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 fixed1 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 judicial2 from the legislative3 power, in any system which leaves the former dependent for pecuniary4 resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament5 the want of precise and explicit6 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 sufficiently7 definite to preclude8 legislative evasions9. Something still more positive and unequivocal has been evinced to be requisite10. 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 eligible11 provision that could have been devised. It will readily be understood that the fluctuations12 in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant13 to-day, might in half a century become penurious14 and inadequate15. It was therefore necessary to leave it to the discretion16 of the legislature to vary its provisions in conformity17 to the variations in circumstances, yet under such restrictions18 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 deterred19 from his duty by the apprehension20 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 lessen21 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 stipend22, 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 prudence23 and efficacy; and it may be safely affirmed that, together with the permanent tenure24 of their offices, it affords a better prospect25 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 impeachments26. They are liable to be impeached27 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 faculties28 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 attachments29 and enmities than advance the interests of justice or the public good. The result, except in the case of insanity30, 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 investigations31 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 disapprove32 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 vigor33, 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 affluent34, and pensions not expedient35, 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 livelihood36, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated37 bench.
PUBLIUS
1. Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13.
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1
fixed
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| adj.固定的，不变的，准备好的；(计算机)固定的 | |
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2
judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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4
pecuniary
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| adj.金钱的；金钱上的 | |
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5
lament
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| n.悲叹，悔恨，恸哭；v.哀悼，悔恨，悲叹 | |
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6
explicit
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| adj.详述的，明确的；坦率的；显然的 | |
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7
sufficiently
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| adv.足够地，充分地 | |
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8
preclude
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| vt.阻止，排除，防止；妨碍 | |
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9
evasions
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| 逃避( evasion的名词复数 )； 回避； 遁辞； 借口 | |
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10
requisite
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| adj.需要的，必不可少的；n.必需品 | |
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11
eligible
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| adj.有条件被选中的；(尤指婚姻等)合适(意)的 | |
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12
fluctuations
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| 波动，涨落，起伏( fluctuation的名词复数 ) | |
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13
extravagant
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| adj.奢侈的；过分的；(言行等)放肆的 | |
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14
penurious
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| adj.贫困的 | |
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15
inadequate
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| adj.(for,to)不充足的，不适当的 | |
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16
discretion
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| n.谨慎；随意处理 | |
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17
conformity
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| n.一致，遵从，顺从 | |
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18
restrictions
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| 约束( restriction的名词复数 )； 管制； 制约因素； 带限制性的条件（或规则） | |
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19
deterred
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| v.阻止，制止( deter的过去式和过去分词 ) | |
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20
apprehension
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| n.理解，领悟；逮捕，拘捕；忧虑 | |
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21
lessen
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| vt.减少，减轻；缩小 | |
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22
stipend
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| n.薪贴；奖学金；养老金 | |
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23
prudence
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| n.谨慎，精明，节俭 | |
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24
tenure
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| n.终身职位；任期；(土地)保有权，保有期 | |
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25
prospect
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| n.前景，前途；景色，视野 | |
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impeachments
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| n.控告( impeachment的名词复数 )；检举；弹劾；怀疑 | |
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impeached
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| v.控告（某人）犯罪( impeach的过去式和过去分词 )；弹劾；对（某事物）怀疑；提出异议 | |
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28
faculties
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| n.能力( faculty的名词复数 )；全体教职员；技巧；院 | |
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29
attachments
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| n.（用电子邮件发送的）附件( attachment的名词复数 )；附着；连接；附属物 | |
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30
insanity
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| n.疯狂，精神错乱；极端的愚蠢，荒唐 | |
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31
investigations
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| （正式的）调查( investigation的名词复数 )； 侦查； 科学研究； 学术研究 | |
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32
disapprove
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| v.不赞成，不同意，不批准 | |
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33
vigor
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| n.活力，精力，元气 | |
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34
affluent
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| adj.富裕的，富有的，丰富的，富饶的 | |
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35
expedient
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| adj.有用的，有利的；n.紧急的办法，权宜之计 | |
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36
livelihood
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| n.生计，谋生之道 | |
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37
superannuated
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| adj.老朽的，退休的；v.因落后于时代而废除，勒令退学 | |
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