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It may perhaps be said that the power of preventing bad laws
includes that of preventing good ones; and may be used to the one
purpose as well as to the other. But this objection will have
little weight with those who can properly estimate the mischiefs of
that inconstancy and mutability in the laws, which form the greatest
blemish in the character and genius of our governments. They will
consider every institution calculated to restrain the excess of
law-making, and to keep things in the same state in which they
happen to be at any given period, as much more likely to do good
than harm; because it is favorable to greater stability in the
system of legislation. The injury which may possibly be done by
defeating a few good laws, will be amply compensated by the
advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the
legislative body in a free government, and the hazard to the
Executive in a trial of strength with that body, afford a
satisfactory security that the negative would generally be employed
with great caution; and there would oftener be room for a charge of
timidity than of rashness in the exercise of it. A king of Great
Britain, with all his train of sovereign attributes, and with all
the influence he draws from a thousand sources, would, at this day,
hesitate to put a negative upon the joint resolutions of the two
houses of Parliament. He would not fail to exert the utmost
resources of that influence to strangle a measure disagreeable to
him, in its progress to the throne, to avoid being reduced to the
dilemma of permitting it to take effect, or of risking the
displeasure of the nation by an opposition to the sense of the
legislative body. Nor is it probable, that he would ultimately
venture to exert his prerogatives, but in a case of manifest
propriety, or extreme necessity. All well-informed men in that
kingdom will accede to the justness of this remark. A very
considerable period has elapsed since the negative of the crown has
been exercised.
If a magistrate so powerful and so well fortified as a British
monarch, would have scruples about the exercise of the power under
consideration, how much greater caution may be reasonably expected
in a President of the United States, clothed for the short period of
four years with the executive authority of a government wholly and
purely republican?
It is evident that there would be greater danger of his not
using his power when necessary, than of his using it too often, or
too much. An argument, indeed, against its expediency, has been
drawn from this very source. It has been represented, on this
account, as a power odious in appearance, useless in practice. But
it will not follow, that because it might be rarely exercised, it
would never be exercised. In the case for which it is chiefly
designed, that of an immediate attack upon the constitutional rights
of the Executive, or in a case in which the public good was
evidently and palpably sacrificed, a man of tolerable firmness would
avail himself of his constitutional means of defense, and would
listen to the admonitions of duty and responsibility. In the former
supposition, his fortitude would be stimulated by his immediate
interest in the power of his office; in the latter, by the
probability of the sanction of his constituents, who, though they
would naturally incline to the legislative body in a doubtful case,
would hardly suffer their partiality to delude them in a very plain
case. I speak now with an eye to a magistrate possessing only a
common share of firmness. There are men who, under any
circumstances, will have the courage to do their duty at every
But the convention have pursued a mean in this business, which
will both facilitate the exercise of the power vested in this
respect in the executive magistrate, and make its efficacy to depend
on the sense of a considerable part of the legislative body.
Instead of an absolute negative, it is proposed to give the
Executive the qualified negative already described. This is a power
which would be much more readily exercised than the other. A man
who might be afraid to defeat a law by his single VETO, might not
scruple to return it for reconsideration; subject to being finally
rejected only in the event of more than one third of each house
concurring in the sufficiency of his objections. He would be
encouraged by the reflection, that if his opposition should prevail,
it would embark in it a very respectable proportion of the
legislative body, whose influence would be united with his in
supporting the propriety of his conduct in the public opinion. A
direct and categorical negative has something in the appearance of
it more harsh, and more apt to irritate, than the mere suggestion of
argumentative objections to be approved or disapproved by those to
whom they are addressed. In proportion as it would be less apt to
offend, it would be more apt to be exercised; and for this very
reason, it may in practice be found more effectual. It is to be
hoped that it will not often happen that improper views will govern
so large a proportion as two thirds of both branches of the
legislature at the same time; and this, too, in spite of the
counterposing weight of the Executive. It is at any rate far less
probable that this should be the case, than that such views should
taint the resolutions and conduct of a bare majority. A power of
this nature in the Executive, will often have a silent and
unperceived, though forcible, operation. When men, engaged in
unjustifiable pursuits, are aware that obstructions may come from a
quarter which they cannot control, they will often be restrained by
the bare apprehension of opposition, from doing what they would with
eagerness rush into, if no such external impediments were to be
This qualified negative, as has been elsewhere remarked, is in
this State vested in a council, consisting of the governor, with the
chancellor and judges of the Supreme Court, or any two of them. It
has been freely employed upon a variety of occasions, and frequently
with success. And its utility has become so apparent, that persons
who, in compiling the Constitution, were violent opposers of it,
have from experience become its declared admirers.1
I have in another place remarked, that the convention, in the
formation of this part of their plan, had departed from the model of
the constitution of this State, in favor of that of Massachusetts.
Two strong reasons may be imagined for this preference. One is
that the judges, who are to be the interpreters of the law, might
receive an improper bias, from having given a previous opinion in
their revisionary capacities; the other is that by being often
associated with the Executive, they might be induced to embark too
far in the political views of that magistrate, and thus a dangerous
combination might by degrees be cemented between the executive and
judiciary departments. It is impossible to keep the judges too
distinct from every other avocation than that of expounding the laws.
It is peculiarly dangerous to place them in a situation to be
either corrupted or influenced by the Executive.
1 Mr. Abraham Yates, a warm opponent of the plan of the
convention is of this number.


The Command of the Military and Naval Forces, and the Pardoning
Power of the Executive
From the New York Packet.
Tuesday, March 25, 1788.


To the People of the State of New York:
THE President of the United States is to be ``commander-in-chief
of the army and navy of the United States, and of the militia of the
several States WHEN CALLED INTO THE ACTUAL SERVICE of the United
States.'' The propriety of this provision is so evident in itself,
and it is, at the same time, so consonant to the precedents of the
State constitutions in general, that little need be said to explain
or enforce it. Even those of them which have, in other respects,
coupled the chief magistrate with a council, have for the most part
concentrated the military authority in him alone. Of all the cares
or concerns of government, the direction of war most peculiarly
demands those qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of the
common strength; and the power of directing and employing the
common strength, forms a usual and essential part in the definition
of the executive authority.
``The President may require the opinion, in writing, of the
principal officer in each of the executive departments, upon any
subject relating to the duties of their respective officers.'' This
I consider as a mere redundancy in the plan, as the right for which
it provides would result of itself from the office.
He is also to be authorized to grant ``reprieves and pardons for
offenses against the United States, EXCEPT IN CASES OF
IMPEACHMENT.'' Humanity and good policy conspire to dictate, that
the benign prerogative of pardoning should be as little as possible
fettered or embarrassed. The criminal code of every country
partakes so much of necessary severity, that without an easy access
to exceptions in favor of unfortunate guilt, justice would wear a
countenance too sanguinary and cruel. As the sense of
responsibility is always strongest, in proportion as it is
undivided, it may be inferred that a single man would be most ready
to attend to the force of those motives which might plead for a
mitigation of the rigor of the law, and least apt to yield to
considerations which were calculated to shelter a fit object of its
vengeance. The reflection that the fate of a fellow-creature
depended on his sole fiat, would naturally inspire
scrupulousness and caution; the dread of being accused of weakness
or connivance, would beget equal circumspection, though of a
different kind. On the other hand, as men generally derive
confidence from their numbers, they might often encourage each other
in an act of obduracy, and might be less sensible to the
apprehension of suspicion or censure for an injudicious or affected
clemency. On these accounts, one man appears to be a more eligible
dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the
President has, if I mistake not, been only contested in relation to
the crime of treason. This, it has been urged, ought to have
depended upon the assent of one, or both, of the branches of the
legislative body. I shall not deny that there are strong reasons to
be assigned for requiring in this particular the concurrence of that
body, or of a part of it. As treason is a crime levelled at the
immediate being of the society, when the laws have once ascertained
the guilt of the offender, there seems a fitness in referring the
expediency of an act of mercy towards him to the judgment of the
legislature. And this ought the rather to be the case, as the
supposition of the connivance of the Chief Magistrate ought not to
be entirely excluded. But there are also strong objections to such
a plan. It is not to be doubted, that a single man of prudence and
good sense is better fitted, in delicate conjunctures, to balance
the motives which may plead for and against the remission of the
punishment, than any numerous body whatever. It deserves particular
attention, that treason will often be connected with seditions which
embrace a large proportion of the community; as lately happened in
Massachusetts. In every such case, we might expect to see the
representation of the people tainted with the same spirit which had
given birth to the offense. And when parties were pretty equally
matched, the secret sympathy of the friends and favorers of the
condemned person, availing itself of the good-nature and weakness of
others, might frequently bestow impunity where the terror of an
example was necessary. On the other hand, when the sedition had
proceeded from causes which had inflamed the resentments of the
major party, they might often be found obstinate and inexorable,
when policy demanded a conduct of forbearance and clemency. But the
principal argument for reposing the power of pardoning in this case
to the Chief Magistrate is this: in seasons of insurrection or
rebellion, there are often critical moments, when a welltimed offer
of pardon to the insurgents or rebels may restore the tranquillity
of the commonwealth; and which, if suffered to pass unimproved, it
may never be possible afterwards to recall. The dilatory process of
convening the legislature, or one of its branches, for the purpose
of obtaining its sanction to the measure, would frequently be the
occasion of letting slip the golden opportunity. The loss of a
week, a day, an hour, may sometimes be fatal. If it should be
observed, that a discretionary power, with a view to such
contingencies, might be occasionally conferred upon the President,
it may be answered in the first place, that it is questionable,
whether, in a limited Constitution, that power could be delegated by
law; and in the second place, that it would generally be impolitic
beforehand to take any step which might hold out the prospect of
impunity. A proceeding of this kind, out of the usual course, would
be likely to be construed into an argument of timidity or of
weakness, and would have a tendency to embolden guilt.

The Treaty-Making Power of the Executive
For the Independent Journal.


To the People of the State of New York:
THE President is to have power, ``by and with the advice and
consent of the Senate, to make treaties, provided two thirds of the
senators present concur.''
Though this provision has been assailed, on different grounds,
with no small degree of vehemence, I scruple not to declare my firm
persuasion, that it is one of the best digested and most
unexceptionable parts of the plan. One ground of objection is the
trite topic of the intermixture of powers; some contending that the
President ought alone to possess the power of making treaties;
others, that it ought to have been exclusively deposited in the
Senate. Another source of objection is derived from the small
number of persons by whom a treaty may be made. Of those who
espouse this objection, a part are of opinion that the House of
Representatives ought to have been associated in the business, while
another part seem to think that nothing more was necessary than to
have substituted two thirds of ALL the members of the Senate, to two
thirds of the members PRESENT. As I flatter myself the observations
made in a preceding number upon this part of the plan must have
sufficed to place it, to a discerning eye, in a very favorable
light, I shall here content myself with offering only some
supplementary remarks, principally with a view to the objections
which have been just stated.
With regard to the intermixture of powers, I shall rely upon the
explanations already given in other places, of the true sense of the
rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive
with the Senate, in the article of treaties, is no infringement of
that rule. I venture to add, that the particular nature of the
power of making treaties indicates a peculiar propriety in that
union. Though several writers on the subject of government place
that power in the class of executive authorities, yet this is
evidently an arbitrary disposition; for if we attend carefully to
its operation, it will be found to partake more of the legislative
than of the executive character, though it does not seem strictly to
fall within the definition of either of them. The essence of the
legislative authority is to enact laws, or, in other words, to
prescribe rules for the regulation of the society; while the
execution of the laws, and the employment of the common strength,
either for this purpose or for the common defense, seem to comprise
all the functions of the executive magistrate. The power of making
treaties is, plainly, neither the one nor the other. It relates
neither to the execution of the subsisting laws, nor to the enaction
of new ones; and still less to an exertion of the common strength.
Its objects are CONTRACTS with foreign nations, which have the
force of law, but derive it from the obligations of good faith.
They are not rules prescribed by the sovereign to the subject, but
agreements between sovereign and sovereign. The power in question
seems therefore to form a distinct department, and to belong,
properly, neither to the legislative nor to the executive. The
qualities elsewhere detailed as indispensable in the management of
foreign negotiations, point out the Executive as the most fit agent
in those transactions; while the vast importance of the trust, and
the operation of treaties as laws, plead strongly for the
participation of the whole or a portion of the legislative body in
the office of making them.
However proper or safe it may be in governments where the
executive magistrate is an hereditary monarch, to commit to him the
entire power of making treaties, it would be utterly unsafe and
improper to intrust that power to an elective magistrate of four
years' duration. It has been remarked, upon another occasion, and
the remark is unquestionably just, that an hereditary monarch,
though often the oppressor of his people, has personally too much
stake in the government to be in any material danger of being
corrupted by foreign powers. But a man raised from the station of a
private citizen to the rank of chief magistrate, possessed of a
moderate or slender fortune, and looking forward to a period not
very remote when he may probably be obliged to return to the station
from which he was taken, might sometimes be under temptations to
sacrifice his duty to his interest, which it would require
superlative virtue to withstand. An avaricious man might be tempted
to betray the interests of the state to the acquisition of wealth.
An ambitious man might make his own aggrandizement, by the aid of a
foreign power, the price of his treachery to his constituents. The
history of human conduct does not warrant that exalted opinion of
human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which
concern its intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a
President of the United States.
To have intrusted the power of making treaties to the Senate
alone, would have been to relinquish the benefits of the
constitutional agency of the President in the conduct of foreign
negotiations. It is true that the Senate would, in that case, have
the option of employing him in this capacity, but they would also
have the option of letting it alone, and pique or cabal might induce
the latter rather than the former. Besides this, the ministerial
servant of the Senate could not be expected to enjoy the confidence
and respect of foreign powers in the same degree with the
constitutional representatives of the nation, and, of course, would
not be able to act with an equal degree of weight or efficacy.
While the Union would, from this cause, lose a considerable
advantage in the management of its external concerns, the people
would lose the additional security which would result from the
co-operation of the Executive. Though it would be imprudent to
confide in him solely so important a trust, yet it cannot be doubted
that his participation would materially add to the safety of the
society. It must indeed be clear to a demonstration that the joint
possession of the power in question, by the President and Senate,
would afford a greater prospect of security, than the separate
possession of it by either of them. And whoever has maturely
weighed the circumstances which must concur in the appointment of a
President, will be satisfied that the office will always bid fair to
be filled by men of such characters as to render their concurrence
in the formation of treaties peculiarly desirable, as well on the
score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to
in another part of this paper, will apply with conclusive force
against the admission of the House of Representatives to a share in
the formation of treaties. The fluctuating and, taking its future
increase into the account, the multitudinous composition of that
body, forbid us to expect in it those qualities which are essential
to the proper execution of such a trust. Accurate and comprehensive
knowledge of foreign politics; a steady and systematic adherence to
the same views; a nice and uniform sensibility to national
character; decision, SECRECY, and despatch, are incompatible with
the genius of a body so variable and so numerous. The very
complication of the business, by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a
solid objection. The greater frequency of the calls upon the House
of Representatives, and the greater length of time which it would
often be necessary to keep them together when convened, to obtain
their sanction in the progressive stages of a treaty, would be a
source of so great inconvenience and expense as alone ought to
condemn the project.
The only objection which remains to be canvassed, is that which
would substitute the proportion of two thirds of all the members
composing the senatorial body, to that of two thirds of the members
PRESENT. It has been shown, under the second head of our inquiries,
that all provisions which require more than the majority of any body
to its resolutions, have a direct tendency to embarrass the
operations of the government, and an indirect one to subject the
sense of the majority to that of the minority. This consideration
seems sufficient to determine our opinion, that the convention have
gone as far in the endeavor to secure the advantage of numbers in
the formation of treaties as could have been reconciled either with
the activity of the public councils or with a reasonable regard to
the major sense of the community. If two thirds of the whole number
of members had been required, it would, in many cases, from the
non-attendance of a part, amount in practice to a necessity of
unanimity. And the history of every political establishment in
which this principle has prevailed, is a history of impotence,
perplexity, and disorder. Proofs of this position might be adduced
from the examples of the Roman Tribuneship, the Polish Diet, and the
States-General of the Netherlands, did not an example at home render
foreign precedents unnecessary.
To require a fixed proportion of the whole body would not, in
all probability, contribute to the advantages of a numerous agency,
better then merely to require a proportion of the attending members.
The former, by making a determinate number at all times requisite
to a resolution, diminishes the motives to punctual attendance. The
latter, by making the capacity of the body to depend on a PROPORTION
which may be varied by the absence or presence of a single member,
has the contrary effect. And as, by promoting punctuality, it tends
to keep the body complete, there is great likelihood that its
resolutions would generally be dictated by as great a number in this
case as in the other; while there would be much fewer occasions of
delay. It ought not to be forgotten that, under the existing
Confederation, two members MAY, and usually DO, represent a State;
whence it happens that Congress, who now are solely invested with
ALL THE POWERS of the Union, rarely consist of a greater number of
persons than would compose the intended Senate. If we add to this,
that as the members vote by States, and that where there is only a
single member present from a State, his vote is lost, it will
justify a supposition that the active voices in the Senate, where
the members are to vote individually, would rarely fall short in
number of the active voices in the existing Congress. When, in
addition to these considerations, we take into view the co-operation
of the President, we shall not hesitate to infer that the people of
America would have greater security against an improper use of the
power of making treaties, under the new Constitution, than they now
enjoy under the Confederation. And when we proceed still one step
further, and look forward to the probable augmentation of the
Senate, by the erection of new States, we shall not only perceive
ample ground of confidence in the sufficiency of the members to
whose agency that power will be intrusted, but we shall probably be
led to conclude that a body more numerous than the Senate would be
likely to become, would be very little fit for the proper discharge
of the trust.

The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.


To the People of the State of New York:
THE President is ``to NOMINATE, and, by and with the advice and
consent of the Senate, to appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other
officers of the United States whose appointments are not otherwise
provided for in the Constitution. But the Congress may by law vest
the appointment of such inferior officers as they think proper, in
the President alone, or in the courts of law, or in the heads of
departments. The President shall have power to fill up ALL
granting commissions which shall EXPIRE at the end of their next
It has been observed in a former paper, that ``the true test of
a good government is its aptitude and tendency to produce a good
administration.'' If the justness of this observation be admitted,
the mode of appointing the officers of the United States contained
in the foregoing clauses, must, when examined, be allowed to be
entitled to particular commendation. It is not easy to conceive a
plan better calculated than this to promote a judicious choice of
men for filling the offices of the Union; and it will not need
proof, that on this point must essentially depend the character of
its administration.
It will be agreed on all hands, that the power of appointment,
in ordinary cases, ought to be modified in one of three ways. It
ought either to be vested in a single man, or in a SELECT assembly
of a moderate number; or in a single man, with the concurrence of
such an assembly. The exercise of it by the people at large will be
readily admitted to be impracticable; as waiving every other
consideration, it would leave them little time to do anything else.
When, therefore, mention is made in the subsequent reasonings of an
assembly or body of men, what is said must be understood to relate
to a select body or assembly, of the description already given. The
people collectively, from their number and from their dispersed
situation, cannot be regulated in their movements by that systematic
spirit of cabal and intrigue, which will be urged as the chief
objections to reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who
have attended to the observations made in other parts of these
papers, in relation to the appointment of the President, will, I
presume, agree to the position, that there would always be great
probability of having the place supplied by a man of abilities, at
least respectable. Premising this, I proceed to lay it down as a
rule, that one man of discernment is better fitted to analyze and
estimate the peculiar qualities adapted to particular offices, than
a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally
beget a livelier sense of duty and a more exact regard to reputation.
He will, on this account, feel himself under stronger obligations,
and more interested to investigate with care the qualities requisite
to the stations to be filled, and to prefer with impartiality the
persons who may have the fairest pretensions to them. He will have
FEWER personal attachments to gratify, than a body of men who may
each be supposed to have an equal number; and will be so much the
less liable to be misled by the sentiments of friendship and of
affection. A single well-directed man, by a single understanding,
cannot be distracted and warped by that diversity of views,
feelings, and interests, which frequently distract and warp the
resolutions of a collective body. There is nothing so apt to
agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of
our choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see
a full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any
time happen to be made under such circumstances, will of course be
the result either of a victory gained by one party over the other,
or of a compromise between the parties. In either case, the
intrinsic merit of the candidate will be too often out of sight. In
the first, the qualifications best adapted to uniting the suffrages
of the party, will be more considered than those which fit the
person for the station. In the last, the coalition will commonly
turn upon some interested equivalent: ``Give us the man we wish for
this office, and you shall have the one you wish for that.'' This
will be the usual condition of the bargain. And it will rarely
happen that the advancement of the public service will be the
primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference others, who are to be the objects of our choice or
preference. Hence, in every exercise of the power of appointing to
offices, by an assembly of men, we must expect to see a full display
of all the private and party likings and dislikes, partialities and
antipathies, attachments and animosities, which are felt by those
who compose the assembly. The choice which may at any time happen
to be made under such circumstances, will of course be the result
either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit
of the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party,
will be more considered than those which fit the person for the
station. In the last, the coalition will commonly turn upon some
interested equivalent: ``Give us the man we wish for this office,
and you shall have the one you wish for that.'' This will be the
usual condition of the bargain. And it will rarely happen that the
advancement of the public service will be the primary object either
of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference between nominating and appointing. The same motives
which would influence a proper discharge of his duty in one case,
would exist in the other. And as no man could be appointed but on
his previous nomination, every man who might be appointed would be,
in fact, his choice.
But might not his nomination be overruled? I grant it might,
yet this could only be to make place for another nomination by
himself. The person ultimately appointed must be the object of his
preference, though perhaps not in the first degree. It is also not
very probable that his nomination would often be overruled. The
Senate could not be tempted, by the preference they might feel to
another, to reject the one proposed; because they could not assure
themselves, that the person they might wish would be brought forward
by a second or by any subsequent nomination. They could not even be
certain, that a future nomination would present a candidate in any
degree more acceptable to them; and as their dissent might cast a
kind of stigma upon the individual rejected, and might have the
appearance of a reflection upon the judgment of the chief
magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
To what purpose then require the co-operation of the Senate? I
answer, that the necessity of their concurrence would have a
powerful, though, in general, a silent operation. It would be an
excellent check upon a spirit of favoritism in the President, and
would tend greatly to prevent the appointment of unfit characters
from State prejudice, from family connection, from personal
attachment, or from a view to popularity. In addition to this, it
would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the
sole disposition of offices, would be governed much more by his
private inclinations and interests, than when he was bound to submit
the propriety of his choice to the discussion and determination of a
different and independent body, and that body an entire branch of
the legislature. The possibility of rejection would be a strong
motive to care in proposing. The danger to his own reputation, and,
in the case of an elective magistrate, to his political existence,
from betraying a spirit of favoritism, or an unbecoming pursuit of
popularity, to the observation of a body whose opinion would have
great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both
ashamed and afraid to bring forward, for the most distinguished or
lucrative stations, candidates who had no other merit than that of
coming from the same State to which he particularly belonged, or of
being in some way or other personally allied to him, or of
possessing the necessary insignificance and pliancy to render them
the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by
the influence of the power of nomination, may secure the
complaisance of the Senate to his views. This supposition of
universal venalty in human nature is little less an error in
political reasoning, than the supposition of universal rectitude.
The institution of delegated power implies, that there is a portion
of virtue and honor among mankind, which may be a reasonable
foundation of confidence; and experience justifies the theory. It
has been found to exist in the most corrupt periods of the most
corrupt governments. The venalty of the British House of Commons
has been long a topic of accusation against that body, in the
country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded.
But it is as little to be doubted, that there is always a large
proportion of the body, which consists of independent and
public-spirited men, who have an influential weight in the councils
of the nation. Hence it is (the present reign not excepted) that
the sense of that body is often seen to control the inclinations of
the monarch, both with regard to men and to measures. Though it
might therefore be allowable to suppose that the Executive might
occasionally influence some individuals in the Senate, yet the
supposition, that he could in general purchase the integrity of the
whole body, would be forced and improbable. A man disposed to view
human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in
the probity of the Senate, to rest satisfied, not only that it will
be impracticable to the Executive to corrupt or seduce a majority of
its members, but that the necessity of its co-operation, in the
business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity
of the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that ``No senator or representative
shall during the time FOR WHICH HE WAS ELECTED, be appointed to any
civil office under the United States, which shall have been created,
or the emoluments whereof shall have been increased, during such
time; and no person, holding any office under the United States,
shall be a member of either house during his continuance in


The Appointing Power Continued and Other Powers of the Executive
From the New York Packet.
Friday, April 4, 1788.


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
of that of appointment, and would in a great measure avoid its evils.
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?


The Judiciary Department
From McLEAN'S Edition, New York.


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
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
According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices DURING GOOD
BEHAVIOR; which is conformable to the most approved of the State
constitutions and among the rest, to that of this State. Its
propriety having been drawn into question by the adversaries of that
plan, is no light symptom of the rage for objection, which disorders
their imaginations and judgments. The standard of good behavior for
the continuance in office of the judicial magistracy, is certainly
one of the most valuable of the modern improvements in the practice
of government. In a monarchy it is an excellent barrier to the
despotism of the prince; in a republic it is a no less excellent
barrier to the encroachments and oppressions of the representative
body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial
administration of the laws.
Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or
injure them. The Executive not only dispenses the honors, but holds
the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of
every citizen are to be regulated. The judiciary, on the contrary,
has no influence over either the sword or the purse; no direction
either of the strength or of the wealth of the society; and can
take no active resolution whatever. It may truly be said to have
neither FORCE nor WILL, but merely judgment; and must ultimately
depend upon the aid of the executive arm even for the efficacy of
its judgments.
This simple view of the matter suggests several important
consequences. It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of power1; that
it can never attack with success either of the other two; and that
all possible care is requisite to enable it to defend itself against
their attacks. It equally proves, that though individual oppression
may now and then proceed from the courts of justice, the general
liberty of the people can never be endangered from that quarter; I
mean so long as the judiciary remains truly distinct from both the
legislature and the Executive. For I agree, that ``there is no
liberty, if the power of judging be not separated from the
legislative and executive powers.''2 And it proves, in the last
place, that as liberty can have nothing to fear from the judiciary
alone, but would have every thing to fear from its union with either
of the other departments; that as all the effects of such a union
must ensue from a dependence of the former on the latter,
notwithstanding a nominal and apparent separation; that as, from
the natural feebleness of the judiciary, it is in continual jeopardy
of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its
firmness and independence as permanency in office, this quality may
therefore be justly regarded as an indispensable ingredient in its
constitution, and, in a great measure, as the citadel of the public
justice and the public security.
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex-post-facto laws, and the like.
Limitations of this kind can be preserved in practice no other way
than through the medium of courts of justice, whose duty it must be
to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular
rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has
arisen from an imagination that the doctrine would imply a
superiority of the judiciary to the legislative power. It is urged
that the authority which can declare the acts of another void, must
necessarily be superior to the one whose acts may be declared void.
As this doctrine is of great importance in all the American
constitutions, a brief discussion of the ground on which it rests
cannot be unacceptable.
There is no position which depends on clearer principles, than
that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the
representatives of the people are superior to the people themselves;
that men acting by virtue of powers, may do not only what their
powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may
be answered, that this cannot be the natural presumption, where it
is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the
people to substitute their WILL to that of their constituents. It
is far more rational to suppose, that the courts were designed to be
an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits
assigned to their authority. The interpretation of the laws is the
proper and peculiar province of the courts. A constitution is, in
fact, and must be regarded by the judges, as a fundamental law. It
therefore belongs to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative body.
If there should happen to be an irreconcilable variance between the
two, that which has the superior obligation and validity ought, of
course, to be preferred; or, in other words, the Constitution ought
to be preferred to the statute, the intention of the people to the
intention of their agents.
Nor does this conclusion by any means suppose a superiority of
the judicial to the legislative power. It only supposes that the
power of the people is superior to both; and that where the will of
the legislature, declared in its statutes, stands in opposition to
that of the people, declared in the Constitution, the judges ought
to be governed by the latter rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by
those which are not fundamental.
This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one
time, clashing in whole or in part with each other, and neither of
them containing any repealing clause or expression. In such a case,
it is the province of the courts to liquidate and fix their meaning
and operation. So far as they can, by any fair construction, be
reconciled to each other, reason and law conspire to dictate that
this should be done; where this is impracticable, it becomes a
matter of necessity to give effect to one, in exclusion of the other.
The rule which has obtained in the courts for determining their
relative validity is, that the last in order of time shall be
preferred to the first. But this is a mere rule of construction,
not derived from any positive law, but from the nature and reason of
the thing. It is a rule not enjoined upon the courts by legislative
provision, but adopted by themselves, as consonant to truth and
propriety, for the direction of their conduct as interpreters of the
law. They thought it reasonable, that between the interfering acts
of an EQUAL authority, that which was the last indication of its
will should have the preference.
But in regard to the interfering acts of a superior and
subordinate authority, of an original and derivative power, the
nature and reason of the thing indicate the converse of that rule as
proper to be followed. They teach us that the prior act of a
superior ought to be preferred to the subsequent act of an inferior
and subordinate authority; and that accordingly, whenever a
particular statute contravenes the Constitution, it will be the duty
of the judicial tribunals to adhere to the latter and disregard the
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
This independence of the judges is equally requisite to guard
the Constitution and the rights of individuals from the effects of
those ill humors, which the arts of designing men, or the influence
of particular conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the
meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community. Though I
trust the friends of the proposed Constitution will never concur
with its enemies,3 in questioning that fundamental principle of
republican government, which admits the right of the people to alter
or abolish the established Constitution, whenever they find it
inconsistent with their happiness, yet it is not to be inferred from
this principle, that the representatives of the people, whenever a
momentary inclination happens to lay hold of a majority of their
constituents, incompatible with the provisions in the existing
Constitution, would, on that account, be justifiable in a violation
of those provisions; or that the courts would be under a greater
obligation to connive at infractions in this shape, than when they
had proceeded wholly from the cabals of the representative body.
Until the people have, by some solemn and authoritative act,
annulled or changed the established form, it is binding upon
themselves collectively, as well as individually; and no
presumption, or even knowledge, of their sentiments, can warrant
their representatives in a departure from it, prior to such an act.
But it is easy to see, that it would require an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the Constitution, where legislative invasions of it had been
instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution
only, that the independence of the judges may be an essential
safeguard against the effects of occasional ill humors in the
society. These sometimes extend no farther than to the injury of
the private rights of particular classes of citizens, by unjust and
partial laws. Here also the firmness of the judicial magistracy is
of vast importance in mitigating the severity and confining the
operation of such laws. It not only serves to moderate the
immediate mischiefs of those which may have been passed, but it
operates as a check upon the legislative body in passing them; who,
perceiving that obstacles to the success of iniquitous intention are
to be expected from the scruples of the courts, are in a manner
compelled, by the very motives of the injustice they meditate, to
qualify their attempts. This is a circumstance calculated to have
more influence upon the character of our governments, than but few
may be aware of. The benefits of the integrity and moderation of
the judiciary have already been felt in more States than one; and
though they may have displeased those whose sinister expectations
they may have disappointed, they must have commanded the esteem and
applause of all the virtuous and disinterested. Considerate men, of
every description, ought to prize whatever will tend to beget or
fortify that temper in the courts: as no man can be sure that he
may not be to-morrow the victim of a spirit of injustice, by which
he may be a gainer to-day. And every man must now feel, that the
inevitable tendency of such a spirit is to sap the foundations of
public and private confidence, and to introduce in its stead
universal distrust and distress.
That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be
indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated, or by
whomsoever made, would, in some way or other, be fatal to their
necessary independence. If the power of making them was committed
either to the Executive or legislature, there would be danger of an
improper complaisance to the branch which possessed it; if to both,
there would be an unwillingness to hazard the displeasure of either;
if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult
popularity, to justify a reliance that nothing would be consulted
but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency
of the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with
great propriety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advantages of a free
government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them; and it will readily be
conceived from the variety of controversies which grow out of the
folly and wickedness of mankind, that the records of those
precedents must unavoidably swell to a very considerable bulk, and
must demand long and laborious study to acquire a competent
knowledge of them. Hence it is, that there can be but few men in
the society who will have sufficient skill in the laws to qualify
them for the stations of judges. And making the proper deductions
for the ordinary depravity of human nature, the number must be still
smaller of those who unite the requisite integrity with the
requisite knowledge. These considerations apprise us, that the
government can have no great option between fit character; and that
a temporary duration in office, which would naturally discourage
such characters from quitting a lucrative line of practice to accept
a seat on the bench, would have a tendency to throw the
administration of justice into hands less able, and less well
qualified, to conduct it with utility and dignity. In the present
circumstances of this country, and in those in which it is likely to
be for a long time to come, the disadvantages on this score would be
greater than they may at first sight appear; but it must be
confessed, that they are far inferior to those which present
themselves under the other aspects of the subject.
Upon the whole, there can be no room to doubt that the
convention acted wisely in copying from the models of those
constitutions which have established GOOD BEHAVIOR as the tenure of
their judicial offices, in point of duration; and that so far from
being blamable on this account, their plan would have been
inexcusably defective, if it had wanted this important feature of
good government. The experience of Great Britain affords an
illustrious comment on the excellence of the institution.
1 The celebrated Montesquieu, speaking of them, says: ``Of the
three powers above mentioned, the judiciary is next to
nothing.'' ``Spirit of Laws.'' vol. i., page 186.
2 Idem, page 181.
3 Vide ``Protest of the Minority of the Convention of
Pennsylvania,'' Martin's Speech, etc.


The Judiciary Continued
From MCLEAN's Edition, New York.


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
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 PERMANENT1 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.
1 Vide ``Constitution of Massachusetts,'' chapter 2, section
I, article 13.

The Powers of the Judiciary
From McLEAN's Edition, New York.


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 judicary
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
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
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,
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 inconviences 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.


The Judiciary Continued, and the Distribution of the Judicial
From McLEAN's Edition, New York.


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
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 judical 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
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
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
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 AUTHORUZE, 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
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
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 mode4; 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.
1 Article 3, sec. I.
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.


The Judiciary Continued
From McLEAN's Edition, New York.


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. 'T is 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 paper1 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
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

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