Alexander Hamilton Papers

The Examination Number XII, [23 February 1802]

The Examination.1
Number XII.

[New York, February 23, 1802]

From the manner in which the subject was treated in the fifth and sixth numbers of The Examination, it has been doubted, whether the writer did or did not entertain a decided opinion as to the power of Congress to abolish the offices and compensations of Judges, once instituted and appointed pursuant to a law of the United States. In a matter of such high constitutional moment, it is a sacred duty to be explicit. The progress of a bill lately brought into the Senate for repealing the law of the last session, entitled, “An act to provide for the more convenient organization of the courts of the U. States,” with the avowed design of superceding the judges, who were appointed under it, has rendered the question far more serious than it was while it rested merely on the obscure suggestion of the Presidential Message.2 ’Till the experiment had proved the fact, it was hardly to have been imagined, that a majority of either house of Congress, whether from design or error, would have lent its sanction to a glaring violation of our national compact, in that article, which of all others is the most essential to the efficiency and stability of the Government; to the security of property; to the safety and liberty of person. This portentous and frightful phenomenon has, nevertheless, appeared. It frowns with malignant and deadly aspect upon our constitution. Probably before these remarks shall be read, that Constitution will be no more! It will be numbered among the numerous victims of Democratic phrenzy; and will have given another and an awful lesson to mankind—the prelude perhaps of calamities to this country, at the contemplation of which imagination shudders!

With such a prospect before us, nothing ought to be left unessayed, to open the eyes of thinking men to the destructive projects of those mountebank politicians, who have been too successful in perverting public opinion, and in cheating the people out of their confidence; who are advancing with rapid strides in the work of disorganization—the sure fore-runner of tyranny; and who, if they are not arrested in their mad career, will, ere long, precipitate our nation into all the horrors of anarchy.

It would be vanity to expect to throw much additional light upon a subject which has already exhausted the logic and eloquence of some of the ablest men of our country; yet it often happens, that the same arguments placed in a new attitudes, and accompanied with illustrations which may have escaped the ardor of a first research, serve both to fortify and to extend conviction. In the hope that this may be the case, the discussion shall be pursued with as much perspicuity and brevity, as can be attained.

The words of the constitution are, “The Judges both of the Supreme and Inferior Courts shall hold their offices during good behaviour, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”

Taking the literal import of the terms as the criterion of their true meaning, it is clear, that the tenure or duration of the office is limited by no other condition than the good behaviour of the incumbent. The words are imperative, simple, and unqualified: “The Judges shall hold their offices during good behaviour.” Independent therefore of any artificial reasoning to vary the nature and obvious sense of the words, the provision must be understood to vest in the Judge a right to the office, indefeasible but by his own misconduct.

It is consequently the duty of those who deny this right, to shew either that there are certain presumptions of intention deducible from other parts of the constitutional instrument, or certain general principles of constitutional law or policy, which ought to control the literal and substitute a different meaning.

As to presumptions of intention different from the import of the terms, there is not a syllable in the instrument from which they can be inferred; on the contrary, the latter member of the clause cited, affords very strong presumption the other way.

From the injunction, that the compensation of the Judges shall not be diminished, it is manifest, that the Constitution intends to guard the Independence of those Officers against the Legislative Department: Because, to this department alone would have belonged the power of diminishing their compensations.

When the Constitution is thus careful to tie up the Legislature, from taking away part of the compensation, is it possible to suppose that it can mean to leave that body at full liberty to take away the whole? The affirmative imputes to the Constitution the manifest absurdity of holding to the Legislature this language, “You shall not weaken the Independence of the Judicial character, by exercising the power of lessening his emolument, but you may destroy it altogether, by exercising the greater power of annihilating the recompence with the office.” No mortal can be so blind as not to see, that by such a construction, the restraint intended to be laid upon the Legislature by the injunction not to lessen the compensations, becomes absolutely nugatory.

In vain is a justification of it sought in that part of the same article which provides that “The Judicial power of the United States shall be vested in one Supreme Court and in such Inferior Courts as the Congress may from time to time ordain and establish.” The position that a discretionary power to institute Inferior Courts includes virtually a power to abolish them, if true, is nothing to the purpose. The abolition of a Court does not necessarily imply that of its Judges. In contemplation of law, the Court and the Judge are distinct things. The Court may have a legal existence, though there may be no Judge to exercise its powers. This may be the case either at the original creation of a Court, previous to the appointment of a Judge, or subsequently by his death, resignation or removal: In the last case, it could not be pretended that the Court had become extinct by the event. In like manner, the office of the Judge may subsist, though the Court in which he is to officiate may be suspended or destroyed. The duties of a Judge, as the office is defined in our Jurisprudence, are two fold—judicial and ministerial. The latter may be performed out of Court, and often without reference to it. As conservator of the peace, which every judge is ex officio, many things are done not connected with a judicial controversy, or to speak technically, with a lis pendens. This serves to illustrate the idea, that the office is something different from the Court; which is the place or situation for its principal action, yet not altogether essential to its activity. Besides, a Judge is not the less a Judge when out of Court than when in Court. The law does not suppose him to be always in Court, yet it does suppose him to be always in office; in vacation as well as in Term. He has also a property or interest in his office, which entitles him to civil actions and to recompence in damages for injuries that affect him in relation to his office; but he cannot be said to have a property or interest in the Court of which he is a member. All these considerations confirm the hypothesis, that the Court and the Judge are distinct legal entities, and therefore may exist the one independently of the other.

If it be replied, that the office is an incident to the Court, and that the abolition of the principal includes that of the incidents—The answer to this is, that the argument may be well founded as to all subsequent appointments; but not as to those previously made. Though there be no office to be filled in future, it will not follow that one already vested in an individual by a regular appointment and commission, is thereby vacated and divested. Whether this shall or shall not happen must depend on what the Constitution or the law has declared with regard to the tenure of the office. Having pronounced that this shall be during good behavior, it will preserve the office, to give effect to that tenure for the benefit of the possessor. To be consistent with itself, it will require and prescribe such a modification and construction of its own acts, as will reconcile its power over the future, with the rights which have been conferred as to the past.

Let it not be said that an office is a mere trust for public benefit, and excludes the idea of a property or a vested interest in the individual. The first part of the proposition is true—the last false. Every office combines the two ingredients of an interest in the possessor, and a trust for the public. Hence it is that the law allows the officer redress by a civil action for an injury in relation to his office, which presupposes property or interest. This interest may be defeasible at the pleasure of the government, or it may have a fixed duration, according to the constitution of the office. The idea of a vested interest holden even by a permanent tenure, so far from being incompatible with the principle that the primary and essential end of every office is the public good, may be conducive to that very end by promoting a diligent, faithful, energetic, and independent execution of the office.

But admitting, as seems to have been admitted by the speakers on both sides the question, that the judge must fall with the court, then the only consequence will be, that Congress cannot abolish a court once established. There is no rule of interpretation better settled than that different provisions in the same instrument, on the same subject, ought to be so construed, as, if possible, to comport with each other, and give a reasonable effect to all.

The provision that “The Judiciary Power shall be vested in one Superior Court and in such inferior courts as the Congress may from time to time ordain and establish” is immediately followed by this other provision, “The judges both of the Supreme and Inferior Courts shall hold their offices during good behaviour.”

The proposition, that a power to do, includes virtually, a power to undo, as applied to a legislative body, is generally but not universally true. All vested rights form an exception to the rule. In strict theory, there is no lawful or moral power to divest by a subsequent statute, a right vested in an individual by a prior: And accordingly it is familiar to persons conversant with legal studies, that the repeal of a law does not always work the revocation or divestiture of such rights.

If it be replied, that though a legislature might act immorally and wickedly in abrogating a vested right, yet the legal validity of its act for such a purpose could not be disputed; it may be answered that this odious position, in any application of it, is liable to question in every limited Constitution; (that is, in every Constitution which, in its theory, does not suppose the Whole Power of the Nation to be lodged in the legislative body;*)—and that it is certainly false in its application to a legislature, the authorities of which are defined by a positive written Constitution, as to every thing which is contrary to the actual provisions of that Constitution. To deny this is to affirm that the delegated is paramount to the constituent power. It is in fact to affirm there are no constitutional limits to the Legislative Authority.

The enquiry then must be, whether the power to abolish Inferior Courts, if implied in that of creating them, is not abridged by the clause which regulates the tenure of Judicial office.

The first thing which occurs in this investigation, is, that the power to abolish is at most, an implied or incidental power, and as such will the more readily yield to any express provision with which it may be inconsistent.

The circumstance of giving to Congress a discretionary power to establish Inferior Courts instead of establishing them specifically in the Constitution, has, with great reason, been ascribed to the impracticability of ascertaining beforehand the number and variety of Courts, which the developement of our national affairs might indicate to be proper; especially in relation to the progress of new settlements, and the creation of new states. This rendered a discretionary power to institute Courts indispensable; but it did not alike render indispensable a power to abolish those which were once instituted. It was conceived, that with intelligence, caution, and care, a plan might be pursued in the institution of Courts, which would render abolitions unnecessary. Indeed it is not presumable with regard to establishments of such solemnity and importance, making part of the organization of a principal department of the Government, that a fluctuation of plans was anticipated. It is therefore not essential to suppose, that the power to destroy was intended to be included in the power to create: Thus the words “to ordain and establish,” may be satisfied by attributing to them only the latter effect.

Consequently when the grant of the power to institute Courts, is immediately succeeded by the declaration that the Judges of those Courts shall hold their offices during good behaviour; if the exercise of the power to abolish the Courts cannot be reconciled with the actual holding or enjoyment of the office, according to the prescribed tenure, it will follow that the power to abolish is interdicted. The implied or hypothetical power to destroy the office must give way to the express and positive right of holding it during good behaviour. This is agreeable to the soundest rules of construction; the contrary is in subversion of them.

Equally in vain is a justification of the construction adopted by the advocates of the repeal, attempted to be derived from a distinction between the Supreme and Inferior Courts. The argument, that as the former is established by the Constitution, it cannot be annulled by a legislative act, though the latter which must owe their existence to such an act may by the same authority be extinguished, can afford no greater stability to the office of a Judge of the Supreme Court than to that of a Judge of an Inferior Court. The Constitution does indeed establish the Supreme Court; but it is altogether silent as to the number of the Judges. This is as fully left to legislative discretion as the institution of Inferior Courts; and the rule that a power to undo is implied in the power to do, is therefore no less applicable to the reduction of the number of the Judges of the Supreme Court than to the abolition of the Inferior Courts. If the former are not protected by the clause, which fixes the tenure of office, they are no less at the mercy of the legislature than the latter: And if that clause does protect them, its protection must be equally effectual for the Judges of the Inferior Courts. Its efficacy in either case must be founded on the principle that it operates as a restraint upon the legislative discretion; and if so, there is the like restraint in both cases, because the very same words in the very same sentence define conjunctly the tenure of the offices of the two classes of Judges. No sophistry can elude this conclusion.

It is therefore plain to a demonstration, that the doctrine which affirms the right of Congress to abolish the Judges of the Inferior Courts is absolutely fatal to the independence of the Judiciary department. The observation that so gross an abuse of power as would be implied in the abolition of the Judges of the Supreme Court, ought not to be supposed, can afford no consolation against the extreme danger of the doctrine. The terrible examples before us forbid our placing the least confidence in that delusive observation. Experience, sad experience warns us to dread every extremity—to be prepared for the worst catastrophe that can happen.

Lucius Crassus.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

* As in the Parliament of Great-Britain

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