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FEDERALIST No. 79

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 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
 I, article 13.