The Federalist Papers
deliberate reflection, have a tendency, in the meantime, to occasion
dangerous innovations in the government, and serious oppressions of the
minor party in the community. Though I trust the friends of the proposed
Constitution will never concur with its enemies,(3) in questioning that
fundamental principle of republican government, which admits the right
of the people to alter or abolish the established Constitution, whenever
they find it inconsistent with their happiness, yet it is not to be
inferred from this principle, that the representatives of the people,
whenever a momentary inclination happens to lay hold of a majority of
their constituents, incompatible with the provisions in the existing
Constitution, would, on that account, be justifiable in a violation of
those provisions; or that the courts would be under a greater obligation
to connive at infractions in this shape, than when they had proceeded
wholly from the cabals of the representative body. Until the people
have, by some solemn and authoritative act, annulled or changed the
established form, it is binding upon themselves collectively, as well
as individually; and no presumption, or even knowledge, of their
sentiments, can warrant their representatives in a departure from it,
prior to such an act. But it is easy to see, that it would require an
uncommon portion of fortitude in the judges to do their duty as faithful
guardians of the Constitution, where legislative invasions of it had
been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that
the independence of the judges may be an essential safeguard against the
effects of occasional ill humors in the society. These sometimes extend
no farther than to the injury of the private rights of particular
classes of citizens, by unjust and partial laws. Here also the firmness
of the judicial magistracy is of vast importance in mitigating the
severity and confining the operation of such laws. It not only serves
to moderate the immediate mischiefs of those which may have been passed,
but it operates as a check upon the legislative body in passing them;
who, perceiving that obstacles to the success of iniquitous intention
are to be expected from the scruples of the courts, are in a manner
compelled, by the very motives of the injustice they meditate, to
qualify their attempts. This is a circumstance calculated to have more
influence upon the character of our governments, than but few may be
aware of. The benefits of the integrity and moderation of the judiciary
have already been felt in more States than one; and though they may have
displeased those whose sinister expectations they may have disappointed,
they must have commanded the esteem and applause of all the virtuous
and disinterested. Considerate men, of every description, ought to prize
whatever will tend to beget or fortify that temper in the courts: as no
man can be sure that he may not be to-morrow the victim of a spirit of
injustice, by which he may be a gainer to-day. And every man must
now feel, that the inevitable tendency of such a spirit is to sap the
foundations of public and private confidence, and to introduce in its
stead universal distrust and distress.
That inflexible and uniform adherence to the rights of the Constitution,
and of individuals, which we perceive to be indispensable in the courts
of justice, can certainly not be expected from judges who hold their
offices by a temporary commission. Periodical appointments, however
regulated, or by whomsoever made, would, in some way or other, be
fatal to their necessary independence. If the power of making them was
committed either to the Executive or legislature, there would be danger
of an improper complaisance to the branch which possessed it; if to
both, there would be an unwillingness to hazard the displeasure of
either; if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult popularity,
to justify a reliance that nothing would be consulted but the
Constitution and the laws.
There is yet a further and a weightier reason for the permanency of
the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with great
propriety, that a voluminous code of laws is one of the inconveniences
necessarily connected with the advantages of a free government. To avoid
an arbitrary discretion in the courts, it is indispensable that they
should be bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case that comes
before them; and it will readily be conceived from the variety of
controversies which grow out of the folly and wickedness of mankind,
that the records of those precedents must unavoidably swell to a very
considerable bulk, and must demand long and laborious study to acquire a
competent knowledge of them. Hence it is, that there can be but few men
in the society who will have sufficient skill in the laws to qualify
them for the stations of judges. And making the proper deductions for
the ordinary depravity of human nature, the number must be still smaller
of those who unite the requisite integrity with the requisite knowledge.
These considerations apprise us, that the government can have no great
option between fit character; and that a temporary duration in office,
which would naturally discourage such characters from quitting a
lucrative line of practice to accept a seat on the bench, would have a
tendency to throw the administration of justice into hands less able,
and less well qualified, to conduct it with utility and dignity. In
the present circumstances of this country, and in those in which it is
likely to be for a long time to come, the disadvantages on this score
would be greater than they may at first sight appear; but it must be
confessed, that they are far inferior to those which present themselves
under the other aspects of the subject.
Upon the whole, there can be no room to doubt that the convention acted
wisely in copying from the models of those constitutions which have
established good behavior as the tenure of their judicial offices, in
point of duration; and that so far from being blamable on this account,
their plan would have been inexcusably defective, if it had wanted this
important feature of good government. The experience of Great Britain
affords an illustrious comment on the excellence of the institution.
PUBLIUS
1. The celebrated Montesquieu, speaking of them, says: "Of the three
powers above mentioned, the judiciary is next to nothing."--Spirit of
Laws. Vol. I, page 186.
2. Idem, page 181.
3. Vide Protest of the Minority of the Convention of Pennsylvania,
Martin's Speech, etc.
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