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These are problems that have yet to receive a satisfactory resolution; 8 bald assertion has too often substituted for analysis, proceeding from assumptions that are at war with the intention of the Framers. Hopefully, a re-examination of the historical and testual materials may throw fresh light on the issues.

It will serve to clarify analysis if we bear in mind the differences in provenance, objectives and procedures between "high crimes and misdemeanors” and “good behavior.” The former phrase is found in Article II, § 4, the Executive Article of the Constitution: “The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Elsewhere I have shown that “high crimes and misdemeanors” fell into recognizable categories at common law, that the Framers adopted the phrase in its "limited,” "technical meaning," and contemplated that it would be employed only for “great offenses.” 9 At common law, impeachment was a criminal proceeding, brought by the House of Commons before the House of Lords (under the course of Parliament” as distinguished from the general criminal law) which resulted both in removal from office and in severe penalties. Generally speaking, it was employed to remove offenders whom the King refused or neglected to remove. The provision for judicial tenure “during good behavior” is located in Article III, § 1, the Judicial Article. Derelictions from "good behavior” were reachable in the English courts by a proceeding to forfeit the office. It was brought by one who appointed to either private or public office, or by his agent, and its sole object was to remove the misbehaving appointee. As will appear, the standard of “misbehavior” was broader than that of “high crimes and misdemeanors.” In sum, at common law there was a civil forfeiture proceeding for “misbehavior” brought in a court, and a criminal impeachment proceeding brought by and in the Parliament. Never, so far as I could discover, did an English impeachment charge a breach of “good behavior”; instead the stock charges were “high treason and other high crimes and misdemeanors.” The intermixture of these quite distinct common law procedures and doctrines has bred confusion in the United States.

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A. Its Common Law Connotations

Only judges “hold their offices during good behavior”; no other officer has such tenure. The President and Vice President are elected for a term; and civil officers, who with the President and Vice President are the subjects of impeachment, are appointed for indeterminate terms. “Good behavior” is commonly associated with the Act of Settlement (1700) 10 which granted judges tenure quamdiu se bene gesserint, that is, for so long as they conduct themselves well, and provided for termination by the Crown upon the Address (formal request) of both Houses of Parliament.11 The origin of "good behavior,”, however, long antedates the Act. Judge St. George Tucker, a pioneer commentator on the Constitution, noted in 1803 that

these words (by a long train of decisions in England even as far back as the reign of Edward the third) in all commissions and grants, public and private, imported an office or estate, for the life of the grantee, determinable only by his death, or breach of good behaviour. 12

& Professor Kurland states with respect to removal of judges, "There is more literature than learning.'. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. CHI. L. REV' 665, 668 (1969). Professor Stolz refers to the opposing views of Professor Burke Shartel and Judge Merrill Otis as some distingushed though partisan scholarship of about thirty years ago.” Stolz, Disciplining Federal Judges: Is Impeachment Hopeless?, 57 CALIF. L. REV. 659, 660 (1969).

9 Berger, Impeachment for High Crimes and Misdemeanors," in T'he HenryM. Hart, Jr.Memorial Festschrift, 44 S. CAL. L. REV.-(1971) (hereinafter cited as Berger, Festschrist]. In that article I conclude that at common law impeachment did not require an offense punishable under the general criminal law, that several provisions in our Constitution indicate it was not designed to be a criminal proceeding, and that the phrase "high crimes and misdemeanors” was deemed by the Framers to have a limited, technical meaning rather than to confer unlimited power to impeach. See also pp. 1511, 1512-13 infra. The categories of high crimes and misdemeanors,” roughly, were misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament's prerogatives, corruption, and advice of pernicious meausres. Berger, Festschrift, ibid.

10 John Taylor of Caroline stated of "good behavior” tenure, "It was invented in England to counteract the influence of the crown over the judges.” Quoted in Carpenter, Repeal of the Judiciary Act of 1801, 9 AM. POL. Sci. REV. 519, 525 (1915). See also Ross, Good Behavior" of Federal Judges, 12 U. KAN. CITY L. REV. 119 (1944); Kramer & Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of During Good Behavior,35 GEO. Wash. L. REV. 455, 456 (1967).

11 The Act of Settlement, 12 & 13 Will. 3, c. 2, § 3. For further discussion of the Act, see pp. 1500-01 infra. 12 St. G. TUCKER, in 1 W. BLACKSTONE, COMMENTARIES App. 353 (Tucker ed. 1803).

So it had been indicated by Coke; 13 and in 1693 Chief Justice Holt understood Coke to refer to “an estate for life determinable upon misbehaviour,” and declared that" during good behaviour' is during life; it is so long as he doth behave himself well "11 In the Pennsylvania Ratification Convention, Chief Justice McKean explained that "the judges may continue for life, if they shall so long behave themselves well”; 15 and citations can be multiplied. When Hamilton stated that "good behavior” was copied from the English model he stated the obvious.16

It only confuses matters to set life tenure apart from tenure "during good behavior,” as Dean Kramer and Professor Barron have done, and to read various shorthand references to judicial tenure as “life tenure," which “taken at face value appear to preclude judicial removal,” that is, removal by judges.? For at common law "life tenure” itself was conditioned on “good behavior," and was determined by the grantee's misbehavior.18 “Good behavior,” said Coke, “is no more than the law would have implyed, if the office had been granted for life.' ."' 19 Bacon's Abridgment explains more fully, If an office be granted to a Man to have and enjoy so long as he shall behave himself well in it; the Grantee hath an Estate of Freehold in the Office for since nothing but his Misbehaviour can determine his Interest, no Man can prefix a shorter term than his Life; since it must be by his own Act (which the Law does not presume to foresee) which

only can make his Estate of shorter Continuance than his Life. And, Bacon continues, under “a Grant to a Man for so long Time as he shall behave himself well... his Misbehaviour in each Case determines his Interest.” 20 B. Scire Facias to Determine Misbehavior: The Judicial Role

When an office held “during good behavior” is terminated by the grantee's misbehavior, there must be an incident” power" to carry the law into execution” if “good behavior” is not to be an impotent formula.21 English law provided a proceeding to forfeit the office by a writ of scire facias.22 An act “contrary to what belongs to his office,” resulted in forfeiture of the office, as appears in the Abridgments of Viner and Bacon, and in the Digest of Comyns,23 which faithfully reflect the cases.24 The writ of scire facias, said Blackstone, was the remedy to repeal a patent in case of forfeiture.25 It is true that this procedure found employment with respect to lesser officials, rising no higher than a Recorder, a lesser judge; 28 and Judge Merrill Otis correctly stated that there is no English case wherein a judge comparable to a federal judge was removed in a judicial proceeding.27 Since there was admittedly an established judicial procedure to forfeit an office upon "misbehavior,'

113 COKE ON LITTLETON 42a.
19 Harcourt v. Fox, 1 Show, K.B. 426, 506, 536, 89 Eng. Rep. 680, 720, 736 (1693).

15 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 539 (2d ed. 1836).

16 THE FEDERALIST No. 65, at 425; No. 78, at 511 (Mod. Lib. ed.) (A. Hamilton). 17 Kramer & Barron, supra note 10, at 455.

19 Kramer & Barron, id. at 455, notice "some cases" which utter such learning but apparently regard them as one of two conflicting lines of authority.

19 4 E. COKE, INSTITUTES OF THE LAWS OF ENGLAND 117; cf. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).

20 3 M. BACON. A NEW ABRIDGMENT OF THE LAWS OF ENGLAND “Offices and Officers” (H) 733 (1st ed. 1740).

2 Speaking in Rex: v. Richardson, 1 Burr, 517, 539, 97 Eng. Rep. 426, 438 (1758), of the power to remove an officer unfit for office, Lord Mansfield declared, "It is necessary to the good order and government of corporate bodies, that there should be such a power .... Unless the power is incident, franchises or offices might be forfeited for offenses: and yet there would be no means to carry the law into execution.” To the same effect Lord Bruce's Case, 2 Str. 819, 820, 93 Eng. Rep. 870 (1728). In 1862, the English Crown law officers rendered an opinion with reference to judicial 'good behavior" tenure that “when a public office is held during good behaviour, a power (of removal for misbehaviour) must exist somewhere: and when it is put in force, the tenure of the office is not thereby abridged, but it is forfeited and declared vacant for nonperformance of the condition on which it was originally conferred." Quoted in 1 A. TODD, PARLIAMENTARY GOVERNMENT 192 (Walpole ed. 1892).

22 3 M BACON, supra note 20, at (M) 742-43: 4 J. COMYNS, A DIGEST OF THE LAWS OF ENGLAND “Officer" (K) 259 (1766): and see note 26 infra. The writ of quo warranto has replaced scire facias. Shartel, Federal Judges-Appointment, Supervision, and RemovalSome Possibilities Under the Constitution, 28 Mich. L. REV. 870, 887-88 (1930).

23 16 C. VINER, GENERAL ABRIDGEMENT OF LAW AND EQUITY Officers and Offices" (N) 122 (743): 3 M. BACON, supra note 20, at (M) 741: 4 J. COMYNS, supra note 22 ,at (K) 255.

24 “[E]very voluntary act done by an officer contrary to that which belongs to his office is a forfeiture of his office ...." Earl of Pembroke v. Sir H. Barkeley, Popham 116, 118, 79 Eng. Rep. 1223, 1224 (1597): Earl of Shrewsbury's Case, 9 Co. Rep. 46b, 50a, 77 Eng. Rep. 798, 804 (1611): Regina v. Bailiffs of Ipswich, 2 Salk, 435 91 Eng. Rep. 378 (1707).

25 3 W. BLACKSTONE, COMMENTARIES * 260-61. 26 The cases are set forth in Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, in SUPREME COURT REVIEW 135, 153-54 (P. Kurland ed. 1969).

," the Otis argument is merely that there is no precise precendent for application of that procedure to judges. That argument does not vitiate the “judicial power,” for that power, as will appear, turns on quite other considerations; at most the argument goes to the absence of a special remedy, and this despite the historical growth of the common law by application of a principle to analogous circumstances when the situation presented itself. There was little or no occasion to remove judges by scire facias because for the most part they were appointed "at pleasure,” 28 and could be unceremoniously removed, as James' dismissal of Coke testifies.29 When rare “good behavior" appointees were threatened by arbitrary royal removal, they insisted on the protection of scire facias. where the issue of misbehavior could be tried judicially.

Among the exceptional judicial appointments for “good behavior” was that of the Chief Baron of the Exchequer.30 In 1628 the post was occupied by Sir John Walter; and Charles I

was dissatisfied with his opinion in the case of parliament men imprisoned for seditious speeches in parliament, and ordered him to surrender his patent (of appointment). He refused to do so, on the ground that his grant was for good behavior, and that he ought not to be removed without a proceeding on a scire facias to determine

“whether he did bene se gerere or not, as Whitelocke says.31 Thus a highly placed judge affirmed that his office could be forfeited for misbehavior in a scire facias proceeding. At a time when impeachments were humming around the heads of Charles' ministers 32 Chief Baron Walter wisely preferred trial by judges to the political ordeal of impeachment. In 1672, Charles II, following the example of his father, tried to dismiss Sir John Archer, a Justice of Common Pleas, a court which ranked with King's Bench. Justice Archer also "refused to surrender his patent without a scire facias.” 33 Both the Walter and Archer cases. were cited in 1692 before Chief Justice Holt and his associate Justices by Serjeant Levinz, who had himself been a Justice; and Holt made the significant remark that "our places as Judges are so settled, only determinable upon misbehaviour." 34

That scire facias could be employed for removal of a judge was again indicated in an opinion rendered in 1753 by Attorney General Dudley Ryder and Solicitor General William Murray, both later to be Chief Justices, Murray to become better known as Lord Mansfield. Governor Clinton of New York had improvidently, made a grant to Chief Justice de Lancey of a commission for "good behavior" instead of the customary "at pleasure” appointment, and subsequently the two were at odds. Ryder and Murray stated, "We think the Governor should not have granted this commission different from the usage; but as the power given by the commission is general, we apprehend the grant is good in point of law, and cannot be revoked without misbehaviour."35 Ryder and Murray were too practiced to employ "revoked” for the technical term “impeached”; and it is highly improbable that they confused "misbehaviour," the classic scire facias formula, with impeachment, which proceeds for "high crimes and misdemeanors.” Indeed, advice that it required nothing less than a full dress impeachment by Parliament to undo a mistaken appointment in a Colony of the far-flung Empire would have been grossly unpalatable. This view of the law was later summarized by Lord Chancellor Erskine when, in the course of a debate in the House of Lords in 1806 upon whether to employ an Address for the removal of Justice Luke Fox of Common Pleas in Ireland, he inquired,

27 Otis, A Proposed Tribunal: 18 It Constitutional? 7 U. KAN. CITY L. Rev. 3, 49(1938). Shartel, supra note 22, at 882 mistakenly cites 4 E. COKE, supra note 19, at 117 for the proposition that judges “holding during good behavior' ... were removable on scire facias ...." All that appears at the cited page is that the Chief Baron of the Exchequer has “good behavior" tenure in contrast to other judges who held at pleasure,”

28 See McIlwain, The Tenure of English Judges, 7 AM. POL. Sci. REV. 217, 218 (1913); 7 E. Foss, THE JUDGES OF ENGLAND 4 (1804): cf. 6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 503.10 (1924).

29 See 5 W. HOLDSWORTH, $upra note 28, at 430–40 (2d ed. 1937). 30 4 E. COKE, supra note 19, at 117.

31 McIlwain, supra note 28, at 221 ; 6 E. Foss, supra note 28, at 372 (1857); cf. Vandam v. Deconell, W. Jones 228, 82 Eng. Rep. 120 (1631).

39 E.g., from the impeachment of Lord Chancellor Bacon in 1620 to that or the Duke of Buckingham in 1626. See A. SIMPSON, A TREATISE ON FEDERAL IMPEACHMENTS 91-95 (1916).

33 “Justice Archer was removed, from sitting in the Court of Common Pleas, pro quibusdam causis mihi incognitis: but the judge having his patent to be judge quamdiu se bene gesscrint, refused to surrender his patent without a scire facias, and continued justice of that Court, though prohibited to sit there ..." T. Raym. 217, 83 Eng. Rep. 113 (1674). See also McIlwain, supra note 28, at 223; 7 E. Foss, supra note 28, at 52–53.

31 Harcourt v. Fox, I Show, K. B. 426, 506, 514, 535, 89 Eng. Rep. 680, 720, 722, 724, 734 (1692–1693). This was a suit to restore to office a Clerk of the Peace who held for so long as he "shall well demean himself in his said office," id. at 426, 680; cf. id. at 536, 736, and who had been summarily dismissed. Holt, C. J., held that such persons were “removable” upon “misbehaviour," id. at 536, 738, and that “misbehaviour should forfeit their places," id. at 536, 736. For this scire facias, not impeachment, was the remedy, so that Holt's remark apparently refers back to the Walter and Archer refusals to surrender office without a scire facias.

35 5 DICTIONARY OF AMERICAN BIOGRAPHY, “James de Lancey" 212 (1930); OPINIONS OF EMINENT LAWYERS 491 (G. Chalmers, 1st Amer. ed. 1858); see note 89 infra.

Were their Lordships afraid to trust the ordinary tribunals upon this occasion, to let the guilt or innocence of the honorable judge be decided

upon a scire facias to repeal the patent by which he held his office? 36 In his Life of Erskine, Lord Campbell, himself a Lord Chancellor, who did not shrink from pointing out errors in the views of his predecessors, quoted this passage without comment, 37 from which we may infer that he deemed' Erskine to state the law. Eminent scholars, among them Holdsworth, consider that removal of judges by scire facias remains available in England.38 Scire facias may consequently be regarded as an established medium for the determination that an office held "during good behavior” was terminated by misbehavior; and leading judges had recognized its availability for the trial of judicial misbehavior.

When the Framers employed "good behavior,” a common law term of settled meaning, with no indication that they were employing it in a new and different sense, it might be presumed that they implicitly adopted the judicial enforcement machinery that traditionally went with it.39 For as Madison explained in the Virginia Ratification Convention, "where a technical word was used all the incidents belonging to it necessarily attended it," an explanation in which John Marshall, Judge Pendleton and Edmund Randolph concurred.40 Minimally, if good behavior” would be ineffectual without scire facias to try misbehavior, it may be posited that the Framers would not have excluded the writ's employment. For this we have the test laid down by Chief Justice Marshall who, be it remembered, had himself been a vigorous participant in the Virginia Ratification Convention. He said in the Dartmouth College Case,

It is not enough to say, that this particular case was not in the mind of the Convention, when the article was framed. * * * It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it * * *.41

36 7 PARL. DEB. 751, 770 (1806). Thus a great judge preferred to have the misconduct of a judge tried by judges. A similar choice was made by Denman, later Lord Justice Denman, in 1830 when, arguing in behalf of Sir Jonah Barrington, a judge of the court of admiralty of Ireland, to avert

removal by Address, he stated, a scire facias could have been sued out to abrogate the patent of office.” 24 PARL. DEB. 966 (Hansard, New Ser. 1830).

In Floyd v. Barker, 12 Co. 23, 77 Eng. Rep. 1305 (Star Chamber, 1608), a suit against a judge for acts performed in his judicial capacity, Coke delivered himself of an overbroad dictum that for such acts a judge could not be tried before “any other judge” but only before the King. But this dictum exerted no influence on the views of the judges and jurists mentioned above as to the availability of scire facias.

37 6 J. CAMPBELL, LIVES OF THE CHANCELLORS 559-60 (1848-1850).

38 Holdsworth appears in 6 HALSBURY, LAWS OF ENGLAND 609 (1932): he is credited with the chapter on constitutional law. See also R. JACKSON, THE MACHINERY OF JUSTICE IN ENGLAND 289 n.1 (5th ed. 1967); H. BROOM, CONSTITUTIONAL LAW VIEWED IN RELATION TO THE COMMON LAW, 789, 791 (1866): Mcllwain, supra note 28, at 225: 2 W. ANSON (Part I), LAW AND CUSTOM OF THE CONSTITUTION 235 (4th ed. 1935): 1 A.

TODD, supra note 21, at 192-93: T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 146 (1929); cf. note 128 infra.

The arguments for judical forfeiture proceedings have been deemed "inconclusive since no cases involving an attempted use of such process have arisen in England since the Act of Settlement " Note, The Exclusiveness of the Impeachment Power Under the Constitution, 51 HARV. L. REV. 330, 335 (1937). But

since provision in that Act for removal by Address, there also has been but one such attempt, in 1830. H. WADE, ADMINISTRATIVE LAW 281 (2d ed. 1967).

A number of expressions are contrary to those of Holdsworth et al. So 8 HALSBURY, su pra at 590 (1933), stated that judges holding during good behavior are "only removable on an address This chapter on “Courts” by Messrs. Inskip and Bridgman takes no account of Holdsworth's statement to the contrary in volume 6, supra. So too, F. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 313 (1913), states that the provision of the Act of Settlement bars removal except upon “conviction for some offense, or on the address of both houses." In his preface to this work, H.A.L. Fisher, id. at vi, states it is an early work which “does not claim to be based upon original research: for much of his information (Maitland) was confessedly content to draw upon the classical text-books .” For reasons hereinafter set out, I consider that the majority view stands more firmly. Pp. 1500-01 infra.

30 CJ. notes 21 supra and 261 infra. CJ. United States v. Wilson, 32 U.S. (7 Peters) 150, 160 (1883), where Chief Justice Marshall stated respecting a “pardon," "As this power has been exercised from time immemorial by the executive of that nation ** to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used *

40 3 J. ELLIOT, supra note 15, at 531, 546, 558–59, 573. The issue was whether the provision for jury trial carried with it as an incident the right to challenge jurors.

41 Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 644 (1819).

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It is not easy to attribute to the Framers an exclusory purpose that would deprive 'good behavior" of meaning.

Thus far I have considered the matter in the narrow compass to which prior discussions have been confined. But it is a mistake to stop with the inquiry whether or not scire facias was available at common law for the enforcement of “good behavior" against judges. When the Constitution limited judicial tenure to

during good behavior," the Framers self-evidently did not intend that a judge who behaved badly and thus violated the condition of his tenure should be continued in office. So much the common law teaches us with respect to “good behavior” tenure in general; indeed it represents plain common sense.42 If, as I propose to demonstrate, impeachment for “high crimes and misdemeanors”! did not embrace removal for "misbehavior” which fell short of “high crimes and misdemeanors,"

,43 some other means of removal must be available. 44 unless we attribute to the Framers the Dickensian design of maintaining a “misbehaving” judge in office.

There are no “dead” words in the Constitution, said Hatton Sumners, Chairman of the House Judiciary Committee, 45 in championing removal by judges of judges who misbehaved. That every word in the Constitution must be given effect is the rule.46 To give meaning to a tenure limited to "good behavior” there must be a means of termination for misbehavior. In this view, it is of no moment that no express provision was made. For. in the words of Justice Story, “The end being required, it has been deemed å just and necessary implication, that the means to accomplish it are given also. * * *"'47 Were it therefore assumed that scire facias was not and is not available for the removal of judges, it would be open to Congress, under the “necessary and proper" clause, to provide a remedy for effectuation of the Constitutional design.

Given common law judicial determinations of forfeitures upon breach of condition subsequent, the most that can be claimed by Otis and his followers is that the common law provided no remedy for forfeiture of judicial officeman omission that, as has been noted, was fortuitous, 48 and that is curable under the principle of common law growth by analogy. Remedies were not frozen by the Constitution to those extant in 1788. Marshall laid claim in Marbury v. Madison, to the common law power to fashion a remedy for every right.49 And Congress, over the years, has provided an array of remedies unknown to the common law; and were a new remedy required, it is open to Congress to provide it.

Enabling legislation may also be viewed as an additional grant of subject matter jurisdiction-forfeitures of judicial office—which is quite different from an attempt to expand the Article III “judicial power.” In a grudging concession, Judge Otis stated, “It can well be argued that an action to forfeit the office of a judge for misconduct ... is a true 'case' or 'controversy.' » 50 Certainly the contrary cannot be maintained. A grant" during good behavior” is simply an estate on a condition subsequent, which is defeated or forfeited by nonperformance of

42 Justice Frankfurter reminded us to read all enactments "with the saving grace of common sense,
United States, 349 U.S. 81, (1955); and United States v. Cook, 384 U.S. 257, 262 (1966), stated that the canon
that penal statutes should be strictly construed “is not an inexorable command to override common

43 Pp. 1511, 1512-13 infra.
44 See note 21 supra.
45 81 CONG. REC.6164 (1937). Speaking to the “Judicial Good Behavior Bill" in 1937, Summers said, “If the
Senate cannot make vital the 'good behavior' provision in the judicial tenure clause, and clearly it cannot do
it, what agency of government can do it? The historical background precludes any notion that the President
can effectuate those words, because those words went into the framework of the English constitution, from
which we appropriated them, in order to prevent the Executive from having anything to do with it. So by
process of elimination we come to a court as the only agency of government that can keep those words from -
being dead words in the Constitution.Ibid.

40 "It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). "No word in the instrument... can be rejected as superfluous or unmeaning ...

..." Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 571 (1840) (per Taney, C. J.).

47 Prigg v. Commonwealth of Pennsylvania, U.S. (16 Pet.) 539, 619, 615 (1842). The classic expression is that of Marshall, C. J.:“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819). Moreover, “A constitutional provision should not be construed so as to defeat its evident purpose, rather so as to give it effective operation ...." Jarrolt v. Moberly, 103 U.S. 580, 586 (1880).

48 See pp. 1479-80 supra.
495 U.S. (1 Cranch) 137, 163 (1803). That we are merely dealing with the question of “remedy" is confirmed
in 3 W. BLACKSTONE, COMMENTARIES *260-61: "where the patentee hath done an act that amounts to a
forfeiture of the grant ... the remedy to repeal the patent is by a writ of scire facias " See also note

50 Otis, supra note 27, at 36.

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