FEDERALIST No. 79

The Judiciary Continued

From MCLEAN's Edition, New York.

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 PERMANENT1 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