HKB
exceedingly rare, and it is very frequently substituted for it; but if the latter proves to be indispensable, its power is doubled by the association of the idea of law.
A federal government stands in greater need of the support of judicial institutions than any other, because it is naturally weak, and opposed to formidable opposition.[143] If it were always obliged to resort to violence in the first instance, it could not fulfil its task. The Union, therefore, required a national judiciary to enforce the obedience of the citizens to the laws, and to repel the attacks which might be directed against them. The question then remained what tribunals were to exercise these privileges; were they to be intrusted to the courts of justice which were already organized in every state? or was it necessary to create federal courts? It may easily be proved that the Union could not adapt the judicial power of the state to its wants. The separation of the judiciary from the administrative power of the state, no doubt affects the security of every citizen, and the liberty of all. But it is no less important to the existence of the nation that these several powers should have the same origin, should follow the same principles, and act in the same sphere; in a word, that they should be correlative and homogeneous. No one, I presume, ever suggested the advantage of trying offences committed in France, by a foreign court of justice, in order to ensure the impartiality of the judges. The Americans form one people in relation to their federal government; but in the bosom of this people divers political bodies have been allowed to subsist, which are dependent on the national government in a few points, and independent in all the rest--which have all a distinct origin, maxims peculiar to themselves, and special means of carrying on their affairs. To intrust the execution of the laws of the Union to tribunals instituted by these political bodies, would be to allow foreign judges to preside over the nation. Nay more, not only is each state foreign to the Union at large, but it is in perpetual opposition to the common interests, since whatever authority the Union loses turns to the advantage of the states. Thus to enforce the laws of the Union by means of the tribunals of the states, would be to allow not only foreign, but partial judges to preside over the nation.
But the number, still more than the mere character, of the tribunals of the states rendered them unfit for the service of the nation. When the federal constitution was formed, there were already thirteen courts of justice in the United States which decided causes without appeal. That number is now increased to twenty-four. To suppose that a state can subsist, when its fundamental laws may be subjected to four-and-twenty different interpretations at the same time, is to advance a proposition alike contrary to reason and to experience.
The American legislators therefore agreed to create a federal judiciary power to apply the laws of the Union, and to determine certain questions affecting general interests, which were carefully determined beforehand. The entire judicial power of the Union was centred in one tribunal, which was denominated the supreme court of the United States. But, to facilitate the expedition of business, inferior courts were appended to it, which were empowered to decide causes of small importance without appeal, and with appeal causes of more magnitude. The members of the supreme court are named neither by the people nor the legislature, but by the president of the United States, acting with the advice of the senate. In order to render them independent of the other authorities, their office was made inalienable; and it was determined that their salary, when once fixed, should not be altered by the legislature.[144] It was easy to proclaim the principle of a federal judiciary, but difficulties multiplied when the extent of its jurisdiction was to be determined.