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 weighty 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 Gov

ernment. 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 apprize us, that the Government can have no great option between fit characters; 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 defec

tive, 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.

[From M'LEAN's Edition, New York, M.DCC.LXXXVIII.]

[THE FEDERALIST.]

No. LXXIX.

[TO THE PEOPLE of the State of New YORK:]

NEX

[EXT 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* 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

* Vide Constitution of Massachusetts, Chapter 2, Section I, Article 18 -Publius.

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Judges of the United States "shall at stated times re"ceive 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. sure of the ground upon which he stands, and can never A man may then be 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 offices 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 prog ress 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 practised 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 investiga tions that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No