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NEW YORK, JULY 4, 8, 1788.




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 to be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish.”* 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, are advocates, by implication at least, for the propriety of vesting the ultimate decision of all causes, in tho wbolo, or in a part of the logislativo body.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the supreme

* Article 3. Sect. 1.

court of tho United States, which is to be a separate and indepondent 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 propor; ospocially as its decisions will not bo in any manner subjoct 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. Tho 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 uncontrolable and remediless." This, upon examination, will be found to be altogether made up of falso reasoning upon misconceived fact.

In the first place, 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, 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 deduci. ble 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 supremo court; in its being composed of a distinct body of magistrates, instead

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judiziary in

of being one of the branches of the legislature, as in the gov. ernment of Great itain and in that of this state. To insist upon this point, the authors of the objection must ronounce the meaning they have laboured 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. had even a partial agency in passing bad laws, we could rarely expect a disposition to tomper and moderate them in the application. The same spirit which had operated in making them, would be too apt to influence their construction: Stilt toss could it be expected, that men who bad infringed the constitution, in the character of legislators, would be disposed to repair the breach in that of judges. Nor is this all: Every reason which recommends the tenure of good behaviour 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 å 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 inforination ; 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 jus

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tice. 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 atates who have committed the judicial power, in the last resort, not to a part of the legislaturo, 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 these 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 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 logislature, may now and then happon; but they can never be so extensive as to amount to an inconvenience, or

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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 wbich it relates; from the manner in which it is exercised; from its comparative weakness; and from its total incapacity to support its usurpa. tions 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 tbat 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 10 the distinct and independent organization of the supreme court; I proceed to consider the propriety of the power of con. Atituting inforior courts,* and the relations which will subsist between these and the former.

The power of constituting inferior courts, is evidently calcu. iated to obviate the necessity of having recourse to the supreme court in every case of federal cognizance. It is intended to enable the national governmont 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.

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* This power bas been absurdly represented as intended to abolish all tho 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 ridiculaus to imagine, that county courts were in con. templation.

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