The English solution to this problem was to condition the holding of office upon good behavior, as enforced by the people through the writ of scire facias. 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.
There is no power above them, to control any of their decisions. 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.
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: In a monarchy it is an Federalist essay number 78 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. 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.
It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of Federalist essay number 78 people to substitute their WILL to that of their constituents. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature.
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. If there should happen to be an irreconcilable variance between the Federalist essay number 78, 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.
They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him upon his petition to use his royal name for repealing the patent in a scire facias. 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.
But much less can it be shown, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
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.
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.
It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object.
Carey and James McClellan Indianapolis: These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.
I mean, so long as the judiciary remains truly distinct from both the legislative and executive. The manner of constituting it seems to embrace these several objects: A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity.
A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.
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.
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. In England, a judge can be removed from office "upon the address of both Houses of Parliament.
Experience on a former occasion teaches us not to be too sanguine in such hopes. The interpretation of the laws is the proper and peculiar province of the courts. To these points, therefore, our observations shall be confined. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.
Good behavior tenure[ edit ] In England, although most agents of the Crown served "at the pleasure of the King," public officials were often granted a life tenure in their offices.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. Good behavior tenure[ edit ] In England, although most agents of the Crown served "at the pleasure of the King," public officials were often granted a life tenure in their offices.
Men placed in this situation will generally soon feel themselves independent of heaven itself. The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them.
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
In such a case, it is the province of the courts to liquidate and fix their meaning and operation. This simple view of the matter suggests several important consequences.A collection of eighty-five essays by Alexander Hamilton (–), James Madison (–), and John Jay (–) that explain the philosophy and defend the advantages of the U.S.
Constitution. The essays that constitute The Federalist Papers were published in various New York. The Federalist Papers Questions and Answers. The Question and Answer section for The Federalist Papers is a great resource to ask questions, find answers, and discuss the novel.
The Federalist Papers.
The Federalist 55 - The Total Number of the House of Representatives (Hamilton or Madison) The Federalist 56 - The Same Subject Continued The Federalist 78 - The Judiciary Department (Hamilton) The Federalist 79 - The Judiciary Continued.
Antifederalist Paper THE POWER OF THE JUDICIARY (PART 1) Part one is taken from the first part of the “Brutus’s” 15th essay of The New-York Journal on March 20, ; Part two is part one of his 16th of the New York Journal of April 10, Antifederalist Paper THE POWER OF THE JUDICIARY (PART 1) Part one is taken from the first part of the “Brutus’s” 15th essay of The New-York Journal on March 20, ; Part two is part one of his 16th of the New York Journal of April 10, The Federalist No.
78 The Judiciary Department Independent Journal Saturday, June 14, [Alexander Hamilton] To the People of the State of New York: WE PROCEED now to an examination of the judiciary department of the proposed government.Download