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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," 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

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27 Otis, A Proposed Tribunal: Is 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, supra 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).

32 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. 34 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.

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,

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

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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

367 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): McIlwain, 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. since no cases Note,

The arguments for judical forfeiture proceedings have been deemed "inconclusive. involving an attempted use of such process have arisen in England since the Act of Settlement 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, supra 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

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majority view stands more firmly. Pp. 1500-01 infra.

39 Cf. notes 21 supra and 261 infra. Cf. 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 ***"

403 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).

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," 17 43 some other means of removal must be available, 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 a 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 office-an 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

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42 Justice Frankfurter reminded us to read all enactments "with the saving grace of common sense," Bell v. 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 sense...."

43 Pp. 1511, 1512-13 infra.

44 See note 21 supra.

4581 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.

46 "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, but 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

22 supra.

30 Otis, supra note 27, at 36.

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the condition.51 Thereupon the grantor is free to claim the forfeited estate; and if the grantee controverts the charge of “misbehavior" there is a case or controversy," a "real dispute between the plaintiff and defendant." 52 Existence of an exact precedent for the particular dispute, e.g., forfeiture of judicial office, is not the test of Article III "judicial power." Were that the test many unprecedented "disputes" could never have been adjudicated. Instead, "judicial power" is activated when an actual dispute between adverse parties is presented.

In sum, since the judicial power to declare a forfeiture on breach of a condition subsequent existed at the adoption of the Constitution, and since a dispute whether the condition was breached constitutes a "case or controversy," I consider that it falls within the "judicial power." Consequently, legislation that would set up a special court within the judiciary branch to adjudicate disputes whether a judge breached the "good behavior" condition would merely entail a grant of fresh subject matter jurisdiction, or, on the dubious assumption that forfeitures of judicial office were unavailable at common law, the creation of a new remedy. The exercise of the "judicial power" is required because it was the design of the Framers to limit Presidential and Congressional interference with the judiciary.53 Outside the impeachment clause, Congress enjoys no "judicial" power to remove a judge from office. 54 Given a "case or controversy" the Congressional grant of fresh subject matter jurisdiction or the creation of a new remedy would not represent a delegation of Congressional power. Instead, such a grant would constitute action to supplement the "judicial power" under the "necessary and proper" clause or under the power of Congress to regulate the jurisdiction of the inferior courts.55

Since the unavailability of impeachment to enforce "good behavior" is pivotal to this reading, it is necessary to examine the two competing claims: (1) impeachment is the exclusive means provided by the Constitution for removal of judges, and (2) impeachment for "high crimes and misdemeanors" embraces infractions of "good behavior" so that an alternative remedy is superfluous. Of these in turn.

51 2 W. BLACKSTONE, COMMENTARIES *155; cf. id. at *152-53. Blackstone refers to "all forfeitures which are given by law [see note 169 infra.] of life estates . . . for any acts done by the tennant himself, that are incompatible with the estate which he holds" and instances "a grant... to a man of an office . . . ." id. at *153. See also 1 A. TODD quotation, supra note 21.

52 Lord v. Veazie, 49 U.S. (8 How.) 251, 254 (1850) (per Tancy, C.J.). There is a "controversy" where there is "a dispute between parties who face each other in an adversary proceeding.. [parties who] had taken adverse positions with respect to their existing obligations." Aetna Life Ins. Co. v. Ilaworth, 300 U.S. 227, 242 (1937).

53 See p. 1526 infra. In 1783 a petition was filed with the Virginia Council of State, an executive body, to remove a justice of the peace, J.P. Posey, from office for "misdemeanors, disgraceful to the Character... [of] a Justice of the peace." The Council declined to act, saying that "the Law authorizing the Executive to enquire into the Conduct of a Magistrate and determine whether he has or has not committed a certain fact is repugnant to the Act of Government, contrary to the fundamental principles of our constitution and directly opposite to the general tenor of our Laws." 3 JOURNALS OF THE COUNCIL OF THE STATE OF VIRGINIA 222 (W. Hall ed. 1952). For this citation I am indebted to an unpublished Senior Thesis submitted in 1969 by Timothy S. Perry to the Woodrow Wilson School of Public and International Affairs, Princeton University.

54 See notes 123, 141, 144, and pp. 1503, 1526 infra. The impeachment power is manifestly "judical." Art. I, § 3(6) empowers the Senate to "try all impeachments"; Art III, § 4 provides for removal on "impeachment for, and conviction of, treason" etc,; Art. I, § 3(7) provides that "Judgment in cases of impeachment"; Art. III, § 2(3) refers to "The trial of all crimes, except in the case of impeachment"; all of which plainly imply a judical trial. Such was the view spread before the Senate by Jefferson's Manual. T. JEFFERSON, MANUAL OF PARLIAMENTARY PRACTICE, reprinted in SENATE MANUAL 63-169 (55th Cong. 1899) at 149-53. The record of the Blount impeachment (1797) recites that "the Senate formed itself into a High Court of Impeachment, in the manner directed by the Constitution." F. WHARTON, STATE TRIALS OF THE UNITED STATES 257 (1849).

Judge Otis had an "easy answer" to Shartel's view that impeachment constitutes the "only way in which Congress" may remove. Impeachment, said Otis, was not "legislative" but "judicial." Otis, supra note 27 at 27-28. The decisive fact, however, is that this is the only grant of power to Congress to interfere with the "good behavior" tenure. It is the limited grant, underscored by rejection of removal by Address, not the nature of the granted power, which is conclusive.

55 Article I, 8(18) empowers Congress "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." For the power of Congress over the jurisdiction of the inferior federal courts, see Sheldon v. Sill, 49 U.S. (8 How.) 440 (1850).

I have been asked whether the "good behavior" clause constitutes a grant of power, either to Congress or to the courts. In my judgment, it constitutes no grant to either, but merely describes the duration of the granted tenure. When the condition subsequent of the grant is breached, and the breach is disputed, there exists Article III "judicial power" to determine the "case," subject to a Congressional grant of subject matter juridiction. At common law, tenure "during good behavior" did not allow arbitrary dismissal but required a formal trial, and in adopting the common law phrase, the Framers must be taken to have the same trial in view.

II. THE "IMPEACHMENT IS EXCLUSIVE" Argument

The government which has a right to do an act... must... be allowed
to select the means; and those who contend that it may not select any
appropriate means, that one particular mode of effecting the object is
excepted, take upon themselves the burden of establishing that
exception.56

As Chief Justice Marshall's remarks in McCulloch v. Maryland indicate, those who would dispute the availability of an "appropriate means" for the removal of a judge guilty of bad behavior must "take upon themselves" the burden of proof. And, as a guide to consideration of the "exclusivist" argument, I suggest another Marshall statement in the same case: "Can we adopt that construction (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers... the intention of impeding their exercise by withholding a choice of means?" 57 In terms of "good behavior," a power to declare that the tenure was terminated by bad behavior is reasonably implied, and "what is reasonably implied is as much a part of [the Constitution] as what is expressed." Where are "the words [which] imperiously require" that impeachment be the sole means for removal of judges, once it is accepted that impeachment cannot reach all breaches of "good behavior"?

A. The Constitutional Text

1958

No express terms making impeachment the exclusive means of removal are contained in the Constitution. Judge Otis sought to locate them in the Article I, § 2 provision granting the House "the sole power of impeachment," and the Article I, §3 provision giving the Senate "the sole power to try all impeachments." He labored mightily to prove that "sole" means "sole," 59 a proposition no one would deny, but he merely proved that no other body can bring or try impeachments. His deduction from "sole" that "the House of Representatives has the sole power to charge civil officers of the United States with misconduct for the purpose of securing their removal" 00 begs the question: is impeachment the "sole" means of removal? The fact that Congress has the sole right to bring and try impeachments does not answer the question whether there are other methods or removal. Judge Otis himself read into "the sole power to charge civil officers

60

with misconduct" a "necessarily implied exception to the otherwise all exclusive meaning of the word 'sole' .. It does not exclude another method of removing those civil officers whose appointment is at the absolute or conditional pleasure of the officer appointing them." 6 This "necessarily implied exception" is merely an accommodation to an uncomfortable datum-the First Congress' rejection of impeachment as the exclusive means for removal of executive civil officers; it is an abandonment of an interpretive canon run over by a brute fact.

Common sense counsels against freezing countless officials into lifetime appointments, for it would be utterly impracticable to require Congressional trials for such a multitude. 62 But common sense may also be revolted by insistence that trials of judicial misconduct, though much fewer in number, must, come what may, be conducted by Congress alone. For Congress has more pressing and important tasks, which it alone can and must perform, and which should not be deferred while it sits in judgment for from three to six weeks on charges of judicial misconduct. Weighed against the crucial and tormenting national interests which occupy the Congressional stage, such issues are really too picayune.63 We are no

56 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 409-10 (1819).

57 Id. at 408.

58 Dillon v. Gloss, 256 U.S. 368, 373 (1921): "That the Constitution contains no express provision on the subject is not itself controlling; for with the Constitution . . what is reasonably implied is as much a part of it as what is expressed."

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59 Otis, supra note 27, at 24-28. Professor Kurland quotes, presumably with approval, Congressman Celler's deduction from the "sole power" provisions: "The use of the word 'sole' in those two particulars undoubtedly is most significant [T]he conclusion is inescapable that the only way you can try these judges is by the method that the Constitution allows us Kurland, supra note 8, at 692. 60 Otis, supra note 27, at 24. The naming of the Senate as "sole" tribunal is perhaps explicable by the fact that, as Madison said, selection of the tribunal "was among the most puzzling articles of a republican Constitution The diversified expedients adopted in the Constitutions of the several States prove how much the compilers were embarrassed on this subject." Quoted in G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 142 (1969). In the Convention, the shift from a tribunal of judges to the Senate was long debated and accomplished late in the Convention. See p. 1496 infra.

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