Antifederalist No. 82
THE POWER OF THE JUDICIARY (PART 4)
Part 1: Part 2 of "Brutus'" 14th essay (from the March 6, 1788,
New-York Journal) Part 2: The final segment of the 15th essay
(March 20, 1788 New York Journal)
It may still be insisted that this clause [on appellate
jurisdiction] does not take away the trial by jury on appeals,
but that this may be provided for by the legislature, under that
paragraph which authorises them to form regulations and
restrictions for the court in the exercise of this power.
The natural meaning of this paragraph seems to be no more
than this, that Congress may declare, that certain cases shall
not be subject to the appellate jurisdiction, and they may point
out the mode in which the court shall proceed in bringing up the
causes before them, the manner of their taking evidence to
establish the facts, and the method of the court's proceeding.
But I presume they cannot take from the court the right of
deciding on the fact, any more than they can deprive them of the
right of determining on the law, when a cause is once before
them; for they have the same jurisdiction as to fact, as they
have as to the law. But supposing the Congress may under this
clause establish the trial by jury on appeals. It does not seem
to me that it will render this article much less exceptionable.
An appeal from one court and jury, to another court and jury, is
a thing altogether unknown in the laws of our state [New York],
and in most of the states in the union. A practice of this kind
prevails in the eastern states: actions are there commenced in
the inferior courts, and an appeal lies from them on the whole
merits to the superior courts. The consequence is well known.
Very few actions are determined in the lower courts; it is rare
that a case of any importance is not carried by appeal to the
supreme court, and the jurisdiction of the inferior courts is
merely nominal; this has proved so burdensome to the people in
Massachusetts, that it was one of the principal causes which
excited the insurrection in that state, in the year past. [There
are] very few sensible and moderate men in that state but what
will admit, that the inferior courts are almost entirely useless,
and answer very little purpose, save only to accumulate costs
against the poor debtors who are already unable to pay their just
debts.
But the operation of the appellate power in the supreme
judicial of the United States, would work infinitely more
mischief than any such power can do in a single state.
The trouble and expense to the parties would be endless and
intolerable. No man can say where the supreme court are to hold
their sessions; the presumption is, however, that it must be at
the seat of the general government. In this case parties must
travel many hundred miles, with their witnesses and lawyers, to
prosecute or defend a suit. No man of middling fortune, can
sustain the expense of such a law suit, and therefore the poorer
and middling class of citizens will be under the necessity of
submitting to the demands of the rich and the lordly, in cases
that will come under the cognizance of this court. If it be
said, that to prevent this oppression, the supreme court will sit
in different parts of the union, it may be replied, that this
would only make the oppression somewhat more tolerable, but by no
means so much as to give a chance of justice to the poor and
middling class. It is utterly impossible that the supreme court
can move into so many different parts of the Union, as to make it
convenient or even tolerable to attend before them with witnesses
to try causes from every part of the United States. If to avoid
the expense and inconvenience of calling witnesses from a great
distance, to give evidence before the supreme court, the
expedient of taking the deposition of witnesses in writing should
be adopted, it would not help the matter. It is of great
importance in the distribution of justice that witnesses should
be examined face to face, that the parties should have the
fairest opportunity of cross examining them in order to bring out
the whole truth. There is something in the manner in which a
witness delivers his testimony which can not be committed to
paper, and which yet very frequently gives a complexion to his
evidence, very different from what it would bear if committed to
writing. Besides, the expense of taking written testimony would
be, enormous. Those who are acquainted with the costs that arise
in the courts, where all the evidence is taken in writing, well
know that they exceed beyond all comparison those of the common
law courts, where witnesses are examined viva voce.
The costs accruing in courts generally advance with the
grade of the courts. Thus the charges attending a suit in our
common pleas, is much less than those in the supreme court, and
these are much lower than those in the court of chancery.
Indeed, the costs in the last mentioned court, are in many cases
so exorbitant and the proceedings so dilatory that the suitor had
almost as well give up his demand as to prosecute his suit. We
have just reason to suppose, that the costs in the supreme
general court will exceed either of our courts. The officers of
the general court will be more dignified than those of the
states, the lawyers of the most ability will practice in them,
and the trouble and expense of attending them will be greater.
From all these considerations, it appears, that the expense
attending suits in the supreme court will be so great, as to put
it out of the power of the poor and middling class of citizens to
contest a suit in it.
From these remarks it appears, that the administration of
justice under the powers of the judicial will be dilatory; that
it will be attended with such an heavy expense as to amount to
little short of a denial of justice to the poor and middling
class of people who in every government stand most in need of the
protection of the law; and that the trial by jury, which has so
justly been the boast of our forefathers as well as ourselves is
taken away under them.
These extraordinary powers in this court are the more
objectionable, because there does not appear the least necessity
for them, in order to secure a due and impartial distribution of
justice.
The want of ability or integrity, or a disposition to render
justice to every suitor, has not been objected against the courts
of the respective states. So far as I have been informed, the
courts of justice in all the states have ever been found ready to
administer justice with promptitude and impartiality according to
the laws of the land. It is true in some of the states, paper
money has been made, and the debtor authorised to discharge his
debts with it, at a depreciated value; in others, tender laws
have been passed, obliging the creditor to receive on execution
other property than money in discharge of his demand; and in
several of the states laws have been made unfavorable to the
creditor and tending to render property insecure.
But these evils have not happened from any defect in the
judicial departments of the states. The courts indeed are bound
to take notice of these laws, and so will the courts of the
general government be under obligation to observe the laws made
by the general legislature not repugnant to the constitution.
But so far have the judicial been from giving undue latitude of
construction to laws of this kind, that they have invariably
strongly inclined to the other side. All the acts of our
legislature, which have been charged with being of this
complexion, have uniformly received the strictest construction by
the judges, and have been extended to no cases but to such as
came within the strict letter of the law. In this way, have our
courts, I will not say evaded the law, but so limited its
operation as to work the least possible injustice. The same
thing has taken place in Rhode-Island, which has justly rendered
herself infamous, by tenaciously adhering to her paper money
system. The judges there gave a decision, in opposition to the
words of the statute, on this principle: that a construction
according to the words of it would contradict the fundamental
maxims of their laws and constitution.
No pretext therefore can be formed, from the conduct of the
judicial courts [of the states], which will justify giving such
powers to the supreme general court. For their decisions have
been such as to give just ground of confidence in them, that they
will finally adhere to the principles of rectitude; and there is
no necessity of lodging these powers in the [federal] courts, in
order to guard against the evils justly complained of, on the
subject of security of property under this constitution. For it
has provided, "that no state shall emit bills of credit, or make
any thing but gold and silver coin a tender in payment of debts."
It has also declared, that "no state shall pass any law impairing
the obligation of contracts." These prohibitions give the most
perfect security against those attacks upon property which I am
sorry to say some of the states have but too wantonly made, . . .
For "this constitution will be the supreme law of the land, and
the judges in every state will be bound thereby; any thing in the
constitution and laws of any state to the contrary
notwithstanding."
The courts of the respective states might therefore have
been securely trusted with deciding all cases between man and
man, whether citizens of the same state or of different states,
or between foreigners and citizens. Indeed, for ought I see,
every case that can arise under the constitution or laws of the
United States ought in the first instance to be tried in the
court of the state, except those which might arise b@tween
states, such as respect ambassadors, or other public ministers,
and perhaps such as call in question the claim of lands under
grants from different states. The state courts would be under
sufficient control, if writs of error were allowed from the state
courts to the supreme court of the union, according to the
practice of the courts in England and of this state, on all cases
in which the laws of the union are concerned, and perhaps to all
cases in which a foreigner is a party.
This method would preserve the good old way of administering
justice, would bring justice to every man's door, and preserve
the inestimable right of trial by jury. It would be following,
as near as our circumstances will admit, the practice of the
courts in England, which is almost the only thing I would wish to
copy in their government.
But as this system now stands, there is to be as many
inferior courts as Congress may see fit to appoint, who are to be
authorised to originate and in the first instance to try all the
cases falling under the description of this article. There is no
security that a trial by jury shall be had in these courts, but
the trial here will soon become, as it is in Massachusetts'
inferior courts, [a] mere matter of form; for an appeal may be
had to the supreme court on the whole merits. This court is to
have power to determine in law and in equity, on the law and the
fact, and this court is exalted above all other power in the
government, subject to no control; and so fixed as not to be
removable, but upon impeachment, which is much the same thing as
not to be removable at all.
To obviate the objections made to the judicial power, it has
been said, that the Congress, in forming the regulations and
exceptions which they are authorised to make respecting the
appellate jurisdiction, will make provision against all the evils
which are apprehended from this article. On this I would remark,
that this way of answering the objection made to the power,
implies an admission that the power is in itself improper without
restraint; and if so, why not restrict it in the first instance.
The just way of investigating any power given to a
government, is to examine its operation supposing it to be put in
exercise. If upon inquiry, it appears that the power, if
exercised, would be prejudicial, it ought not to be given. For to
answer objections made to a power given to a government, by
saying it will never be exercised, is really admitting that the
power ought not to be exercised, and therefore ought not to be
granted.
I have, in the course of my observation on this
constitution, affirmed and endeavored to show, that it was
calculated to abolish entirely the state governments, and to melt
down the states into one entire government, for every purpose as
well internal and local, as external and national. In this
opinion the opposers of the system have generally agreed - and
this has been uniformly denied by its advocates in public. Some
individuals indeed, among them, will confess that it has this
tendency, and scruple not to say it is what they wish; and I will
venture to predict, without the spirit of prophecy, that if it is
adopted without amendments, or some such precautions as will
insure amendments immediately after its adoption, that the same
gentlemen who have employed their talents and abilities with such
success to influence the public mind to adopt this plan, will
employ the same to persuade the people, that it will be for their
good to abolish the state governments as useless and burdensome.
Perhaps nothing could have been better conceived to
facilitate the abolition of the state governments than the
constitution of the judicial. They will be able to extend the
limits of the general government gradually, and by insensible
degrees, and to accommodate themselves to the temper of the
people. Their decisions on the meaning of the constitution will
commonly take place in cases which arise between individuals,
with which the public will not be generally acquainted. One
adjudication will form a precedent to the next, and this to a
following one. These cases will immediately affect individuals
only, so that a series of determinations will probably take place
before even the people will be informed of them. In the meantime
all the art and address of those who wish for the change will be
employed to make converts to their opinion. The people will be
told that their state officers, and state legislatures, are a
burden and expense without affording any solid advantage; that
all the laws passed by them might be equally well made by the
general legislature. If to those who will be interested in the
change, be added those who will be under their influence, and
such who will submit to almost any change of government which
they can be persuaded to believe will ease them of taxes, it is
easy to see the party who will favor the abolition of the state
governments would be far from being inconsiderable. In this
situation, the general legislature might pass one law after
another, extending the general and abridging the state
jurisdictions, and to sanction their proceedings would have a
course of decisions of the judicial to whom the constitution has
committed the power of explaining the constitution. If the
states remonstrated, the constitutional mode of deciding upon the
validity of the law is with the supreme court; and neither
people, nor state legislatures, nor the general legislature can
remove them or reverse their decrees. Had the construction of the
constitution been less [more?] with the legislature, they would
have explained it at their peril. If they exceed[ed] their
powers, or sought to find in the spirit of the constitution, more
than was expressed in the letter, the people from whom they
derived their power could remove them, . . . Indeed, I can see no
other remedy that the people can have against their rulers for
encroachments of this nature. A constitution is a compact of a
people with their rulers; if the rulers break the compact, the
people have a right and ought to remove them and do themselves
justice. But in order to enable them to do this with the greater
facility, those whom the people choose at stated periods should
have the power in the last resort to determine the sense of the
compact. If they determine contrary to the understanding of the
people, an appeal will lie to the people at the period when the
rulers are to be elected, and they will have it in their power to
remedy the evil. But when this power is lodged in the hands of
men independent of the people, and of their representatives, and
who are not constitutionally accountable for their opinions, no
way is left to control them but with a high hand and an
outstretched arm.
BRUTUS