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The Judiciary Continued
To the People of the State of New York:
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.
Vide ``Constitution of Massachusetts,'' chapter 2, section
I, article 13. [back]
Hamilton From McLean's Edition, 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.''