1787 Federalist 79 · Founding Made Plain

11787 Federalist No. 79

2The Judiciary Continued

3From MCLEAN's Edition, New York.

4HAMILTON

5To the People of the State of New York:

6NEXT to permanency in office,

7 nothing can contribute more to the independence

8 of the judges

9 than a fixed provision for their support.

10The remark made in relation to the President

11 is equally applicable here.

12In the general course of human nature,

13 A POWER OVER A MAN's SUBSISTENCE

14 AMOUNTS TO A POWER OVER HIS WILL.

15And we can never hope to see realized in practice,

16 the complete separation of the judicial

17 from the legislative power,

18 in any system which leaves the former dependent

19 for pecuniary resources

20 on the occasional grants of the latter.

21The enlightened friends to good government in every State,

22 have seen cause to lament

23 the want of precise and explicit precautions

24 in the State constitutions on this head.

25Some of these indeed have declared

26 that PERMANENT 1 salaries should be established

27 for the judges;

28 but the experiment has in some instances shown

29 that such expressions are not sufficiently definite

30 to preclude legislative evasions.

31Something still more positive and unequivocal

32 has been evinced to be requisite.

33The plan of the convention accordingly has provided

34 that the judges of the United States

35 "shall at STATED TIMES receive for their services

36 a compensation which shall not be DIMINISHED

37 during their continuance in office."

38This, all circumstances considered,

39 is the most eligible provision

40 that could have been devised.

41It will readily be understood

42 that the fluctuations in the value of money

43 and in the state of society

44 rendered a fixed rate of compensation

45 in the Constitution inadmissible.

46What might be extravagant to-day,

47 might in half a century become

48 penurious and inadequate.

49It was therefore necessary

50 to leave it to the discretion of the legislature

51 to vary its provisions

52 in conformity to the variations in circumstances,

53 yet under such restrictions

54 as to put it out of the power of that body

55 to change the condition of the individual

56 for the worse.

57A man may then be sure of the ground upon which he stands,

58 and can never be deterred from his duty

59 by the apprehension of being placed

60 in a less eligible situation.

61The clause which has been quoted combines both advantages.

62The salaries of judicial officers

63 may from time to time be altered,

64 as occasion shall require,

65 yet so as never to lessen the allowance

66 with which any particular judge comes into office,

67 in respect to him.

68It will be observed that a difference has been made

69 by the convention

70 between the compensation of the President

71 and of the judges,

72 That of the former can neither be increased

73 nor diminished;

74 that of the latter can only not be diminished.

75This probably arose from the difference

76 in the duration of the respective offices.

77As the President is to be elected

78 for no more than four years,

79 it can rarely happen that an adequate salary,

80 fixed at the commencement of that period,

81 will not continue to be such to its end.

82But with regard to the judges,

83 who, if they behave properly,

84 will be secured in their places for life,

85 it may well happen,

86 especially in the early stages of the government,

87 that a stipend, which would be very sufficient

88 at their first appointment,

89 would become too small

90 in the progress of their service.

91This provision for the support of the judges

92 bears every mark of prudence and efficacy;

93 and it may be safely affirmed

94 that, together with the permanent tenure

95 of their offices,

96 it affords a better prospect of their independence

97 than is discoverable in the constitutions

98 of any of the States

99 in regard to their own judges.

100The precautions for their responsibility

101 are comprised in the article respecting impeachments.

102They are liable to be impeached for malconduct

103 by the House of Representatives,

104 and tried by the Senate;

105 and, if convicted, may be dismissed from office,

106 and disqualified for holding any other.

107This is the only provision on the point

108 which is consistent with the necessary independence

109 of the judicial character,

110 and is the only one which we find

111 in our own Constitution

112 in respect to our own judges.

113The want of a provision for removing the judges

114 on account of inability

115 has been a subject of complaint.

116But all considerate men will be sensible

117 that such a provision would either

118 not be practiced upon

119 or would be more liable to abuse

120 than calculated to answer any good purpose.

121The mensuration of the faculties of the mind has,

122 I believe, no place in the catalogue of known arts.

123An attempt to fix the boundary

124 between the regions of ability and inability,

125 would much oftener give scope

126 to personal and party attachments and enmities

127 than advance the interests of justice

128 or the public good.

129The result, except in the case of insanity,

130 must for the most part be arbitrary;

131 and insanity, without any formal or express provision,

132 may be safely pronounced

133 to be a virtual disqualification.

134The constitution of New York,

135 to avoid investigations

136 that must forever be vague and dangerous,

137 has taken a particular age

138 as the criterion of inability.

139No man can be a judge beyond sixty.

140I believe there are few at present

141 who do not disapprove of this provision.

142There is no station,

143 in relation to which it is less proper

144 than to that of a judge.

145The deliberating and comparing faculties

146 generally preserve their strength

147 much beyond that period

148 in men who survive it;

149 and when, in addition to this circumstance,

150 we consider how few there are

151 who outlive the season of intellectual vigor,

152 and how improbable it is

153 that any considerable portion of the bench,

154 whether more or less numerous,

155 should be in such a situation at the same time,

156 we shall be ready to conclude

157 that limitations of this sort

158 have little to recommend them.

159In a republic, where fortunes are not affluent,

160 and pensions not expedient,

161 the dismission of men from stations

162 in which they have served their country

163 long and usefully,

164 on which they depend for subsistence,

165 and from which it will be too late

166 to resort to any other occupation for a livelihood,

167 ought to have some better apology to humanity

168 than is to be found

169 in the imaginary danger of a superannuated bench.

170PUBLIUS.

1711 Vide "Constitution of Massachusetts,''

172 chapter 2, section I, article 13.