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case or con

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 troversy,” 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. Haworth, 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. Halled. 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 "impeach'ment 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 alegislative” 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 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.

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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.” 58 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

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” 60 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 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 offcers whose appointment is at the absolute or conditional pleasure of the officer appointing them.61 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 ahandonment 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.

68 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."

69 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.

01 Otis, supra note 27, at 24.
02 See note 85 infra.
* See notes 2, 4 supra, and p. 1515 infra; cf. note 5 supra.

less free than Judge Otis to read another “necessarily implied exception” into the allegedly exclusive word “sole,” for such a reading does not turn on the demands of remorseless logic but on practical considerations to which others may attach more weight than did Judge Otis. B. Expressio Unius, Exclusio Est Alterius

A second “exclusive" argument drawn from the face of the Constitution reflects. the maxim expressio unius, exclusio est alterius, and was given its most noted formulation by Hamilton in Federalist No. 79:

The precautions for their (judges') responsibility, are comprised in the
article respecting impeachments . 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 constitution in respect

to our own judges. 64 That view has recently been espoused by Justices Black and Douglas in notable dissents.65 To one for the first time encounters the argument that the express provision for impeachment excludes all other means of removal, it comes as a surprise that a canon of construction should be exalted to an impassable Constitutional bar.66 Such canons, the Supreme Court has repeatedly indicated, merely express rules (and not “inescapable” rules) of construction, not of law.87 "Nothing," said. a great judge, Learned Hand, “is so likely to lead us astray as an abject reliance upon canons of any sort; so much the whole history of verbal interpretation teaches, if it teaches anything."'68

Indeed Hamilton himself refused to regard the maxim as conclusive where its. application “would be unnatural and unreasonable”:

Is it natural to suppose that a command to do one thing, is a prohibition
to the doing of another, which there was a previous power to do, and
which is not incompatible with the thing commanded to be done? If such
a supposition would be unnatural and unreasonable, it cannot be rational
to maintain, that an injuction of the trial by jury in certain cases (crim-

inal] is an interdiction of it in others.69 In this he was echoed by the Ratification Conventions, where a vigorous campaign was waged for an express provision for jury trial in civil cases on the ground that otherwise it was likely to be barred by the express provision for jury trial in criminal cases. The doubters were reassured by Marshall, Pendleton, Edmund Randolph, C.C. Pinckney and James Wilson.70 Wilson stated in Pennsylvania, "It is very true that trial by jury is not mentioned in civil cases . . . improper to infer from hence that it was not meant to exist under this government. $: 71 Manifestly exclusio unius was no fetish for the Founders. And even with the necessary independency of the judiciary in mind, Hamilton made yet another breach in the maxim: insanity of judges, he said, "without any formal or express provision, may be safely pronounced to be a virtual disqualification,'' 72 and presumably therefore, should justify removal. Thus he himself read an exception into the provision for impeachment, if that be the “only provision” for removal.

That practical considerations weighed more heavily with the Founders than an interpretive canon was immediately demonstrated by the First Congress which rejected the Hamiltonian "only provision” argument as an alleged bar to Presidential removal of executive officers. “Show me, ,” said Smith in the House, “where it is said that the President shall remove from office as the Constitution has not given the President the power of removability, it meant he

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THE FEDERALIST No. 79, supra note 16, at 513-14. 68 Chandler II, 398 U.S. at 136 (1970), Douglas, J., dissenting; Black, J., dissenting, id. at 141-42. 86 Black and Douglas ally it to a theory of absolute independence," of which more anon.

67 United States v. Barnes, 222 U.S. 513, 519 (1912); Jarecki v. G.D. Scarle & Co., 367 U.S. 303, 307 (1961).

68 Van Vranken v. Helvering, 115 F.2d 709, 711 (2d Cir. 1940); cf. United States v. Universal C.I.T. CrediCorp., 344 U.S. 218, 221 (1952): rules of construction“ do not solve the special difficulties in construing a part:

69 THE FEDERALIST No. 83, supra note 16, at 540. As Elias Boudinot said in the First Congress: “it is nowhere said that officers shall never be removed but by impeachment; but it says they shall be removed on impeachment." 1 ANNALS Or CONG., supra note 2, at 468.

70 Pendleton, 3 J. ELLIOT, supra note 15, at 546; Randolph, id. at 573; Pinckney. 4 J. ELLIOT 307; cf. Marshan, id. at 561.

71 2 J. ELLIOT, supro note 15, at 488.
72 THE FEDERALIST No. 79, 8upra note 16, at 514.

ticular statute.'

" 73

should not have that power, a persuasive argument under the widely held doctrine of enumberated powers.74 And he continued, “this inference is supported by that clause which provides that all civil officers . . . shall be removed from office on impeachment. ? 75 Although this view was strenuously maintained by a number of other Members, including Gerry, himself a Framer, 76 it was overcome by the argument of Madison and others that such a restrictive reading would be destructive of good government,?? that, as Sedgwick said, impeachment was a “tardy, tedious, desultory road” for the accomplishment of needed removals.78

The Madison view prevailed,?o ostensibly on the theory that the power of removal was a necessary correlative of the power of appointment, though many argued that the Senate therefore should participate in removals as in appointments.80 Impeachment, however, Madison explained, had a special purpose; it was designed to reach a bad officer sheltered by the President, who “could be removed even against the will of the President; so that the declaration in the Constitution was intended as a supplemental security for the good behavior of the public officers.”81 This point was made again and again. Impeachment, said Boudinot, enables the House “to pull down an improper officer, although he should be supported by all the power of the Executive.”82 "Favoritism,” said Baldwin, also a Framer, could not protect a man from the power of the House “in despite of the President” to “drag him from his place."83 The point bears emphasis because it reveals first, that the Founders had learned from English history of the need for power to remove evil favorites, Presidential no less than royal, and that impeachment was in essence not an exclusive medium of removal but a breach in the separation of powers for the purpose of “supplemental security,” “an exception to a principle."'84

The implication of removal power drawn from the Presidential power of appointment seems to me a weaker argument for breaching exclusivity than that which associates “good -behavior” tenure with its traditional termination by scire facias. Despite the emphasis on the relation between the power of appointment and that of removal, the motive power, in my opinion, was furnished by the exigencies of government. It simply made no sense to freeze hundreds of “civil officers” into what in effect would become life tenure, terminable only by the arduous impeachment procedure. 85 There were, however, other remarks in the First Congress noting the special position of judges; but before examining the bearing of those remarks on the intention of the Founders, it will serve chronological coherence to examine that intention first. C. The Intention of the Framers

A search for the intention of the Framers may seem gratuitous in light of Professor Kurland's statement that "it has been made pellucidly clear by Martha Ziskind that the intention was to make impeachment the sole means of removal of federal judicial officers.”’86 But in my opinion, her demonstration does not

73 1 ANNALS OF CONG., su pra note 2, at 457. Compare Justice Black's nothing in the Constitution "gives any indication that any judge was ever to be ... removed from office except” by impeachment. Chandler II, 398 U.S. at 142 (1970).

74 The debaters were reminded of the rule by Lee: “This Government is invested with powers for enumerated purposes only, and cannot exercise any others whatever." 1 ANNALS OF CONG., supra note 2, at 524. For other citations see R. BERGER, CONGRESS v. THE SUPREME COURT 13-14, 377 n.52 (1969).

75 1 ANNALS OF CONG., supra note 2, at 457. 76 Huntington, id. at 459; Gerry, id. at 473, 536. 77 Madison, id. at 496. Sylvester said the doctrine was "big with mischief, and likely to drive the whole Government into confusion.Id. at 562. Hartley said the exclusivist argument “would be attended with very inconvenient and mischievous circumstances.Id. at 480.

78 Id. at 460; see also Vining's remark, quoted supra note 2. For similar remarks by Madison, Boudinot, Hartley and Sylvester, id. at 497, 375, 480, 562.

79 As Chief Justice Taft said, "Hamilton changed his view of this matter," quoting, “ 'This mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate; of which the power of removal from office is an important instance,' " citing 7 J.C. HAMILTON, WORKS OF HAMILTON 80-81, in Myers v. United States, 272 U.S. 52, 137, 139 (1926).

80 Bland, 1 ANNALS OF CONG., supra note 2, at 374; Livermore, id. at 381, 478; White, id. at 456, 467; Page, id. at 491. Smith quoted Hamilton's statement in Federalist No. 77 that “The consent of [the Senate) would be necessary to displace as well as appoint," id. at 456, but here too the First ongi rejected Hamilton's interpretation.

81 Id. at 372 (emphasis added); similiter Vining, id. at 373; Bland, id. at 374,
82 Id. at 468; similiter Livemore, id. at 478.
83 Id. at 558; Lawrence, id. at 482.
84 Boundinot, id. at 527.

85 Boudinot rejected “perpetuity in office,” id. at 469. Sylvester said, if impeachment is "the only way of removing officers, they have all of them an inheritance in cilice." id. at 562; and see Benson, id. at 373,

86 Kurland, supra note 8, at 668.

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stand up. Referring to Shartel's' view that the Constitution does not bar judicial removal of judges by scire facias, she put her case in a nutshell:

The clearest rejection of Shartel's argument lies in the fact that no colonial or state constitution provided for such a use for the scire facias, nor was a proposal made to include it during the Constitutional Convention. Even in the unreformed common law, there was a distinction

between precedents and fossils. 87 Erskine, Holdsworth and others regarded scire facias as vital rather than fossilized ; 88 and, as we shall see, at least two of the states she cites provided for removal by courts for misbehavior, which was the purpose of the scire facias proceeding:

The reason why "no colonial constitution” provided for removal of judges by scire facias can be simply stated: almost without exception judicial appointments in the Colonies were made at the King s pleasure, terminable at his will.89 On one occasion in New York, a good behavior appointment was made in violation of instructions, and when the advice of the Attorney General and Solicitor General in England was sought as to the manner of dismissal, they regretfully pointed out that a forfeiture proceeding (by scire facias) would be required 90 –

90-a proceeding, we may be sure, that would

be brought in the name of the King, not of the Colony: Indeed, one of the grievances recited in the Declaration of Independence was that the King “made judges dependent on his Will alone for the tenure of their offices, recognition of Colonial powerlessness to interfere with their tenure. This branch of the Ziskind argument, it may be added, could with equal logic be made against the power to impeach, for impeachment of judges was likewise not a feature of Colonial practice.

In a lively, oft cited passage, John Adams painted the astonishment of his colleagues in 1774 when he suggested impeachment of judges who accepted Lieutenant Governor Hutchinson's substitution of royal salaries for the existing payment by legislative appropriations. Adams admitted that the thing was *without precedent in this Province” but said that there were precedents in England, pointing to the State Trials on his shelves. 91 In later years he was to claim that his was the only copy of the set in Boston, indeed, “that there was not another copy of those works in the United States." 92 It was not, however, ignorance of impeachments 93 but rather lack of power to impeach that accounts for the nonuse and the absence of Colonial precedents. Given the “English

Ziskind, supra note 26, at 138.

See pp. 1480-82, and note 38 supra. 69 S. MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 135, 178 (1965); B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 105–06 (1967); G. WOOD, su pra note 60, at 106. The English Board of Trade explained that an independent colonial judiciary would be subversive of that Policy by which alone Colonies can be kept in a just dependence upon the Government of the Mother Country." Quoted in Klein, Prelude to Revolution in New York: Jury Trials & Judicial Tenure, 17 WM. & MARY Q. (Ser.. 3) 439, 448 (1960). The “King in Council, disturbed with the growing colonial movement for judicial independence, had ordered the issuance of new instructions absolutely forbidding governors to grant judicial offices during good behavior ." Id. at 452. I am indebted for this and other Colonial citations to Professor Stanley N. Katz.

The background of the instructions appears in 9 ARCHIVES OF THE STATE OF NEW JERSEY (First Series 1885). Governors were cautioned that judicial “Commissions are granted during Pleasure only, agreeable to what has been the ancient Practice and usage in our said Colonies ...." Id. at 321-26, 329-30. See also p. 1481 supra. Cf. Ziskind, supra note 26, at 138.

* P. 1481 supra. In 1760, a similar “good behavior" appointment was made in New Jersey, when R.H. Morris was made Chief Justice. Later the Attorney General of England declared the appointment invalid because the Governor was limited to "at pleasure'' appointments. 9 ARCHIVES, supra note 89, at 216-09, 216, 340-51.380-81 (1885).

42 J. ADAMS, THE WORKS OF JOHN ADAMS (C.F. Adams ed. 1850) 329–30; Johnson, "William Cushing,' in 1 JUSTICES OF THE UNITED STATES SUPREME COURT 1789–1969, at 57, 58 (L. Friedman & S. Israel ed. 1969). 92 10 J. ADAMS, supra note 91, at 239. 93 Adams overlooked that Josiah Quincy, Jr. had published a letter in the Boston Gazette January 4, 1768 wherein he directed attention to the scope of impeachment in England and to the impeachments of leading figures across the centuries, drawing on Selden's Jud. Parl., Rushworth's Collections, and the Lord's Journal. QUINCY'S MASSACHUSETTS REPORTS 1761-1772 (1865) at 580–84. Several Colonial libraries in New York had various collections of the State Trials, P, HAMLIN, LEGAL EDUCATION IN COLONIAL NEW YORK 188, 193, 196 (1939); and RUSHWORTH'S HISTORICAL COLLECTIONS (1721), which reported a number of noted impeachments including that of the Earl of Stratford, reported in 775 folio pages of volume 8-were liberally sprinkled throughout the libraries of the Thirteen Colonies. For citations see H. COLBOURN, su pra note 3, Index "Rushworth." In 1734 William Smith rendered an opinion to the New York Assembly in which he quoted Article 3 of the Clarendon impeachment. J. SMITH, CASES AND MATERIALS ON DEVELOPMENT OF LEGAL INSTITUTIONS 440, 442 (1965). State Trials were referred to in the 1736 Zenger proceedings. J. ALEXANDER, A BRIEF NARRATIVE OF THE CASE AND TRIAL OF JOHN PETER ZENGER 28, 46, 49, 72 (S.N. Katz ed. 1963). References, Professor Katz tells us, were to the second edition of 1730, the Emlyn edition, id. at 215. In 1737, a letter to the Pennsylvania Gazette analyzed the case of the Seven Bishops, reported in the State Trials, id. at 193.

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