The Judiciary Continued



From MCLEAN’s Edition, New York.



HAMILTON





To the People of the State of New York:



Next to permanency in office, nothing can contribute more to the

independence of the judges than a fixed provision for their support.

The remark made in relation to the President is equally applicable

here. In the general course of human nature, A POWER OVER A MAN’s

SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to

see realized in practice, the complete separation of the judicial from

the legislative power, in any system which leaves the former dependent

for pecuniary resources on the occasional grants of the latter. The

enlightened friends to good government in every State, have seen cause

to lament the want of precise and explicit precautions in the State

constitutions on this head. Some of these indeed have declared that

PERMANENT[1] salaries should be established for the judges; but the

experiment has in some instances shown that such expressions are not

sufficiently definite to preclude legislative evasions. Something still

more positive and unequivocal has been evinced to be requisite. The

plan of the convention accordingly has provided that the judges of the

United States “shall at STATED TIMES receive for their services a

compensation which shall not be DIMINISHED during their continuance in

office.”



This, all circumstances considered, is the most eligible provision that

could have been devised. It will readily be understood that the

fluctuations in the value of money and in the state of society rendered

a fixed rate of compensation in the Constitution inadmissible. What

might be extravagant to-day, might in half a century become penurious

and inadequate. It was therefore necessary to leave it to the

discretion of the legislature to vary its provisions in conformity to

the variations in circumstances, yet under such restrictions as to put

it out of the power of that body to change the condition of the

individual for the worse. A man may then be sure of the ground upon

which he stands, and can never be deterred from his duty by the

apprehension of being placed in a less eligible situation. The clause

which has been quoted combines both advantages. The salaries of

judicial officers may from time to time be altered, as occasion shall

require, yet so as never to lessen the allowance with which any

particular judge comes into office, in respect to him. It will be

observed that a difference has been made by the convention between the

compensation of the President and of the judges, That of the former can

neither be increased nor diminished; that of the latter can only not be

diminished. This probably arose from the difference in the duration of

the respective offices. As the President is to be elected for no more

than four years, it can rarely happen that an adequate salary, fixed at

the commencement of that period, will not continue to be such to its

end. But with regard to the judges, who, if they behave properly, will

be secured in their places for life, it may well happen, especially in

the early stages of the government, that a stipend, which would be very

sufficient at their first appointment, would become too small in the

progress of their service.



This provision for the support of the judges bears every mark of

prudence and efficacy; and it may be safely affirmed that, together

with the permanent tenure of their offices, it affords a better

prospect of their independence than is discoverable in the

constitutions of any of the States in regard to their own judges.



The precautions for their responsibility are comprised in the article

respecting impeachments. They are liable to be impeached for malconduct

by the House of Representatives, and tried by the Senate; and, if

convicted, may be dismissed from office, and disqualified for holding

any other. This is the only provision on the point which is consistent

with the necessary independence of the judicial character, and is the

only one which we find in our own Constitution in respect to our own

judges.



The want of a provision for removing the judges on account of inability

has been a subject of complaint. But all considerate men will be

sensible that such a provision would either not be practiced upon or

would be more liable to abuse than calculated to answer any good

purpose. The mensuration of the faculties of the mind has, I believe,

no place in the catalogue of known arts. An attempt to fix the boundary

between the regions of ability and inability, would much oftener give

scope to personal and party attachments and enmities than advance the

interests of justice or the public good. The result, except in the case

of insanity, must for the most part be arbitrary; and insanity, without

any formal or express provision, may be safely pronounced to be a

virtual disqualification.



The constitution of New York, to avoid investigations that must forever

be vague and dangerous, has taken a particular age as the criterion of

inability. No man can be a judge beyond sixty. I believe there are few

at present who do not disapprove of this provision. There is no

station, in relation to which it is less proper than to that of a

judge. The deliberating and comparing faculties generally preserve

their strength much beyond that period in men who survive it; and when,

in addition to this circumstance, we consider how few there are who

outlive the season of intellectual vigor, and how improbable it is that

any considerable portion of the bench, whether more or less numerous,

should be in such a situation at the same time, we shall be ready to

conclude that limitations of this sort have little to recommend them.

In a republic, where fortunes are not affluent, and pensions not

expedient, the dismission of men from stations in which they have

served their country long and usefully, on which they depend for

subsistence, and from which it will be too late to resort to any other

occupation for a livelihood, ought to have some better apology to

humanity than is to be found in the imaginary danger of a superannuated

bench.



PUBLIUS.



 [1] _Vide Constitution of Massachusetts_, chapter 2, section 1,

 article 13.









THE FEDERALIST.