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against leg

whims of majority

protects

Dproposed constitution will never concur with its enemies, * in

questioning that fundamental principle of republican govern-
munt, which admits the right of the people to alter or abolish
the established constitution whenever they find it inconsistent
with their happinoss; yet it is not to be inforred 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 estab-
lished 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 depart-
ure 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
legislativo 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
safe-guard against the effects of occasional ill humours 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 magis-
tracy is of vast importance in mitigating the severity, and con-
fining the operation of such laws. It not only serves to mode-
rate the immediate mischiefs of those which may have been
Upasses, but it operates as a check upon the legislative body in
4passing them; who, perceiving that obstacles to the success of
an iniquitous intention are to be expected from the scruples of

1

* Vide Protest of the minority of the convention of Pennsylvania, Martin's spcech, &c.

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the courta, 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 imagine. The benefits of the integrity and moderation of the judiciary bave 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. Considerato 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 wbich 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, for some way or other, be fatal to their necessary independence. If the power of making them was committed either to the executive or legislaturo, 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 displeasuro of eithor; if to the peoplo, or to persons chosen by them for tho spocial purposo, there would bo too groat 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 judicial offices; wbich is deducible from the nature of the qualifications they requiro. 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 discre

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THE FEDERALIST.

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tion in the courts, it is indispensable that they should be bound down by strict rules and precedents, wbich 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 mon in the society, who will have sufficient skill in the laws to qualify them for tho station's 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 suchi characters from quitting , 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 disadvan. tages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inforior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt, that the conventiou acted wisely in copying from the models of those constitutions with bave established good behaviour as the tenure of judicial offices, in point of duration; and that, so far from being blameable on this account, their plan would bave been inexcusably defectivo, if it had wanted this important feature of good government. The experience of Great Britain affords au illustrious comment on the excellence of the institution.

PUBLIUS

THE FEDERALIST.

NUMBER LXXIX.

NEW YORK, JUNE 24, 1788.

HAMILTON.

A FURTHER VIEW OF THE JUDICIAL DEPARTMENT, IN RELATION TO THE PROVISIONS FOR THE SUPPORT AND RESPONSIBILITY OF THE JUDGES.

Next to permanency in office, nothing can contribute more to the independence of the judges, than_e 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 resource 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 bas in some instances shown, that such expressions are not sufficiently definite to preclude logislativo ovasions. 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

* Vide Constitution of Massachusetts, Chap. 2. Sect 1. Art. 18.

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States "shall at stated times receive for their services a compennation, which shall not be diminished during their continuance in office.”

This, all circumstances considered, is the most eligible provi. sion 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 oxtravagant to-day, might in half a century become penurious and inadequate. It was therefore nocessary 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 indi. vidual 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 cause 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 behavo proporly, will be socurod in thoir placos for lifo, it may well happen, espocially in the early stagos 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

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