Federalist No. 78, Part V: Precedent

In addition to the application of highly pragmatic reasoning – a favored approach of Alexander Hamilton when addressing a public forum – Federalist No. 78 also sought to convince its intended audience of the soundness of the judicial branch described by the proposed constitution through the use of that great enhancer of argument in the Anglo-American cultural tradition, precedent. In this mode, however, Hamilton displayed a remarkably restrained sensibility. Rather than rely on the power of cited example and its significance within the English Common Law tradition to overawe his readers into accepting the Framer’s formulation of a federal judiciary, he proceeded instead to sparingly deploy brief and often oblique references to both British and American models for the various structures and procedures he was attempting to promote. Likely this was an admission to circumstance as much as it was a stylistic choice. Though many of the various states had chosen to essentially preserve their existing colonial-era high courts during the transition to independence after 1776 – apparent evidence of the conservative foundations of the developing American jurisprudence – the emerging relationships between state judiciaries, legislatures, constitutions, and populations did not compare favorably to the dynamic between the federal courts and the proposed constitution that the Framers envisioned and that Hamilton explicitly favored. To put it another way, precedent favored Hamilton’s case in some regards, but in others it ground against his overarching objective of convincing his countrymen that the federal judiciary needed to be solely responsible for interpreting the fundamental governing document of the United States of America.  

The practice of permitting judicial appointees to serve for life during good behavior – favored by the Framers and by Hamilton – was one of the few areas wherein the application of precedent clearly favored the proposed constitution. While Hamilton very capably– though, as previously discussed, somewhat haphazardly – asserted in the text of No. 78 all of the very practical reasons that the custom of life tenure ultimately served to benefit the American people, tradition also weighed in favor of seeing the same practice carried forward. Paragraphs five and twenty-one of the selfsame essay made exactly this point, in both instances by pointing to the experience of the American republic’s late colonial overlord. “The standard of good behavior for the continuance in office of the Judicial magistracy,” the former proclaimed,

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.

Begging forgiveness for quoting the latter half of this passage a second time in this series, consider some of the implications of what Hamilton has said. While many of the existing state constitutions, as discussed in a previous entry, did mandate the service of judicial appointees during good behavior, the “most valuable of modern improvements” to which Hamilton was referring unquestionably predated the existence of those early republican charters. The reference to monarchy and to the “despotism of the Prince” make this quite clear, and indicates instead that No. 78 was referring to the British tradition that the American states had so lately appeared to reject.         

Judicial independence, as guaranteed by life tenure and service during good behavior, was, by the latter half of the 18^th century, a well-worn principle of British legal and political culture. As decreed by Section III of the Act of Settlement (1701) – a statute otherwise concerned with establishing a Protestant line of succession to the throne of England – judges commissioned by the Crown were to serve, “Quam diu se bene Gesserint and their Salaries ascertained and established but upon the Address of both Houses of Parliament it may be lawfull to remove them.” Translated into English, the Latin phrase cited above reads “as long as he shall behave himself well,” and in practice was meant to ensure that the appointed justices could not be arbitrarily removed unless they had clearly abused the authority of their office. Prior to the passage of the Act of Parliament containing this clause, the Crown not infrequently used the courts to enforce political and/or religious directives and dismissed justices who refused to cooperate. The monarchs of the House of Stuart – the royal house of England between 1603 and 1714 – were particularly notorious for their highly partisan relationship with the English judiciary, as certain notable instances attest.

Charles I (1600-1649), for example, showed little compunction about using either the Court of High Commission – the highest religious court in England – or the Star Chamber – a court of equity that became notorious for its arbitrary rulings – to punish religious dissenters in the 1630s or to make law without the aid of Parliament. Because the justices of these two bodies served at the pleasure of the Crown, they had neither the ability nor the inclination to object to the instructions they were given. James II (1633-1701) developed a similarly dictatorial dynamic with some of the justices commissioned under his authority when, in 1686, he sought a favorable ruling on his claimed authority to dispense with – or ignore – Acts of Parliament. In violation of the terms of the Test Acts of 1673 and 1678 – which declared that all persons filling either military or civilian offices were required to recognize the sovereign as the rightful head of the Church of England – James had attempted to appoint a number of Roman Catholics as regimental commanders. When Parliament objected to what its members perceived as an unjustifiable overextension of the royal prerogative and the question was put to the courts, the king proceeded to dismiss a number of justices – as well as the Solicitor General, Heneage Finch (1649-1719) – until he received the desired result. The inclusion of the cited clause within the Act of Settlement – was a direct reaction to these kinds of heavy-handed policies on the part of the Crown. Along with the Bill of Rights of 1689, the Act essentially served as the culmination of the Glorious Revolution (1688) and the civil and military conflicts of the 17^th century by effectively repudiating the authoritarianism of the Stuart dynasty and marking the start of a new era in the history of English – and soon enough British – legal and political culture.    

There can be no doubt that certain of Hamilton’s audience favored a complete rejection of all things English, and sought instead to set the nascent United States upon a more abstract foundation of classical republicanism. These individuals – led by devotees of the European Enlightenment like Thomas Jefferson – would thus likely have responded poorly to assertions of the primacy of English historical example. That being said, a great many Americans in the late 1780s, who have lived through and participated in the Revolution, tended toward a more conservative frame of mind. Despite the political conflicts that Parliament had aroused in the American colonies during the 1760s and 1770s, many participants in the resulting protests and resistance movements maintained an ardent and deep-seated affection for British culture, history, and legal norms. This sense of affection did not wholly dissipate once the United States firmly secured its independence in the early 1780s, and so many of the people Hamilton addressed himself to in Federalist No. 78 would have responded positively to invocations of British precedents for proposed American initiatives. Thus, when paragraph five of said essay claimed that life tenure during good behavior was “one of the most valuable of the modern improvements in the practice of Government [,]” its author could depend on no small portion of his readership to interpret this affirmation as both a compliment to the culture and the institutions that they still revered as well as a positive association between the proposed federal constitution and the same.

The second half of the aforementioned citation was doubtless intended to engender the same response. By praising life tenure during good behavior as “an excellent barrier to the despotism of the Prince [,]” Hamilton effectively focussed the attention and the affections of his audience upon something he knew that they already esteemed. The British Constitution – which, unstructured legal compendium that it was, included everything from the Magna Carta to the aforementioned Act of Settlement – indeed made provision for an independent judiciary. Late 18^th century Americans, though no longer British subjects, still widely considered themselves inheritors of British culture and traditions, and so had every reason to look upon such an affirmation of the quality of British government with pride. The comparison that followed – between a monarchy and a republic – then attempted to shift this sense of pride and affection towards a consideration of what a truly effective federal government required. Thus, with subtlety and efficiency, Hamilton drew a rhetorical line between Great Britain – which remained an object of widespread popular regard – life tenure – which was a distinctly British innovation – and the proposed federal judiciary – which in this case endeavored to be as useful to the American people as Britain’s own high court had been to the citizens thereof.

Hamilton seemed intent on evoking much the same sentiment in the twenty-first and last paragraph of No. 78. Having, by that point, argued at significant length as to the purpose of the proposed federal judiciary and the need for its officers to serve during good behavior, said paragraph sought to conclude matters by taking a broad view of the issues at hand. “Upon the whole,” it began,

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.

Putting aside Hamilton’s breezy confidence – warranted or otherwise – in the strength of the case he had made, the substance of this final commentary says a great deal about his own assumptions and those he attributed to his audience. The Constitutional Convention, he wrote, was wise to copy the standard of life tenure for judicial officers from the constitutions that had previously adopted it. As Hamilton and his audience both knew, this included the majority of the existing state constitutions and the unwritten British Constitution. Ascribing wisdom to the recognition of the superior elements of these documents indicated that they had something worthwhile to offer to a proposed American federal government. Thus, once again by a logical transference, Hamilton drew a line between the relevant constitutions, their supporters, and the proposed federal courts. By further claiming that the national judiciary would have been “inexcusably defective” without the aforementioned copied element, Hamilton again offered subtle acclaim to the relevant constitutions and indulged the pride of their supporters. The federal judiciary was worthwhile, he essentially claimed, in large part because it replicated elements of existing government that were themselves well-devised. Thus, without having to say as much, Hamilton doubtless hoped that those among his readers who favored the state constitutions or the British Constitution would come to favor the United States Constitution as well.   

The last sentence of paragraph twenty-one seemed calculated to evoke this sentiment by the use of yet plainer language. “The experience of Great Britain,” it read, “affords an illustrious comment on the excellence of the institution.” Having spoken previously of nameless monarchies, and princes, and “the models of those Constitutions [,]” Hamilton finally laid bare his intention to invoke Britain as a moral and logistical exemplar. Great Britain’s experience with life tenure and an independent judiciary was “illustrious” as described by No. 78, and served to reinforce the value of the practice itself. Not only did this commentary speak to the demonstrable fact that the Quam diu se bene Gesserint of the Act of Settlement had indeed brought an end to a destructive relationship between the Crown and the courts, but it also tied the emotional and – arguably – spiritual attachment many of Hamilton’s countrymen still felt towards British culture to a particular legal practice. That the proposed federal constitution also recognized this practice therefore spoke to its own quality, and provided an assurance to skeptical observers that at least some of the legal norms they had come to revere as British subjects would continue to be respected and enforced under the auspices of an empowered and effective federal government.    

Of course, as discussed above, not every member of Hamilton’s audience would have responded with enthusiasm to a comparison of the proposed United States Constitution with its unwritten British counterpart. Indeed, the impulse to do so likely says as much about Hamilton himself as it does about his audience. Decried by his enemies as a Tory – i.e. a supporter of the Crown and an opponent of the Revolution – the 1^st Secretary of the Treasury was an unapologetically vocal proponent of centralized government, national banking, and a strong military establishment. As all of these were also hallmarks of the 17^th and 18^th century British Empire, it stood to reason that Hamilton would perceive Great Britain as a useful example for the United States to follow. Federalist No. 78, among others, in some part reflects this understanding. Not only did its author believe that British history, law, and politics contained useful answers to many of the administrative and logistical questions plaguing the nascent American republic, but he seemed also to perceive his readership as either possessed of similar sentiments already or willing and able to be convinced of the same. In spite of these personal predilections, however, Hamilton tended not to rely solely upon the invocation of British examples to carry the balance of his argument. After all, there were a number of very useful American precedents for his and the Framers’ preferred relationship between the federal courts and their co-equal counterparts.