have the power of deciding those causes to
which their authority is to extend; or simply to denote, that the organs
of the national judiciary should be one Supreme Court, and as many
subordinate courts as Congress should think proper to appoint; or in
other words, that the United States should exercise the judicial power
with which they are to be invested, through one supreme tribunal, and
a certain number of inferior ones, to be instituted by them. The first
excludes, the last admits, the concurrent jurisdiction of the State
tribunals; and as the first would amount to an alienation of State power
by implication, the last appears to me the most natural and the most
defensible construction.

But this doctrine of concurrent jurisdiction is only clearly applicable
to those descriptions of causes of which the State courts have previous
cognizance. It is not equally evident in relation to cases which may
grow out of, and be peculiar to, the Constitution to be established; for
not to allow the State courts a right of jurisdiction in such cases, can
hardly be considered as the abridgment of a pre-existing authority. I
mean not therefore to contend that the United States, in the course
of legislation upon the objects intrusted to their direction, may not
commit the decision of causes arising upon a particular regulation to
the federal courts solely, if such a measure should be deemed expedient;
but I hold that the State courts will be divested of no part of their
primitive jurisdiction, further than may relate to an appeal; and I
am even of opinion that in every case in which they were not expressly
excluded by the future acts of the national legislature, they will of
course take cognizance of the causes to which those acts may give birth.
This I infer from the nature of judiciary power, and from the general
genius of the system. The judiciary power of every government looks
beyond its own local or municipal laws, and in civil cases lays hold
of all subjects of litigation between parties within its jurisdiction,
though the causes of dispute are relative to the laws of the most
distant part of the globe. Those of Japan, not less than of New York,
may furnish the objects of legal discussion to our courts. When in
addition to this we consider the State governments and the national
governments, as they truly are, in the light of kindred systems, and as
parts of ONE WHOLE, the inference seems to be conclusive, that the State
courts would have a concurrent jurisdiction in all cases arising under
the laws of the Union, where it was not expressly prohibited.

Here another question occurs: What relation would subsist between the
national and State courts in these instances of concurrent jurisdiction?
I answer, that an appeal would certainly lie from the latter, to the
Supreme Court of the United States. The Constitution in direct terms
gives an appellate jurisdiction to the Supreme Court in all the
enumerated cases of federal cognizance in which it is not to have an
original one, without a single expression to confine its operation to
the inferior federal courts. The objects of appeal, not the tribunals
from which it is to be made, are alone contemplated. From this
circumstance, and from the reason of the thing, it ought to be construed
to extend to the State tribunals. Either this must be the case, or the
local courts must be excluded from a concurrent jurisdiction in matters
of national concern, else the judiciary authority of the Union may be
eluded at the pleasure of every plaintiff or prosecutor. Neither of
these consequences ought, without evident necessity, to be involved; the
latter would be entirely inadmissible, as it would defeat some of the
most important and avowed purposes of the proposed government, and would
essentially embarrass its measures. Nor do I perceive any foundation for
such a supposition. Agreeably to the remark already made, the national
and State systems are to be regarded as ONE WHOLE. The courts of the
latter will of course be natural auxiliaries to the execution of the
laws of the Union, and an appeal from them will as naturally lie to that
tribunal which is destined to unite and assimilate the principles of
national justice and the rules of national decisions. The evident aim
of the plan of the convention is, that all the causes of the specified
classes shall, for weighty public reasons, receive their original or
final determination in the courts of the Union. To confine, therefore,
the general expressions giving appellate jurisdiction to the Supreme
Court, to appeals from the subordinate federal courts, instead of
allowing their extension to the State courts, would be to abridge the
latitude of the terms, in subversion of the intent, contrary to every
sound rule of interpretation.

But could an appeal be made to lie from the State courts to the
subordinate federal judicatories? This is another of the questions
which have been raised, and of greater difficulty than the former. The
following considerations countenance the affirmative. The plan of the
convention, in the first place, authorizes the national legislature "to
constitute tribunals inferior to the Supreme Court."(2) It declares, in
the next place, that "the JUDICIAL POWER of the United States shall be
vested in one Supreme Court, and in such inferior courts as Congress
shall ordain and establish"; and it then proceeds to enumerate the cases
to which this judicial power shall extend. It afterwards divides the
jurisdiction of the Supreme Court into original and appellate, but
gives no definition of that of the subordinate courts. The only outlines
described for them, are that they shall be "inferior to the Supreme
Court," and that they shall not exceed the specified limits of the
federal judiciary. Whether their authority shall be original or
appellate, or both, is not declared. All this seems to be left to the
discretion of the legislature. And this being the case, I perceive at
present no impediment to the establishment of an appeal from the State
courts to the subordinate national tribunals; and many advantages
attending the power of doing it may be imagined. It would diminish the
motives to the multiplication of federal courts, and would admit of
arrangements calculated to contract the appellate jurisdiction of the
Supreme Court. The State tribunals may then be left with a more entire
charge of federal causes; and appeals, in most cases in which they may
be deemed proper, instead of being carried to the Supreme Court, may be
made to lie from the State courts to district courts of the Union.

PUBLIUS

1. No. 31.

2. Sec. 8, Art. 1.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton addresses concerns that the proposed constitution would deprive state judicial systems of their authority. Hamilton argues that the states will "retain all pre-existing authorities which may not be exclusively delegated to the federal head." That is, the default is that state courts will have the same powers under the proposed constitution as they did under the Articles. It is only particular powers, explicitly listed in the Constitution, that are granted solely to the federal government and denied to the states. Hamilton furthermore discusses the doctrine of "concurrent jurisdiction," i.e. legal cases that both federal courts and state courts have the authority to decide. Essentially, unless a case falls into a category specifically listed in the Constitution as falling under the sole authority of the national courts, all cases fall under the jurisdiction of the state courts. The only power the federal courts have over the states is the power of appeal; that is, citizens can appeal state court decisions to federal courts. Hamilton stresses throughout this paper the importance of conceiving of the state and federal courts as part of "one whole." The Constitution sought to create a coherent legal system that would ensure laws would be enforced uniformly throughout the country. Thus, the Constitution would not take away the powers of the state courts, as the anti-federalists feared, but rather integrate them into a cohesive national system.