FEDERALIST No. 79



The Judiciary Continued

From MCLEAN's Edition, New York.

Wednesday, May 28, 1788



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.