The Judiciary Continued
From MCLEAN's Edition, New York.
Wednesday, May 28, 1788


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

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

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.


1. Vide Constitution of Massachusetts, Chapter 2, Section 1, Article